Canada and the United States share a 5,000 mile border that includes over a hundred rivers and lakes, including four of the five Great Lakes (Lakes Superior, Huron, Erie, and Ontario; Lake Michigan is entirely within US jurisdiction, although it is really the same hydrologic body as Lake Huron). The US and Canada have a long history dating back to the 1909 Boundary Waters Treaty of cooperatively managing and protecting their shared waters. Historically, the two countries would diplomatically resolve transboundary water and pollution disputes, often through the International Joint Commission and its public advisory bodies. However, as citizens and environmental groups become increasingly frustrated with transboundary water diversions and pollution (and the federal government in the US), they are trying to solve environmental and water disputes the old fashioned way – by going to court.
As detailed in an excellent article by Jim Lynch of The Detroit News, "Border battles: Canada, U.S. increasingly at odds over pollution issues," cross-border water diversion and pollution disputes are growing in number and often ending up in court. Litigation is happening all along the boundary line, from Washington State/British Columbia, to North Dakota/Manitoba, and throughout the Great Lakes region.
Whether you view this as a good or bad trend depends on your perspective. Austen Parrish, a law professor at Southwestern Law School and director of the school’s Summer Law Program in Vancouver, has written extensively on the downside of this trend, noting that diplomacy and international cooperation offer hope for broader solutions than simply suing each other. Domestic litigation might undermine important binational institutions such as the International Joint Commission, and unfairly subject foreigners to laws of another nation. (For further reading, I highly recommend Austen’s article, “Trail Smelter Déjà Vu: Extraterritoriality, International Environmental Law, and the Search for Solutions to Canadian-U.S. Transboundary Water Pollution Disputes,” 85 Boston University Law Review 363 (2005)). While not endorsing this approach, Austen and Professor Shi-Ling Hsu of the University of British Columbia have also detailed how legal reforms have cleared the way for transboundary environmental litigation in Canada (see “Litigating Canada-U.S. Transboundary Harm: International Environmental Lawmaking and the Threat of Extraterritorial Reciprocity,” 48 Virginia Journal of International Law 1 (2007)).
I share those concerns, but have a slightly different perspective than my friend Austen. Measured by results and relief, going to court works. As I detailed in recent article, “Bilateral Breakdown: U.S.-Canada Pollution Disputes,” 21 Natural Resources & Environment 18 (Summer 2006), domestic courts have proven to be capable and fair in resolving transboundary water pollution and diversion disputes. The US and Canadian federal governments are often unwilling to take on these issues, since they both have glass houses when it comes to environmental problems. I have represented several environmental organizations in transboundary water protection cases, and enforcing domestic laws in domestic courts is often the only way to stop harmful water diversions and pollution. I have also proposed that with a few legal reforms, going to court can help harmonize domestic and international environmental law in the Canada-US setting (see “Transboundary Pollution: Harmonizing International and Domestic Law,” 40 University of Michigan Journal of Law Reform 681 (2007)).
