Moments in U.S. Diplomatic History

Negotiating the Montreal Protocol on Protecting the Ozone Layer


Ozone hole_AntarcticAs global concerns grow over the effect of climate change and the devastating effects it already is beginning to have on agriculture, wildlife and the economies of lesser developed countries, there has been increasing despair that such issues are too great and that the international community will never be able to agree on a robust course of action. And yet, from the not-too-distant past, is a stunning example of just what the world can do when faced with a seemingly intractable environmental problem.

Only 30 years ago, scientists were deeply concerned over the growing hole in the ozone layer over Antarctica, which helps absorb harmful ultraviolet radiation and which was caused by man-made chemicals, such as refrigerants. That spurred countries, primarily the U.S. and the European Community, to reach an agreement on limiting and then eliminating these chemicals — the Montreal Protocol.  

The Protocol supplements the 1985 Vienna Convention for the Protection of the Ozone Layer, a simple framework for cooperation and research which said very little about emissions. It is far more substantive and is designed to protect the ozone layer by phasing out the production of numerous substances that are responsible for ozone depletion. The treaty was opened for signature on September 16, 1987; it entered into force on January 1, 1989 and since then, has undergone eight revisions. The two ozone treaties have been ratified by 197 parties, which include 196 states and the European Union, making them the first universally ratified treaties in United Nations history.

As a result of the Protocol, recent studies now indicate that the ozone hole in Antarctica is slowly recovering. Climate projections show that the ozone layer will return to 1980 levels between 2050 and 2070. Due to its widespread adoption and implementation it has been hailed as an example of exceptional co-operation. UN Secretary General Kofi Annan called it “perhaps the single most successful international agreement to date.”

Key reasons for its success include resourceful ways of reaching compromise between the U.S. and EC positions, effective burden-sharing and solutions which mitigated regional conflicts of interest, and involving industry representatives in the negotiations. This stands in stark contrast to the foundering  negotiations on climate change, which have had only government representatives and less buy-in from key countries, such as China and the U.S.

Robert Reinstein served with the Department of State as Deputy Assistant Secretary for Environment, Health and Natural Resources from 1990 to 1993 and as chief U.S. negotiator for the UN Convention on Climate Change and for the Montreal Protocol to Protect the Ozone Layer. Prior to that he served  as a trade negotiator at the White House Office of the US Trade Representative (USTR), responsible for coordinating US trade policy for energy, chemicals, natural resources and environment. 

You can also read the extensive three-part Moment on the negotiations on UN Framework Convention on Climate Change (UNFCCC). Go here to read about the North American Free Trade Agreement (NAFTA), at the 1995 Beijing’s Women Conference and on the Convention on Chemical Weapons.

 

“They’re getting way into trade and they’re over their heads because it’s not just environment”  

fridge

REINSTEIN: At the time I was at the U.S. Trade Representative, responsible for energy, chemicals, and natural resources. I had been doing that for most of the ‘80s.

In ’86 a colleague who was working with me was on detail from EPA [Environmental Protection Agency] had been going to meetings at the State Department in preparation for a treaty to limit ozone-depleting substances, chemicals that destroy the stratospheric ozone layer, the biggest ones being the CFCs, chlorofluorocarbons — freon and that sort of stuff). The new treaty was to be a protocol to the 1985 Vienna Convention on Cooperation on the Ozone Layer.

He came back from an interagency meeting at State and said, “You gotta get involved in this issue. They’re getting way into trade and a lot of economic stuff, and they’re over their heads because it’s not just environment.” I went with him to the next interagency meeting, and it was very clear that they were talking about chemical trade. And being responsible for chemical trade policy, I thought, “Well, I better keep my eye on this one.”…

Q: What were the trade questions? 

REINSTEIN: There were actually three.… The first was in Article 2 of the draft treaty, how you define emissions of the ozone depleting substances (ODSs). There was a proposal that emissions be defined as the net consumption of these chemicals, measured by production plus imports minus exports – that is, the net supply for domestic use. There was a counter-proposal from the Europeans to control only production.

As it happened, about 40% of their production was not needed within Europe and was exported, so that would have given them a lock on the global market in that they could simply reduce exports in order to meet their domestic needs if the supply were ratcheted down by the treaty. That was the trade question in the definition of emissions of CFCs and other ODSs.

The second trade question was in Article 4, what to do with countries which didn’t ratify the protocol that was being negotiated. Trade restrictions had been proposed, although people weren’t clear as to how that would square with what was then the General Agreement on Tariffs and Trade (GATT), now the key function of the World Trade Organization (WTO).

The third trade-related economic issue was in Article 5, how you deal with developing countries that did not use these substances in any large quantities yet. Ninety percent of the consumption and almost all of the production was in the industrialized world in 1987, but ultimately the developing countries were coming into greater use of it, and how would you deal with them in terms of trade.…

Key uses of CFCs included refrigerants (Freon), foam blowing agents (Styrofoam), and solvents for washing semi-conductor chips. This last use was important because water leaves a trace that causes the chips not to function properly, so they used the CFCs as the solvent to wash the chips. There were only five CFCs. In addition, there were three what were called halons, bromine compounds that were also very destructive of the ozone layer. Their primary use was as a fire-retardant, especially in aircraft cockpits. These eight chemicals were the ones that were picked for the initial negotiations.

I went for my first negotiating session in April 1987 in Geneva to work on those issues. In fact, I was the chief U.S. negotiator for the control article, Article 2 of the Montreal Protocol, which not only defines how emissions would be measured but also the various control measures that would be applied to them and things of that kind. I wound up responsible for all three articles, 2, 4 and 5, and the State Department paid for my participation because USTR [the United States Trade Representative] did not have it in its budget to do environmental negotiations. For the final negotiating session in Montreal in September 1987 I was alternate chief negotiator. Richard Benedick was the chief negotiator.

But in effect we had two different delegations. Richard was most of his time in the back room arguing over what year would be the target year for reductions and what percentage reduction would be required by that year. Those two numbers went into the blanks in the article that I was negotiating, the control article.… I was actually in the chair for the U.S. in Montreal most of the time until the three final days, which were the ministerial part when Lee Thomas, the administrator for EPA, came.…

Ozone layer_1The two big ones (countries basically involved) were the U.S. and the European Community. The EU didn’t exist yet. It was the EC.…The European Union is a political entity but not a legal entity yet. Much of the negotiations were between the U.S. and the EC, and some other countries far from the equator, that is, the Nordic countries and New Zealand.

These countries were particularly concerned because the ozone layer depletion was greatest near the poles, and the resulting risk of skin cancer from ultraviolet radiation (UV-B radiation) which the ozone layer helps to shield is greatest for light-skinned people.…

One of the big events affecting the negotiations was the discovery of the ozone hole that had opened over the South Pole every spring (which is their winter, their fall). The ozone layer practically disappeared over the South Pole and to a lesser degree was also happening at the North Pole.…

Developing countries weren’t involved. They basically were absent. We had tried to get them to come, saying, “It doesn’t affect you right away because most of the use is in the industrialized countries, but down the road you’re going to need refrigerants for air conditioning and other things like that as you become developed, and you need to be present.”

We particularly tried to get the Koreans involved because they were rapidly industrializing, but they didn’t show up. They were really absent in Montreal. They came in London for the first amendment to the protocol.

Another player was Russia, still the Soviet Union.…The halons, the bromine compounds, were used for fire extinguisher equipment, particularly in airplane cockpits, and the Russians had a very big concern about being able to use the halons in their military aircraft. Those were the main players and interests. The Soviets were pretty quiet, but they and the U.S. shared an interest in protecting the use of halons for military use….The halons were very potent ozone depleters, so there was a big push to get them in to the protocol. But then there were various conditions for how rapid a phase-out you could get for them in light of possible availability of alternatives.

On the using side:  air conditioning, particularly auto air conditioning, so the U.S. auto manufacturers were very concerned. On the producer side:  several companies, notably DuPont, were working on alternatives. The hydrochlorofluorocarbons (HCFCs) and hydrofluorocarbons (HFCs) were the main substitutes. These had much lower ozone-depleting potential than the CFCs.

Earlier things that had been used as refrigerants are not considered, for example, ammonia. Our country place in New Hampshire had ammonia as refrigerant in the 1930s. Nasty stuff. Other refrigerants included hydrocarbons (propane and butane), which are highly flammable. So in other words, there were toxicity and flammability issues with the traditional refrigerants. The CFCs were the miracle chemicals that were chemically inert and safe for everything ordinary that was a risk.

It’s just that nobody had a clue that the ozone layer would be affected over the long term. It took decades from the 1940s until the 1980s before that became known.

Solving problems over dinner and beer, haggling with the EPA

Q: How did the negotiations go? 

REINSTEIN: Very, very slowly, and it was particularly this question of how you dealt with the definition of emissions. It was a stalemate between the U.S. and the EC. The rest of the world basically agreed with the U.S. They said, “What we need to do is control not just the supply but the equitable distribution of supply among countries or groups.”

I had a good friend in the EC Commission in Brussels, who had formerly been in charge of steel agreements. He and I had both negotiated steel agreements in the early ‘80s….

We went out to dinner down by the lake and drank too much beer and discussed, “How do we resolve this total stalemate between the two sides of the Atlantic?” There was no middle ground between the two emission definitions of either production or consumption.

Really, the only compromise was to control them both in a careful way:  that is, you control the production, and you also control the consumption. Then you allow for some adjustments for industrial rationalization, because you don’t scale plant utilization down below about 70% of capacity. You close the plants, one at a time, and operate other plants at 90% of capacity, so that the net output of the remaining plants is down to 60, then 50, then 40% of the original production level as you phase out the chemicals.

Some people refer to that industrial rationalization as emission trading, an early example of emission trading, but it was not really emission trading but only capacity rationalization. You could do it across borders and across companies and things like that. A lot of flexibility was built into this combined production and consumption approach.

ECThere was a little glitch in getting this combined approach through. Basically, the two of us agreed that this compromise was probably the only way out of the bind. But neither of us (representing the U.S. and EC) could propose it because we each had our instructions to hold tight on our opposite positions.

We got Ingrid Kokeras of Sweden, who represented EFTA [European Free Trade Association] countries, to propose it for us, and she proposed it, and we both said, “Hmmm. Interesting proposal. Not within my instructions, but I’ll take it home and see what the reaction is.” Well, they got agreement in Europe fairly easily.

I got agreement from everybody in the U.S. government except EPA. EPA wanted to take a hard line. They were very anti-EC.…

There was, in fact, the beginning of some bad blood between the U.S. and Europe, and it was a personal conflict between Richard Benedick and Laurens Jan Brinkhorst, who was the Director General for the Environment Directorate (DG-XI) in Brussels. Richard felt that the EC was anti-environment because they were looking out for ICI [Imperial Chemical Industries], the British chemical company who did not have the CFC substitutes yet. In that sense it was like trade competition between the companies who were in position to move into the alternative market and those who were behind the curve on it, and so it became a quasi-trade negotiation between the government officials representing them.

Richard took it personally, and Richard and EPA were totally pushing the environmental line and blaming the Director General from Brussels, Brinkhorst, as if he personally were against the environment. That was the beginning of some bad blood between the U.S. and EC, which carried over into a lot of other international environmental negotiations, including the climate treaty.

This spilled into a lot of areas. When Europe on climate had the greener position because of advantages of measures not taken for climate reasons, they came back and were really difficult throughout those negotiations to the U.S. These “non-climate” advantages came from East Germany being absorbed into Germany, with a 20% reduction up front, and Margaret Thatcher getting rid of coal for electricity generation in the UK. They had a windfall that put them in a greener position on climate, and used it to make things difficult for the U.S. A lot of that went back to the bad chemistry between the two chief negotiators on Montreal Protocol.

Also, when I couldn’t get EPA to back off and agree to the compromise that I had sold to the Europeans, it created an awkward situation at the beginning of the final session in Montreal in September 1987.…

I had to tell the EC that I still had one last hurdle in Washington for the compromise, and I managed to push it through that week. I had to push the compromise through over the objections of EPA.…

I chaired the inter-agency process that had authority over the rest of the U.S. government. I just said (at some point you have to say), “You’re being unreasonable, and we need a treaty. Not the treaty you want but the treaty everybody can agree to that will work.” And it’s the essence of trade negotiation, too.…

Going after those who didn’t sign the Protocol 

On the trade article (Article 4), there was a legal question, and I had had our USTR lawyers check it out. I had a pretty long background myself on the exceptions to free trade under Article XX of the GATT. There are certain conditions that have to be met in the headnote to Article XX, which was well-known to the GATT lawyers as well.

In Montreal, I was arguing for a three-stage kind of trade restriction:

— trade in the chemicals themselves;

— trade in the products containing the chemicals; and

— trade in products not actually containing the chemicals but made using it, namely electronics (the semiconductors).

350px-Ozone_cycle.svgThe chief negotiator for the Nordic countries was from Finland, and in the plenary session in Montreal in the first week, we didn’t have an agreement, so the Chairman said, “Will the U.S. and Finland meet over the lunch hour and see if you can resolve your differences, and any other countries interested can join them.”

Needless to say, we had a full room. We had the Commission from Brussels, we had France, we had the UK, we had a lot from Germany….

Essentially what we had was a ban on trade in the chemicals themselves with countries that don’t ratify the protocol. Trade in products containing chemicals would be restricted depending on a list to be developed later where the chemical content of the product is an important part of the value and therefore, the trade between countries being restricted under the protocol and countries who were not parties to the protocol could be affected.

For the third situation, we said there would be a feasibility study on whether trade should be restricted if it might be affected by countries not being parties to the protocol.

The whole point was to send a message to countries (like Korea) that they would not benefit commercially from staying out of the protocol.

Q: What would be the penalty?

REINSTEIN: Well, it wouldn’t be allowed to sell into our markets (i.e., the developed markets of the world) if the trade were restricted.…In other words, let’s take as an example, these small refrigerators. I’ve got a Samsung refrigerator in my country place in New Hampshire.

You have two aspects that are affected by whether CFCs are used or not:  the insulation (Styrofoam or other, using a foam-blowing chemical), and the refrigerant, so there are two different components with chemicals. The substitutes were more expensive and slightly less efficient at that time, so you had to have thicker walls, more insulation, and so on, to get the same effect. 

This would give refrigerators with the old chemicals a commercial advantage. In other words they could take over the U.S. market for those refrigerators if we didn’t restrict the trade with them, because our refrigerator people would have higher costs and would not be able to price in competition with countries that weren’t restricted on these.

Anyway, that all worked out. Everybody joined in the end, and we never had to impose restrictions. We did have to put in one caveat: In the head note to GATT Article XX it says you cannot discriminate “among countries where the same conditions prevail,” so we had to put in the protocol that even if a country wasn’t a party to the Montreal Protocol, if they could demonstrate that they were taking the equivalent actions, you could not restrict trade with them. The only country where that actually applied was Colombia. They didn’t ratify the protocol, but they were restricting use to some degree, but it was a minor point.

The whole point was a signal that countries would not benefit commercially by staying out of the protocol and undermining the effectiveness of the protocol by taking market share away from countries that were restricting the chemical use....[China was] not Party to the protocol in the early years, but now they’re one of the parties.…

The third thing we had to agree on in Montreal was in Article 5, on the developing countries. What we did was we gave them a 10-year grace period, and we also put in a trigger in terms of per capita use of the chemicals. They had a 10- year grace period unless they tripped the target, the per capita target, in less than 10 years, in which case the same control limits on industrialized countries would also be applied to them.… It wasn’t a conversion issue, as it was in industrialized countries with millions of dollars already investing in the existing technology. It was a future development, future construction issue.…

“This is the most successful global environmental agreement ever done”  

Montreal graphThis is the most successful global environmental agreement ever done…. [The Protocol] actually has worked in terms of it achieving an environmental result. We’ve added a number of ozone-depleting chemicals since 1987.

I also was involved in two subsequent major negotiations on ozone protection. The London Amendment to the Protocol was added in 1990, where we added more chemicals and we changed from a 50% reduction by 1992 agreed in Montreal to a 100% phase-out. In other words, the signal to industry to get the substitutes and the technology for using them up and running worked.

Industry was directly involved. They were in the room with us. I had people from the chemical industry sitting right behind me on occasion when I was negotiating, and if I had a technical question I couldn’t answer, I would turn around and ask one of the industry people behind me. Actually, I could answer most myself, because I taught chemistry more than 20 years earlier.

As an example of a relevant technical question, when we were adding 1-1-1 trichloroethane in 1990, somebody said, “Well, why don’t we put all forms of the chemical under the controls (1-1-1 and 1-1-2, depending on where the methyl radical is located on the ethane molecule).

I turned around and asked, “What’s the difference in terms of ozone depletion effect and also in terms of uses between 1-1-1 and 1-1-2? These are two different forms of the molecule?”

They said, “1-1-2 is totally different. You don’t want to regulate it. It doesn’t have any effect on the ozone layer, and its uses are totally different. We haven’t even studied them in terms of substitutes because it’s not an ozone problem.” So they were right there with the answers I needed.

We had an informal meeting in The Hague in October 1988, where we established a Technical and Economic Advisory Panel (TEAP), which was jointly composed of government and industry experts, to assess the technology, economics, and feasibility and timing of phasing out the existing chemicals and adding new chemicals. This updating of the protocol in light of technical and economical feasibility is an ongoing process. That’s another aspect of the Montreal Protocol that was extremely important.

Industry had an equal role. This is not at all the case with the Intergovernmental Panel on Climate Change (IPCC) or the two subsidiary bodies under the Climate Convention, which are government only. Industry is on the outside and the attitude of governments is they don’t really need to be listened to. But for the Montreal process, they were and continue to be (I hope) equal partners. In other words we negotiated the Protocol and its subsequent amendments with industry and with other governments simultaneously.…

The phase-out for the first generation of substitutes, the HCFCs (which had been added to the protocol by the 1990 London Amendment) was negotiated informally in Brussels prior to the formal negotiation of the 1992 Copenhagen Amendment, where I was the chief negotiator. There was a gradual phase-out for servicing existing equipment as part of that deal.

Anyway, a lot of these little feasibility details — how you take care of existing equipment, how you phase out things, what kinds of things or uses get exceptions and so on — were all done very, very carefully in cooperation with industry and in a spirit of cooperation basically between the U.S. and the EC (by then EU).

It was accepted that this was something that needed to be done, and the conditions between Europe and the U.S. were different. We were ahead of the game on the substitutes in 1987. We had more problems with some of the uses for the substitutes in 1990 and 1992, but basically we spoke the same language and had the same objectives, and we were able to work around our differences. There was no bad blood. The chemistry was still pretty good among those of us who had worked together already from early 1987, and it was a well-designed treaty.

 

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