Idaho Law Review


The Trail Smelter has a long and extensive history of pollution issues. The most recent claim against the Trail Smelter is the aerial deposition of hazardous waste theory. The Ninth Circuit has rejected attaching Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability to the Trail Smelter under the aerial deposition theory, but this holding cannot be accepted if the goal is to control pollution. Many issues arise with controlling transboundary pollution, including the enforcement of international agreements on the matter. In the absence of establishing an enforceable international treaty between the United States and Canada, CERCLA presents a viable option to help control transboundary air pollution. “Disposal’s” definition under CERCLA includes the term “deposit,” which promotes attaching CERCLA liability to foreign manufacturers for pollution harms that occur within the United States’ territorial boundaries. In order to reduce the harm caused by transboundary air pollution, and to promote CERCLA’s purpose, there is a need to recognize that CERCLA liability can attach to the aerial depositions of hazardous waste.

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