The plaintiffs in Pakootas v. Teck Cominco faced a particularly challenging legal problem: not only was a large corporation polluting their local environment, but the corporation was located in Canada, while the plaintiffs lived in the United States. Although a variety of environmental agreements have been struck between the United States and its border neighbors over the last two hundred years, the plaintiffs chose not to invoke any of these (relatively toothless) compacts. Instead, they took their case to the courts. In 2018, the Ninth Circuit held that United States courts had properly exercised personal jurisdiction over the Canadian defendant—a success for the plaintiffs, and one that future plaintiffs in transboundary pollution cases may be able to use to their advantage. However, personal jurisdiction is far from the only hurdle facing plaintiffs in transboundary pollution lawsuits. This Note argues that the United States should address transboundary pollution through an enforceable multilateral agreement rather than leaving such cases to domestic courts; identifies the North American Free Trade Agreement as a particularly promising forum for such an agreement; and briefly sketches what such a solution could look like.
On the Borderline: Pakootas, NAFTA, and the Problem of Transboundary Pollution
