Implementation & International Monitoring on the Example of Ozone

Long before the 1992 UN Framework Convention on Climate Change, there were regional and global atmospheric chemistry environmental treaties commonly regarded as much more successful. The obvious question is why, what distinguished them, and how could this success be duplicated now in the broader GHG framework treaty setting? The downside is that most atmospheric chemistry treaties are drafted, unsurprisingly, in natural science terms to regulate specific chemicals and compounds. (Reading treaty protocols extending coverage is like reading drug disclosure documentation drafted by biochemists.) Therefore, our classmates with a natural science or engineering background may enjoy a chance to shine on the details of chemical families. But for most students, the exercise is more about compare and contrast to understand what we hopefully may learn with a view towards an eventually more effective climate change approach.

The first and still arguably most successful of the atmospheric treaties is the line of anti-ozone layer depletion treaties reaching back to the 1985 Vienna Convention for the Protection of the Ozone Layer, and its better known related 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. If the ozone depletion concept is new to you, this is the 1970s-1980s atmospheric chemistry story of ozone depletion leading to a “hole” in the stratosphere over Antarctica that lead to the award of the 1995 Nobel Prize in Chemistry. The implementation response was to ban a variety of chloroflorocarbon chemicals (CFCs, like freon) on the basis that they led to ozone depletion and increased intensity of ultraviolet radiation (increased melanoma cancer danger, particularly in the Southern hemisphere– meaning Australia, New Zealand, Southern Africa and South America– because of the stratospheric ozone “hole” over Antarctica).

The original problem was that the CFCs had certain economic uses (typically for refrigeration and as industrial solvents), and they were to be replaced by HCFCs, so arrangements were made theoretically for their immediate phase out in industrialized countries, with a separate schedule and longer term phase out for developing countries. On the example of freon, ask elderly acquaintances what it was like living in the Southeast before the broad introduction of air-conditioning and food refrigeration, not to mention the difficulty attendant on “industrialization” without any industrial solvents. The good news was that the problems were found to be solvable via newer chemicals, and the possibility of selling proprietary replacements arguably contributed to the private sector embracing the Montreal Protocol. But there were a number of unexpected developments too.

The Montreal Protocol distinguished between developed and developing countries, providing for somewhat slower implementation in developing countries due in particular to industrial uses. Some industrialized developed and industrializing developing countries were located next to each other (e.g., US and Mexico), however, which led initially to significant black market activity when quotas were imposed on US production, driving up prices. For example, most car air-conditioners prior to the early 1990s were designed for freon, as were older refrigerators and building air-conditioners. With the passage of time, older models have been junked or converted to newer refrigerants. Through the early 2000s, however, the US versus Mexican price differential for freon was significant enough to make small scale smuggling of freon very lucrative. (Back in the day, the contemporaneous urban legend was that college students would drive down from LA to Tijuana in order to buy cases of freon, which they would flip for a profit by selling them to local car and air-conditioning repair shops back home, comparable in some ways to so-called grey market branded goods.) Customs officials on the border weighed focusing their limited enforcement resources on drug smuggling, illegal immigration, or human trafficking, versus concentrating on CFCs (looking like deodorant in spray cans). So why really place their priority on the vigorous enforcement of a technical sounding ozone-depleting chemical ban seemingly involving hair spray cans? But the passage of time has lowered consumer demand for freon, and the phase-in delay for developing countries was limited to ten years. Nonetheless, the black market arbitrage possibility remains a caution for environmental treaties targeting specific chemicals, with different implementation schedules for different kinds of states, particularly if there is not a predetermined ending point for special treatment.

There were also ozone-depleting specialized chemicals like methyl bromide used as a fungicide in industrial agriculture, for which few easy replacements were initially found. (As example, methyl bromide as a gas was used to fumigate boxes of conventional oranges, preventing that bluish penicillin citrus mold, for longer shelf life of the fruit.) This led the US and other major agricultural producers to claim a “critical use” exemption in a fashion as exception that threatened to swallow up the rule. (The problem was seemingly that major agricultural exporting countries were mostly accustomed to getting their way, so felt little real pressure to pay to develop more expensive replacement chemicals that required reworking their food supply chains anyway; the early 2000s discussion revealed that some countries claimed to be making good progress on methyl bromide replacements, but felt themselves at a competitive disadvantage if other producers simply sought exemptions to continue using the existing chemical.) Initially, there were a limited number of chemical industry factories able to produce CFCs worldwide in the late 1980s, so it was possible to monitor production quantities for enforcement purposes. However, growing concerns rendered the Montreal Protocol the first atmospheric treaty in which serious thought was given to how to monitor compliance on a worldwide basis.

For civil libertarians trying to understand how intrusive the Montreal Protocol’s ban or regulation of ozone-depleting chemicals might be on a local basis, consider that one of the regulated substances was carbon tetrachloride as the chief ingredient in dry cleaning solvents. So indirectly, you had to regulate all your local dry cleaners effectively to implement the Montreal Protocol. And HCFCs as proprietary replacement chemicals were eventually themselves found to deplete ozone, so they also needed to be replaced. The Montreal Protocol itself has a long subsequent history of additions and changes to the control list of ozone depleting substances in five amendments through 2018. But despite all its implementation issues, the Montreal Protocol has been considered very successful. A further hidden benefit is that those ozone depleting chemicals were also characterized technically as “super” greenhouse gases typically (meaning have very significant GHG-warming effects, much more than simple carbon dioxide), so that the Montreal Protocol itself continues as a substantial initiative in climate change terms.

What characterized the Montreal Protocol, considered as possibly the most successful generalized atmospheric treaty to date was its modesty. It aimed at a limited problem and basically targeted specific classes of chemicals. It in no way touched on broader issues like controlling/taxing carbon dioxide, triggering the US domestic fossil fuel industry’s opposition to any GHG regulation (instead opposing scientific recognition of climate change in a manner reminiscent of the tobacco industry’s opposition to the concept that smoking causes cancer). Instead, under the Montreal Protocol, the chemical industry was brought to support technical change by offering them the opportunity to create replacement proprietary chemicals like HCFCs. So the Montreal Protocol did not quite so directly challenge the chemical industry’s longer term business model.

The second precursor atmospheric treaty is the European Convention on Long-range Transboundary Air Pollution (signed in 1979, took effect in 1983; now up to 8 protocols on finance, research and specifying atmospheric pollutants to be targeted like limits on sulfur dioxide, nitrous oxide and heavy metals). It was created as reaction to what the Germans refer to as Waldsterben, namely forest decline due to acid rain and related pollution (initially a sulfur dioxide issue, which in North America led to disagreements between the US and Canada about fish deaths in Canadian lakes). It is a regional agreement, unlike the Montreal Protocol, and it has been expanded to cover a growing list of problems since borders can be quite close in Europe, so European atmospheric problems are almost invariably of transboundary origin. But why not address such problems under Trail Smelter?

It would seem that the European Convention shares certain characteristics with the Montreal Protocol, starting with a certain degree of modesty. Our natural scientists in particular might take a look at the list of protocols and targeted substances, plus look a bit at the protocol texts (eight protocols to date). The European Convention is relatively narrow in scope addressing air pollution in fairly technical terms, and focused initially on addressing individual chemicals creating environmental problems (sulfur dioxide, nitrous oxide, heavy metals, etc.), although it later expanded to processes and atmospheric interactions. What do you think, is this simply the Clean Air Act done up as regional treaty for smaller countries, or is it something more? So to the Montreal Protocol list of attributes, the European Convention’s regional character arguably simplifies matters because the states involved are in constant contact on a wide range of other matters, and its structure allows for focus on common scientific understanding and finance issues, etc. It is notable that initially the European Convention invested a great deal of effort in process, shared scientific views and cooperation questions, only then moving on in its protocols to a widening list of controlled atmospheric pollutants and related processes.

Copyright 2020–21 © David Linnan.