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Sustainable Development Law & Policy Volume 8 Article 14 Issue 2 Winter 2008: Climate Law Reporter 2008 Landmark Agreement to Strengthen Montreal Protocol Provides Powerful Climate Mitigation Donald Kaniaru Rajendra Shende Durwood Zaelke Follow this and additional works at: http://digitalcommons.wcl.american.edu/sdlp Part of the Environmental Law Commons Recommended Citation Kaniaru, Donald, Rajendra Shende and Durwood Zaelke. “Landmark Agreement to Strengthen Montreal Protocol Provides Powerful Climate Mitigation.” Sustainable Development Law & Policy, Winter 2008, 46-50, 87-89. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. LAN D MA R K AG R EEMENT TO ST R ENGTHEN MONT R EAL PR OTOCOL PR OVI D E S POWE rf UL CLIMATE MITIGATION by Donald Kaniaru, Rajendra Shende & Durwood Zaelke* IN T RO D UC ti ON sued immediately and independently of the international climate treaty negotiations. ast September’s historic agreement under the Montreal Protocol to accelerate the phase-out of hydrochlorofluo- THE MON T REAL PRO T OCOL : Lrocarbons (“HCFCs”) marked the first time both devel- “ST AR T AN D ST RENG T HEN ” oped and developing countries explicitly agreed to accept binding In 1987, the Parties to the Montreal Protocol required a and enforceable commitments to address climate change.1 This freeze in halon production and a fifty percent reduction in the is particularly significant because the decision was taken by production of chlorofluorocarbons (“CFCs”), and have continu- consensus by the 191 Parties to the Protocol—all but five coun- ally strengthened the treaty since then as it became clear that tries recognized by the United ozone protection required that Nations.2 Accelerating the other ozone-depleting substances HCFC phase-out could reduce must be controlled and as new emissions by sixteen billion The Montreal Protocol environmentally-superior substi- tons of carbon dioxide-equiva- tutes and alternatives were devel- 3 offers additional lent (“CO2e”) through 2040. In oped. This is one of the great terms of radiative forcing, this strengths of the Protocol, and it will delay climate change by up opportunities to reduce did not arise by accident. To the to 1.5 years.4 This is because, in GHG emissions. contrary, the treaty is designed addition to depleting the ozone to be flexible, allowing the Par- layer, HCFCs also are potent ties to strengthen and fine-tune greenhouse gases (“GHGs”)— its provisions to stay abreast of with some thousands of times more powerful than carbon diox- current scientific understanding and technological capability.8 ide (“CO2”) at warming the planet. Thus, from September 2007 As Mostafa Tolba, the fomer UNEP Executive Director and both Montreal and Kyoto can be considered climate protection “father” of the Montreal Protocol, has said of the treaty’s evolu- treaties. tion: “Start and strengthen.” 9 The HCFC agreement and its climate benefits were possible Adding or removing substances from the treaty’s control largely because of the Montreal Protocol’s unique history of measures generally requires an “amendment,” which then must continuous adjustment to keep pace with scientific understand- be ratified by each Party’s government.10 Amendments can be ing and technological capability.5 The Parties to the Protocol time-consuming, often taking years, or even decades, before generally regard the treaty as fair, due to its objective techni- every Party completes ratification. For example, the most recent cal assessment bodies and its effective financial mechanism, “Beijing Amendment” agreed on in 1999 did not enter into force the Multilateral Fund. These features and others have made the until January 2001 and today is ratified only by 135 of the 191 Protocol the world’s most successful multilateral environmental agreement, phasing out ninety-five percent of global production of ozone-depleting substances in just twenty years and placing * Donald Kaniaru is an Advocate for Kaniaru & Kaniaru Advocates located in the ozone layer on a path to recovery.6 Nairobi. Mr. Kaniaru is the former Director, Division of Environmental Policy Implementation, for the United Nations Environment Programme (“UNEP”). The Montreal Protocol offers additional opportunities to Rajendra Shende is the Head of the OzonAction Branch in the Division of Industry reduce GHG emissions further, including by creating greater Technology and Economics at UNEP-Paris. Mr. Shende is an expert on the imple- incentives for the recovery and destruction of ozone-depleting mentation of multilateral environmental agreements and transfer of environmen- tally sound technologies to the developing countries, and policy advisor to more substances currently in chemical inventory or contained in than 150 governments for the implementation of the Montreal Protocol. Durwood refrigerators, air conditioners, and other products and equipment Zaelke is President of the Institute for Governance & Sustainable Development still in service or not yet disposed.7 As with the HCFC agree- (“IGSD”); Co-Director for the Program on Governance for Sustainable Devel- ment, these opportunities can achieve immediate and substan- opment, University of California, Santa Barbara; Director of the International Network for Environmental Compliance & Enforcement; and Partner in Zelle, tial reductions in GHG emissions, as well as further speed the Hofmann, Voelbel, Mason, & Getty. The authors are grateful for the research recovery of the ozone layer. More significantly, they can be pur- assistance of Thomas Higdon. WI N T ER 2008 46 Parties to the Montreal Protocol. The treaty has been amended Estimates reported by the Montreal Protocol’s Technology four times.11 and Economic Assessment Panel (“TEAP”) showed that HCFC But the Parties can change or, more specifically, accelerate use could exceed 700,000 tonnes by 2015—roughly five times the Protocol’s phase-out schedules by “adjustment,” a procedure more than the TEAP’s 1998 projection of just 163,000 tonnes.13 used six times. Adjustments do not require ratification and take The Protocol’s Scientific Assessment Panel reported in 2006 effect within six months of agreement, except for parties that that the recovery of the ozone layer to pre-1980 levels would affirmatively opt out. In the United States, for example, Con- likely be delayed by fifteen years over Antarctica, to 2065, and gress included “adjustments adopted by the Parties thereto and by five years at mid-latitudes, to 2049, with the delay at mid- amendments that have entered latitudes partly due to the high into force” in its definition of the estimates of future produc- Montreal Protocol when it incor- tion of HCFCs.14 In addition, porated its provisions into the The adjustment procedure the Environmental Investiga- 1990 Amendments to the Clean tion Agency reported in 2006 Air Act.12 was instrumental in the that HCFC emissions by 2015 The adjustment procedure could cancel out the reductions was instrumental in the evolution evolution of the Protocol. achieved by the Kyoto Proto- of the Protocol. The original text col during its first commitment of the 1987 Protocol included period of 2008–2012.15 only CFCs and halon ozone- depleting substances and required The increased HCFC use was driven partly by economic developed countries to phase out fifty percent of CFC production growth in developing countries and by a “perverse incentive” by 2000 and to freeze halon production. This was woefully inad- under the Kyoto Protocol’s Clean Development Mechanism equate in terms of protecting the ozone layer, but nevertheless a (“CDM”).16 The most commonly used HCFC is HCFC-22, political and diplomatic triumph given concerns at the time that which produces by-product emissions of HFC-23 when it is the science was not yet certain, the substitutes did not yet exist, manufactured. Under the CDM, eligible HCFC-22 producers in and the projected costs looked prohibitive. developing countries could generate Certified Emissions Reduc- Shortly after the Protocol entered into force, the science tions (“CERs”) by capturing and destroying HFC-23 by-product of stratospheric ozone depletion and the Antarctic Ozone Hole emissions.17 HFC-23 is a super-GHG with a global warming were confirmed with empirical evidence—showing that the potential (“GWP”) of 11,700.18 HFC-23 CERs could earn up situation was potentially more grave than originally perceived. to ten times the cost of capturing and destroying HFC-23 emis- The modest control measures imposed in 1987 created a market sions and are exceeding the sales revenue of HCFC-22,19 effec- for substitutes and alternatives, which were quickly developed tively subsidizing the cost of producing HCFC-22 and driving and deployed. And many businesses complied at no cost or, in its expanded use, including in applications where it has not been some cases, at a profit. As a result, the fifty percent phase-out of widely used or had already been replaced.20 CFCs by 2000 was subsequently adjusted in 1990 to require a The original HCFC control measures were not negotiated seventy-five percent phase-out by 1998 (and one-hundred per- with these higher than expected levels in mind. Originally, cent by 2000), and then adjusted again in 1992 to require a one- the Montreal Protocol required developing countries to freeze hundred percent phase-out by 1996—all within the treaty’s first HCFC consumption by 2016 at 2015 levels and phase-out one five years. Through amendment and adjustment, the Montreal hundred percent of HCFC production by 2040. It required devel- Protocol now regulates ninety-six different chemicals used in oped countries to phase out 99.5 percent of HCFCs by 2020, more than 240 sectors and thousands of applications.

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