It taints the skies, chokes the lungs and risks further irritating the strained cross-border relationship.
But it’s much less clear whether U.S. President Donald Trump has a legitimate case for imposing tariffs due to southbound Canadian wildfire smoke, as he has threatened.
It may have come off last week as so much political hot air, but wildfire tariffs or demands for compensation should be taken seriously in the wake of Monday’s provocative decision to impose 50 per cent retaliatory tariffs on Canadian goods starting in 30 days.
Those tariffs follow two separate threats by the American leader to punish Canada for forest fire smoke that has been blown across the Canada-U.S. border as well as the tabling of a bill by Ohio Republican Sen. Bernie Moreno that would impose tariffs on Canada, a travel ban on Canadian officials and declare Mark Wiseman, Canada’s ambassador to Washington, “persona non grata.”
Trump said he told Prime Minister Mark Carney during Sunday’s World Cup final match: “You’ve got to stop these fires from coming in and poisoning our air.”
“If we can help them, we’ll help them,” he said of Canada, “but maybe they should pay us some damages, or we should do some tariffs.”
Legal complexities of cross-border pollution
The laws around what is known as transboundary harms are almost as hazy as last week’s North American skies.
But when examining responsibility for dirty air that blows straight through international borders, most legal scholars look to the century-old case of a zinc smelting operation in Trail, B.C., about 11 kilometres from the Canada-U.S. border.
Farmers downwind, in Washington State, had long complained that sulphur dioxide emissions from the smelting process were being blown south and damaging their crops and livestock.
The U.S. government eventually complained on their behalf to Ottawa, which initially paid $428,000 in compensation and, after a years-long adjudication process that ended in 1941, agreed to adopt stricter rules to limit emissions.
But the lasting interest in the Trail Smelter case is the adjudicators’ conclusion that “no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another.”
In the 85 years since the matter was concluded, the law has “evolved,” said Neil Craik, a professor of environmental and international law at the University of Waterloo.
The right of a sovereign country not to be invaded by air pollution must now be balanced with the right of an equally sovereign country to use its territory and property as it pleases.
“The standard of conduct is now very well understood to be due diligence,” he said.
“When you think about it in the wildfire context, the question you have to ask yourself is: Is Canada exercising due diligence with respect to practices in preventing and responding to wildfires?”
That is where the political debate begins.
Political ramifications of proposed tariffs
Moreno’s bill says that Canada “has failed to take sufficient and timely measures to prevent, mitigate or respond to repeated transboundary wildfire smoke events affecting the United States.”
The U.S. Environmental Protection Agency said in a June 17 statement that officials would “remain continuously engaged with Canadian leadership at the highest levels of their government and strongly encourage them to do everything in their power to extinguish these fires as fast as possible.”
Ontario Premier Doug Ford called Trump’s wildfire tariff threats “a bunch of rubbish.”
“Maybe President Trump would offer his closest allies and friends some support rather than sit there and threaten tariffs,” he said Monday, adding that Prime Minister Mark Carney and the provincial and territorial premiers were set to discuss a national fire strategy in meetings this week in Prince Edward Island.
Canada’s wildfire response and readiness level
As of July 20, the Canadian Interagency Fire Centre put the national preparedness level at four out of five, meaning that there was significant wildfire activity in multiple jurisdictions and that the demand for firefighters and equipment was high.
Level five is reached when Canadian wildland fire officials have judged it necessary to formally request international assistance.
Ford, speaking about the major wildfires, admitted: “We seem to be going through this every single year.”
“If not ourselves, then out in Manitoba if you remember last year, and a little bit in Saskatchewan and Alberta and B.C. and Quebec, and right now in Nova Scotia. So, right across the country in fire season they have lightning hits and some other areas that may start a fire, but mostly lighting hits.”
The challenge of proving negligence
Any attempt to plead the case that Canada is not doing enough preventively or reactively to deal with wildfires “would be a very difficult and challenging case to prosecute,” Craik said.
“It’s not like Canada is doing nothing. Canada is taking steps. It’s got a fairly robust response action in terms of addressing wildfires,” he said, adding that there may be a legitimate argument that the country needs to increase efforts in response to climate change.
“The obligation isn’t for states to do everything absolutely that they can to prevent harm (to a neighbouring country). It’s to take reasonable steps.”
The word “reasonable” is not one that is often associated with Trump or his hardnose negotiation style of governance and diplomacy.
But it is a notion that could best serve both countries’ interests, as another historical example of border-crossing air pollutants shows.
This time, it’s from the 1980s and 1990s, when harmful chemicals like nitrous oxide and sulphur dioxide from American power plants and vehicle tailpipes were being released into the atmosphere, resulting in acid rain that killed off fish, algae and plankton while damaging thousands of Canadian lakes.
It was the dawn of notions like sustainable development, environmental degradation and global warming. Then-prime minister Brian Mulroney passed Canada’s Environmental Protection Act and set his sights on the cross-border irritant of American air pollution. He began by first lobbying Ronald Reagan before convincing George H. W. Bush to negotiate the Canada-U.S. Air Quality Agreement, which was billed as “a practical and effective instrument to address shared concerns regarding transboundary air pollution.”
“That was a case where the U.S. was responsible for the predominant transboundary air pollution from coal-fired generating plants,” Craik said. “The way that that was addressed was through an agreement that addresses each pollutant specifically and so there are rules and commitments to take domestic steps to address the pollution.”
In 2011, Canada and the U.S. celebrated the 20th anniversary of an agreement that had resulted in emissions causing acid rain being cut in half and those causing smog being reduced by one-third.
The answer to the newest cross-border irritant of wildfire smoke may be carried away on a southerly current and dispersed, until next season, or until the next forest fire taints the skies with an orange hue.
But even if the air clears and the air quality improves, the issue could also linger in the heart of Washington as the Trump administration seeks additional leverage in talks to renew the Canada-U.S.-Mexico free trade deal.
