Ecology Law Quarterly
Volume 16 | Issue 2
Article 2
March 1989
Underestimating Ozone Depletion: The
Meandering Road to the Montreal Protocol and
Beyond
Diane M. Doolittle
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Recommended Citation
Diane M. Doolittle, Underestimating Ozone Depletion: The Meandering Road to the Montreal Protocol and Beyond, 16 Ecology L.Q.
(1989).
Available at: http://scholarship.law.berkeley.edu/elq/vol16/iss2/2
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Underestimating Ozone Depletion:
The Meandering Road to the
Montreal Protocol and Beyond
Diane M. Doolittle*
INTRODUCTION
For decades, speculation about ozone depletion haunted only the
back rooms and attics of environmental debate. It was raised by some
environmentalists as a specter of the apocalypse, and at the same time
denied by others as unsubstantiated imaginings. Over the last three
years, however, the debate over ozone depletion has changed. Now,
ozone depletion is a scientific certainty,' and discussion of ozone depletion has entered the mainstream. Time magazine reports on the effects of
ozone thinning, 2 the NBC Evening News discusses the causes of deple-4
tion 3 and the McNeil/Lehrer News Hour analyzes potential solutions.
With this recent attention has come seemingly decisive action to
deal with ozone depletion on an international scale. On January 1, 1989,
the terms of the Montreal Protocol on Substances that Deplete the
Ozone Layer 5 went into effect. Negotiated under the auspices of the
United Nations Environment Programme (UNEP), and signed by the
Copyright © 1989 by
ECOLOGY LAW QUARTERLY
* Candidate for J.D. 1989, School of Law (Boalt Hall), University of California at
Berkeley; Certificat D'Etudes Politiques 1986, L'Institut d'Etudes Politiques, Aix-en-Provence, France; A.B. 1985, Woodrow Wilson School of Public and International Affairs,
Princeton University. Many of the ideas for this paper came from the International Environmental Law seminar at Boalt Hall taught by Professor David Caron. I would like to thank
Professor Caron for his guidance.
1. See NASA, Executive Summary of the Ozone Trends Panel (Mar. 1988); see also
Shabecoff, Study Shows Significant Decline in Ozone Layer, N.Y. Times, Mar. 16, 1988, at
A25, col. 3.
2. See Lemonick, The Heat is On: Chemical Wastes Spewed into the Air Threaten the
Earth's Climate, TIME, Oct. 9, 1987, at 58 [hereinafter Lemonick, The Heat is On]; Lemonick,
Deadly Danger in a Spray Can: Ozone-Destroying CFC's Should be Banned, TIME, Jan. 2,
1989, at 42 [hereinafter Lemonick, Deadly Danger].
3. See NBC Evening News (film clip of Senator Albert Gore, Mar. 16, 1988). Senator
Gore has been interested in atmospheric problems for several years and outlines the nature of
his involvement in Gore, The Greenhouse Effect, in 1 EFFECTS AND CHANGES IN STRATOSPHERIC OZONE AND GLOBAL CLIMATE 63 (EPA & United Nations Environment Programme eds. 1986).
4. McNeil/Lehrer News Hour (PBS television broadcast, Mar. 25, 1988).
5. Montreal Protocol on Substances that Deplete the Ozone Layer, done Sept. 16, 1987,
26 I.L.M. 1554 (ratified by the United States Mar. 14, 1988, entered into force Jan. 1, 1989)
[hereinafter Montreal Protocol or Protocol].
ECOLOGY LAW QUARTERLY
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United States along with many other industrialized nations and a few
developing ones, the Protocol seeks to "protect the ozone layer by taking
precautionary measures to control equitably total global emissions of
''
substances that deplete it. 6
This Comment reviews the history of ozone depletion and the international regime set up to solve the problem. The Comment also explains
the important provisions of the Montreal Protocol and attempts to determine if the Protocol has lived up to its ambitious goal. The Comment
begins with a description of the process by which chlorofluorocarbons
(CFC's) break down ozone molecules in the atmosphere and how, over
the last twenty years, scientists working on behalf of industry and the
U.S. Government often have underestimated the seriousness of ozone depletion and its effect on the environment. The Comment then describes
how these miscalculations resulted in incomplete attempts to solve the
depletion problem prior to the Montreal Protocol. Next, I review the
important terms of the Montreal Protocol itself and suggest that
although it represents a tremendous step forward, it, too, is marred by
the optimistic underestimates that have characterized the discussion of
ozone depletion for over twenty years.
Finally, I conclude that, although the notion of ozone depletion has
moved into the mainstream, questions concerning the extent and rate of
depletion and the possibilities for implementing environmentally safe
substitutes for CFC's remain largely unanswered. Until the United
States or some other actor accepts responsibility for definitively researching the scope and dangers of ozone depletion, for taking bold action in
researching and developing environmentally safe substitutes, and for
sponsoring a truly comprehensive international agreement, a cure for
ozone depletion will remain elusive.
I
ASSESSING THE PROBLEM OF OZONE DEPLETION
Ozone is a three-atom molecule that constitutes less than one molecule in every 100,000 in the upper atmosphere. 7 Ozone is produced when
the sun's ultraviolet radiation with wavelengths below 242 nanometers
reacts with ordinary oxygen. 8 It is destroyed when it reacts with radiation at longer wavelengths (wavelengths between 230 and 290 nanometers) or when it reacts with other substances, such as oxides of nitrogen
or chlorine. 9 Thus, "ozone is constantly being produced and . . . de-
stroyed in the stratosphere."' 10
6.
7.
8.
9.
10.
Id. preamble.
Meadows, The Hole Story, L.A. Times, Apr. 3, 1988, pt. V, at 1, col. 1.
Gribbin, The Ozone Layer, NEW SCIENTIST, May 5, 1988, at 4.
Id. at 3, 4.
Id. at 3.
1989]
OZONE DEPLETION
For human life to continue on earth, a proper level of ozone must be
maintained in the upper atmosphere or "stratosphere."'" Stratospheric
ozone absorbs damaging ultraviolet rays from the sun and prevents them
from reaching the earth's surface. 12 As Dr. Robert Watson of NASA
put it, "without the ozone shield Earth dwellers would stand about as
13
much chance of survival as a lobster at a clambake."
14
The problem of ozone depletion is simple in theoretical terms. If
chemicals are released into the atmosphere that increase the rate of destruction of stratospheric ozone, the equilibrium between the amount of
ozone produced and the amount destroyed will be disturbed. As a result,
the total amount of stratospheric ozone will decrease, depleting the ability of the stratospheric ozone layer to absorb dangerous ultraviolet rays.
In practical terms, however, questions of whether and to what extent the ozone layer has in fact been depleted, what causes this depletion,
and what effects this partial depletion might have on the environment,
have proven to be anything but simple. Indeed, from its earliest days the
discussion of ozone depletion in the scientific community has been
marked by controversy and a persistent tendency to underestimate the
seriousness of the depletion problem.
At times, scientists have seemed blind to evidence of ozone depletion. Five years after the phenomenon of ozone depletion was discovered, 15 the Meteorological Office of the United Kingdom postulated that
ozone depletion was almost perfectly counterbalanced by ozone created
by the release of carbon dioxide into the atmosphere. 16 This reportlater proven incorrect-theorized that the ozone layer had "actually increased about 6% since monitoring began in the 1920's."' 17 Similarly,
American scientists studying the ozone layer over the Antarctic assumed
that data showing a 30% or more decline in ozone were inaccurate, and
programmed their computers to ignore such figures. 18 In 1985, however,
11. Ozone Depletion, the Greenhouse Effect and Climatic Change: Hearings Before the
Subcomm. on Environmental Pollution of the Senate Comm. on the Environment and Public
Works, 99th Cong., 2nd Sess. 53 (1986) (statement of Dr. Robert T. Watson, Director of
NASA's Upper Atmosphere Program).
12. Id.
13. Id.
14. See generally EPA, CFC's AND STRATOSPHERIC OZONE (1987).
15. The earliest assertion that the ozone layer was thinning is usually attributed to an
article published by two scientists, Mario Molina and F. Sherwood Rowland, in 1974. See,
e.g., Taubes & Chen, Made in the Shade? No Way, DISCOVER, Aug. 1987, at 64 (referring to
Molina & Rowland, StratosphericSink for Chlorofluorocarbons: ChlorineAtoms Catalyzed Destruction of Ozone, 249 NATURE 810 (1974)).
16. Allaby, Environment, in 1979 BRITANNICA BOOK OF THE YEAR 356, 362.
17. Id. Recent scientific studies prove that this was false. See, e.g., NASA, supra note 1,
at 2; Airborne Antarctic Ozone Experiment, Fact Sheet: Initial Findings from Punta Arenas,
Chile (Sept. 30, 1987) (sponsored by NASA, National Oceanic and Atmospheric Administration, National Science Foundation, and Chemical Manufacturers Association).
18. Lemonick, The Heat is On, supra note 2, at 62.
ECOLOGY LAW QUARTERLY
[Vol. 16:407
a group of British scientists reported springtime decreases of more than
40% in the amount of atmospheric ozone in the atmosphere over Antarctica between 1977 and 1984.19 A consensus on the reality of ozone depletion was not achieved until 1988, when NASA published the research
results of its Ozone Trends Panel-a group of over one hundred scientists that spent more than seventeen months studying worldwide ozone
depletion. 20 This report proved the existence of ozone thinning and of an
21
Antarctic ozone hole.
Scientific discussion of the causes of ozone depletion has also been
marked by controversy. Scientists have not all agreed on what causes
ozone depletion. 22 Indeed, the Climatic Impact Assessment Program of
1971 concluded that the use of supersonic jets would contribute significantly to the depletion of the ozone layer. 2 3 In 1975, however, Mario
Molina and F. Sherwood Rowland published a letter in Science 24 that
pointed the finger at chlorofluorocarbons, or "CFC's." First produced
by General Motors chemists in 1928,25 CFC's were hailed as "industrial
27
angels." 26 They are non-toxic, odorless, non-flammable, and inert.
Presently, industry worldwide uses over 2.1 billion pounds of CFC's each
year-worth some $2.2 billion-as coolants in refrigerators and air conditioners, propellants in aerosol spray cans, components in the manufacture of plastic foam, and in cleaning solvents, as well as for several other
purposes.
28
Most of these CFC's eventually reach the stratosphere, though this
journey may take as long as ten years. 29 There, ultraviolet rays break
19. Stolarski, The Antarctic Ozone Hole, 258 Scl. AM. 30 (1988).
20. See NASA, supra note 1; see also Maugh, Long-Awaited Study Shows Ozone Depletion
Far Worse than Expected, L.A. Times, Mar. 16, 1988, pt. I, at 4, col. 4; Shabecoff, supra note 1,
at A21, col. 3.
21. Shabecoff, supra note 1, at A21, col. 3.
22. See, e.g., Taubes & Chen, supra note 15, at 67-68.
23. Id. at 67.
24. This letter served as a companion to their article in Nature, supra note 15, Which
identified ozone depletion as a serious problem. Letter to the Editor, 190 Scd. 1038 (1975).
25. Lemonick, The Heat is On, supra note 2, at 61.
26. Eberlee, Ozone Layer. and Warming CFC's, INT'L PERSPECTIVES, July-Aug. 1987, at
23.
27. Id.
28. Shabecoff, The Race to Find Substitutes, N.Y. Times, Mar. 31, 1988, at DI, col. 4.
29. Dr. Alex Chisolm, Director of Environment for"Canada's Atmospheric Processes Research Branch, who was the scientific expert on the Vienna Convention negotiating team, explained this process as follows:
CFC's may enter the troposphere (the lower atmosphere) almost immediately after
product use. CFC's in aerosol sprays enter the atmosphere directly. The electronics
solvent, called CFC- 113, is a liquid. But it has a low vapor pressure and thus evaporates readily....
...
CFC's in polystyrene foam packages, such as hamburger packages and egg
cartons, escape by diffusing through the porous material. CFC's will also escape
when the packages are burned. Those used in flexible foam cushions also enter the
Freons may enter the atmosphere by the normal wear
atmosphere by diffusion ....
1989]
OZONE DEPLETION
down the CFC's, releasing chlorine atoms. The chlorine atoms then react with and destroy ozone, forming chlorine oxide, a compound that
can, in turn, react with and destroy even more ozone molecules.30 Dr.
George Paraskevopoulos, a National Research Council scientist, says
that "[o]ne chlorine atom could destroy a million ozone 3molecules before
some other chemical comes along to stop the process." '
In response to Molina and Rowland's 1975 letter, scientists employed by the industrial producers and consumers of CFC's denied that
CFC's played any role in ozone depletion. Scientists employed by E.I. du
Pont de Nemours and Co. (Du Pont), for example, refused to accept
laboratory tests that reportedly proved chlorine's destructive effect on
ozone.3 2 For many years industry scientists effectively attacked scientists
who supported Molina and Rowland's analysis by labeling them as environmental activists who were pursuing political rather than scientific
33
goals.
While scientists cannot state definitively what and how widespread
the effects of ozone thinning will be on human health, they anticipate
that it will be severe. Some scientists estimate that every 1% decrease in
the ozone layer allows 2% more ultraviolet radiation to reach the
Earth. 34 Increased exposure to ultraviolet light is expected to bring
about a rise in skin cancers. 35 The Environmental Protection Agency
(EPA) estimates that, in the absence of remedial measures, there will be
155 million additional cases of skin cancer and 3.2 million additional
36
cancer deaths due to ozone depletion over the next century.
Ultraviolet radiation also kills plant. life, reducing yields from agricultural crops such as soybeans. Laboratory research suggests that an
increase in radiation equivalent to what would result from a 25% loss of
ozone could reduce soybean yields by 20-25%.
37
Ultraviolet radiation
also adversely affects marine phytoplankton, microscopic plants that exist in the Antarctic Ocean.3 8 It slows their photosynthesis and, when
and tear endured by discarded appliances [e.g., refrigerators and air conditioners] at
the city dump.
Eberlee, supra note 26, at 24.
30. Lemonick, The Heat is On, supra note 2, at 61.
31. Eberlee, supra note 26, at 24. Other estimates place that number at around 100,000.
Lemonick, The Heat is On, supra note 2, at 62 (quoting Sherwood Rowland).
32. Taubes. & Chen, supra note 15, at 65.
33. Id.
34. Maugh, supra note 20, at 19, col. 1.
35. Id. Dr. Robert Watson, a scientist with NASA, indicated that "'[flor white-skinned
people, every 1% ozone depletion increases by 3-5% the number of people who contract
nonmelanoma skin cancer.'" 6 More Nations Will Sign Pact to Save Ozone, San Francisco
Chron., Mar. 6, 1989, at A15, col. 2, A16, col. 5.
36. Shabecoff, As Ozone is Depleted, Much of Life Could Go With It, N.Y. Times, Apr.
17, 1988, § 4, at 28, col. 1.
37. Id.
38. Id
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[Vol. 16:407
raised 10%, the radiation kills them off almost entirely. 39 Phytoplankton
are the food source of krill, a species of shrimp, which is the principal
source of food for squid, fish, penguins, seals, and whales. 4° In addition,
phytoplankton are the food source of zooplankton, microscopic marine
41
animals upon which many larger animals feed.
One scientist, testifying before the U.S. Senate, hypothesized that
CFC's may soon account for one-third of the greenhouse effect, a phenomenon known to cause global warming. 42 This warming pattern could
cause severe climatic changes and environmental alteration-for example, glacial melt and thermal expansion will significantly raise the sea
level. If such an event occurs, one study concluded, the United States
43
could lose 50-80% of its coastal wetlands.
II
THE RESPONSE TO OZONE DEPLETION
In the years preceding the negotiation of the Montreal Protocol, several groups took definite steps to address the issue of ozone depletion.
Industries that produce and consume CFC's denied the existence of the
problem and argued that no response was necessary. Experts in federal
government agencies, such as EPA, and international organizations, such
as UNEP, attempted to develop viable political solutions to the problem
of ozone depletion. In the following section, I present and analyze the
responses of industry, EPA, and UNEP.
A.
The Response of Industry Analysts
Producers and consumers of CFC's took an immediate and understandable interest when scientists suggested that CFC's were causing
ozone depletion." As discussed above, CFC's are widely used in a broad
spectrum of industries, ranging from refrigeration and air-conditioning
to foam insulation and electronics.4 5 CFC production is a major indus39.
Id.
40. Id.; see also Brady, In Antarctica, New Threats to the Fragile Web of Life, N.Y.
Times, Feb. 14, 1989, at B5, col. 1 (nat'l ed.). Scientists have been unable to determine thus far
whether the ozone depletion already recorded has damaged Antarctic life "because no census
has yet been taken of the natural density of the food supply." Id. at BI0, col. 3. Experimental
evidence, however, indicates that "serious damage is possible." Id.
41. Shabecoff, supra note 36, § 4, at 28, col. 1.
42. See Global Warming: Hearing on S. 503 Before the Subcomm. on Toxic Substances
and Environmental Oversight of the Senate Comm. on Environment and Public Works, 99th
Cong., 1st Sess. 35 (1985) (testimony of Dr. Ralph J. Cicerone, Director, Atmospheric Chemical Division, National Center for Atmospheric Research).
43. OFFICE OF AIR AND RADIATION, EPA, t AN ASSESSMENT OF THE RISKS OF STRATOSPHERIC MODIFICATION 47 (1986).
44.
Taubes & Chen, supra note 15, at 65.
45. See Steed, Point/Counterpoint: Global Cooperation, Not Unilateral Action, ENVTL.
F., July/Aug. 1988, at 15, 19; see also supra note 28 and accompanying text.
1989]
OZONE DEPLETION
try, and the United States accounts for a sizeable portion of the world
46
supply-about 29% of world production and sales. ,
Moreover, CFC's are an important source of revenue for some of
these corporations. Du Pont, for example, earns approximately $600
million annually-roughly 2% of its gross income-from the production
and sale of CFC's. 4 7 These companies have spearheaded industry response through the formation of lobbying groups 48 and scientific research
groups designed to find alternatives to CFC's. 49 Producers have formed
an industry association, the Association for a Responsible CFC Policy, in
50
response to the ozone issue.
Industry analysts initially responded to the problem of ozone depletion by denying that the problem existed. 51 Industry lobbyists urged
Congress not to "act precipitously" by regulating CFC's while their role
in ozone depletion remained an "unproven theory. '52 These arguments
"overwhelmed and temporarily silenced the scientific community. ' 53
But, as the scientific evidence against CFC's has grown stronger
over the years, industry slowly has begun to concede the need to regulate
or eliminate CFC's. 54 For example, the Association for a Responsible
CFC Policy, sponsored by Du Pont and twelve other companies, has attempted to create or discover safe and economically viable substitutes for
CFC's. 55 On March 24, 1988, Du Pont-by far the largest U.S. producer
of CFC's-publicly announced its commitment to phase out CFC
56
production.
This decision, however, does not reflect a firm industrial commitment to respond quickly to the ozone danger. According to David
Doniger, a senior attorney with the Natural Resources Defense Council
(NRDC), "Du Pont has set no schedule for [phasing out CFC's] and it
46. Shabecoff, supra note 28, at DI, col. 4. According to EPA, only seven firms are
believed to produce the ozone-depleting chemicals specified in the Montreal Protocol. Du
Pont, Allied Signal, Inc., Pennwalt Corp., Kaiser Chemicals, and Racon Inc. produce CFC's;
Du Pont, Great Lakes Chemical Corp., and ICI Americas Inc. produce halons. EPA, Environmental News: EPA Sets Final Rules for Cuts in CFC Production to Protect Ozone Layer 2
(Aug. 1, 1988) (press release); see also 52 Fed. Reg. 47,406 (1987).
47. Louis, Du Pont to Ban Products that Harm Ozone, San Francisco Chron., Mar. 25,
1988, at Al, col. 4.
48. See Taubes & Chen, supra note 15, at 65.
49. See Shabecoff, supra note 28, at D6, col. 3.
50. Id.
51. Taubes & Chen, supra note 15, at 65.
52. Id. (quoting Ted Cairns of Du Pont).
53. J. Kindt & S. Menefee, The Vexing Problem of Ozone Depletion: International Environmental Law and Policy 12 (1987) (unpublished manuscript) (available in Ecology Law
Quarterlyfiles).
54. See, e.g., Steed, supra note 45, at 15; see also Louis, supra note 47, at AI, col. 4.
55. McNeil/Lehrer News Hour, supra note 4 (comments of Joseph Steed, Environmental
Manager of Freon Products Division, Du Pont).
56. Louis, supra note 47, at Al, col. 4.•
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still opposes any move to phase-out U.S. production and use prior to
reaching a new international agreement." '57 Du Pont itself does not appear to be unambiguously committed to its pledge to reduce CFC production. Only three weeks before conceding the partial responsibility of
CFC's for ozone depletion, Du Pont Chairman Richard Heckert said the
company did not intend to halt the production of CFC's because "scientific evidence does not point to the need for dramatic ...
reductions." 5 8
Only three days before Du Pont's announcement, Joseph M. Steed,
Environmental Manager of the Freon Products Division of Du Pont,
suggested that a mandatory phaseout of CFC's by as early as 1993 could
have undesirable consequences. 59 For example, if the supply of CFC's
used in refrigeration were cut off before adequate substitutes were made
available, present food distribution methods would be crippled, posing
health dangers. 60 Currently, 75% of the nation's food supply is refriger61
ated at some point before consumption.
Finally, Steed has noted that CFC's are essential to keep electronic
equipment clean. If their use is severely curtailed before suitable alternatives are developed, the reliability of electronic equipment would be
threatened. "[C]leanliness determines the reliability of the electronic
product. We are not talking here about stereos and television sets. How
about the computer systems running our national defense, our airline
62
traffic, our entire communications network?"
Admittedly, research and development of economically sound and
environmentally safe alternatives is expensive and time consuming.
However, analysts and researchers outside of the CFC producer group
argue, with some persuasiveness, that Mr. Steed and others have overestimated the importance of CFC's and underestimated the viability of
alternatives.
A number of companies, including some smaller companies, have
already developed so-called "safe" CFC's. 63 CFC's that contain hydrogen, for example, degrade more rapidly than the existing CFC's that con57. Ozone Depletion Worsens, NRDC Leads Drive for Total CFC Phase-out, NRDC
NEWSLINE, May/June 1988, at 8.
58. Louis, supra note 47,*at Al, col. 4. For general information on industry response, see
STRATOSPHERIC OZONE PROTECTION PROGRAM, OFFICE OF AIR AND RADIATION, EPA,
How INDUSTRY IS REDUCING DEPENDENCE ON OZONE DEPLETING CHEMICALS (1988).
59. Shabecoff, Industry Acts to Curb Peril in Ozone Loss, N.Y. Times, Mar. 21, 1988, at
Al, col. 1. Steed argued that alternatives would either be unavailable or insufficiently tested.
" 'Nobody wants to go with a product that will be in everyone's kitchen and find it is toxic.'"
Id. at A15, col. 1.
60. Id.
61. Id.
62. Id.
63.
See Shabecoff, supra note 28, at D6, col. 3; see also Jones, In Search of the Safe CFC's,
NEW SCIENTIST, May 26, 1988, at 56; Monastersky, Decline of the CFC Empire, 133 ScI.
NEWS 234, 235-36 (1988).
1989]
OZONE DEPLETION
tain chlorine. 64 One such alternative, CFC-22, depletes 80% less ozone
than the CFC that it would replace. 65 Other CFC's, such as CFC-152a,
replace chlorine with fluorine, which does not threaten the stratosphere. 66 While "safe" CFC's are presently more expensive than ordinary CFC's, this may soon change. 67 Petroferm, Inc., in conjunction
with American Telephone & Telegraph Company (AT&T), has been
testing a "safe" CFC product called BIOACT EC-7. 68 AT&T believes
that it can use BIOACT EC-7 to replace as much as 4.5 million pounds
69
of the "unsafe" CFC-1 13, which is used to clean electronic equipment.
In some cases, changes in the industrial processes that now require
CFC's could eliminate the need for their use, or at least prevent their
escape into the atmosphere. Engineers in England believe that CFC's
could be replaced with water as a cleaning agent for certain electronics
products. 70 Other changes could decrease the amount of CFC's that escape into the atmosphere. By reducing the number of valves and seals in
coolant systems, for example, designers could decrease the CFC's released into the atmosphere resulting from leaks in, or the maintenance of,
71
such systems.
Finally, methods of recapturing CFC's used in the manufacturing
process before they are released into the atmosphere have already been
developed, though they are undeniably expensive. 72 For example, to
arrest the escape of CFC- 113, which is used for degreasing and cleaning,
companies can use distillation equipment to boil off, condense, and collect the solvent for reuse. Companies can then clean the contaminated
73
gases with activated carbon.
The CFC industry now seems willing to concede the role of CFC's
in ozone depletion and admits the resulting need to regulate or replace
64.
A. MILLER & I. MINTZER, THE SKY IS THE LIMIT: STRATEGIES FOR PROTECTING
THE OZONE LAYER 7 (World Resources Institute, Research Report No. 3, 1986).
65. Id. at 16.
66. Id. at 7.
67. Id. at 16.
68.
Monastersky, supra note 63, at 236. BIOACT EC-7 is derived from terpene hydro-
carbons that can be extracted from natural products, including citrus fruit rinds and wood.
Shabecoff, supra note 28, at D6, col. 3. For examples of developments by other companies, see
id.; Cardboard Cuts Out Threat to Ozone Layer, NEW SCIENTIST, Mar. 17, 1988, at 42; Jones,
supra note 63, at 56; Monastersky, supra note 63, at 236.
69. Monastersky, supra note 63, at 236.
70. See Electronics Brought to Book Over Ozone Damage, NEW SCIENTIST, Apr. 21, 1988,
at 37.
71. A. MILLER & I. MINTZER, supra note 64, at 16. However, automobile air conditioning units, which account for almost one third of CFC 12 consumption, currently cannot be
altered as easily as can stationary refrigeration and air conditioning units. Id. "[Tjhe current
price of CFC's isn't high enough to induce consumers and manufacturers to make the necessary adjustments." Id.
72.
73.
See id.
Id.
ECOLOGY LAW QUARTERLY
[Vol. 16:407
CFC's. But industry analysts have done so only grudgingly, and they
remain convinced of the tremendous importance of CFC's and the disastrous effects of rapid reforms. In this posture, industry remains an unlikely source or supporter of a truly comprehensive and effective response
to the problem of ozone depletion.
B.
The Response of Domestic Governmental Agencies
The reaction of governmental policymakers to the problem of ozone
depletion has varied widely. Prior to 1981, EPA officials and other government analysts accepted that it was a problem and actively pursued a
domestic solution. In less than two years after Rowland and Molina first
hypothesized that CFC's from aerosols destroyed ozone, a federal interagency task force recommended a national prohibition on the use of these
chemicals as propellants within three years. 74 By 1978 EPA, under the
authority of the Toxic Substances Control Act (TSCA), 75 had banned the
manufacture, processing, and distribution of aerosols except for "essential or exempted uses."' 76 After the ban took effect, people assumed that
77
the problem had been solved.
In addition to TSCA, the 1977 amendments to the Clean Air Act 78
include several provisions designed to protect the stratosphere. 7 9 The
Act calls for a multi-agency program of research and monitoring of stratospheric ozone.8 0 It also encourages greater U.S. cooperation with other
nations, directing the President to enter into international agreements to
further research and the development of standards and regulations to
protect the stratosphere. 8 1 Section 157(b) requires the EPA Administrator to promulgate regulations to control substances or activities that reasonably may be expected to affect the stratosphere and therefore likely to
82
endanger public health and welfare.
When President Ronald Reagan began his first term in 1981, many
agencies and government analysts lost their zeal for resolving the prob74. Allaby, Environment, in 1976 BRITANNICA BOOK OF THE YEAR 323, 325.
75. 15 U.S.C. §§ 2601-2629 (1982 & Supp. IV 1986).
76. 40 C.F.R. § 762.45-.55 (1987). "Essential uses" include pesticides for flying insects,
lubricants or coatings for electrical or electronic equipment, and uses essential to the U.S.
defense. Id. § 762.58.
77. Lemonick, The Heat is On, supra note 2, at 62. This is because during the 1970's,
CFC's used as aerosol propellants constituted over 50 percent of total CFC consumption in the United States. This particular use of CFC's now has been reduced by
approximately 95% of the amount consumed in ... 1974 .... [However,] CFC use
has continued to expand in other applications .... Total production in the United
States now has surpassed pre-1974 levels.
EPA, supra note 46, at 3.
78. Pub. L. No. 95-95, 91 Stat. 685 (codified in scattered sections of 42 U.S.C.).
79. Clean Air Act §§ 150-159, 42 U.S.C. §§ 7450-7459 (1982).
80. Id. §§ 153-154, 42 U.S.C. §§ 7453-7454.
81. Id. § 156, 42 U.S.C. §7456.
82. Id. § 157(b), 42 U.S.C. § 7457(b).
OZONE DEPLETION
1989]
lem of ozone depletion. Responding to the industry position that the
government should not "act precipitously," President Reagan proposed
amendments to the Clean Air Act that require the EPA to base future
regulation of CFC's on actual measurements of stratospheric ozone instead of on scientific models that merely predicted a severe problem in
the future.8 3 EPA officials, apparently assuming that the aerosol ban and
other regulations already in place dealt effectively with the problem, were
surprisingly comfortable with President Reagan's conservative approach
to ozone depletion.
Some Reagan appointees expressed ambivalence toward the very notion of a government-sponsored solution to the ozone depletion problem.
Former Secretary of the Interior Donald Hodel, for example, called for a
national campaign to encourage people to decrease their exposure to ultraviolet rays rather than a concerted governmental effort.8 4 The Administration reportedly considered a plan to increase the voluntary use of
hats and sunscreen as a response to the situation.8 5 As commentators
have since pointed out, this proposal "would leave the less resourceful
animals and plants unprotected, 8 s6 to say the least.
Thus, while government policy analysts were initially anxious to
deal with ozone depletion, their ardor waned after the initial ban on CFC
use in aerosols and after the Reagan administration took power. Other
than the Montreal Protocol discussed below, further domestic policy initiatives addressing the problem of ozone depletion were not
forthcoming.87
C.
The Response of the InternationalCommunity
With industry opposed to stringent restrictions on CFC's, and conservative federal officials unwilling to proceed quickly with a CFC regulatory program, the leadership role in developing an early and effective
response to ozone depletion fell to international organizations such as
UNEP. And-at least prior to the negotiation of the Montreal Protocol-there was reason to believe that no response would be forthcoming
there either.
First, there was little precedent for an international solution to
ozone depletion. International environmental law is a relatively new development. 88 Traditionally, international law concerned the exclusive
83. Allaby, Environment, in 1982 BRITANNICA BOOK OF THE YEAR 355, 360.
84. Taubes & Chen, supra note 15, at 64.
85. Id.
86. Id.
87. Research regarding ozone depletion continues, however. See, e.g., Browne, New
Ozone Threat: Scientists Fear Layer is Eroding at North Pole, N.Y. Times, Oct. 11, 1988, at
Cl, col. 1.
88. For a more thorough explanation of the development of international environmental
ECOLOGY LAW QUARTERLY
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89
rights of states to exercise control in areas only under their jurisdiction.
In the environmental area, for example, the law of nations regulated the
access of states to certain natural resources, such as lakes and rivers. 90
International law did not address regional or global environmental
hazards that crossed over state borders. In the case of ozone, "[s]ince the
atmosphere mixes relatively rapidly, one country's overhead ozone
would not be protected by that same country's unilateral restriction of
releases." 9 1 Thus, the traditional regime of international law proved inadequate for dealing with the problem.
Second, the difficulties associated with reaching a common scientific
understanding of the ozone depletion problem and then agreeing on a
response are magnified in international fora-which embrace the widest
possible spectrum of scientific thinking and economic interests. The obstacles that hinder an international agreement regulating acid rain pollutants are illustrative. Countries interpret the scientific data on acid rain
differently according to whether their interests are predominantly economic or environmental. 92 In addition, although some countries, particularly the United States, Canada, and the nations of the EEC, show some
common interest in reducing sulphur dioxide and nitrogen oxide emissions, they disagree on the extent of the reduction necessary. 93 This disagreement reflects the varied national self-interests of the countries
involved, which differ according to the countries' industrial and energy
structures, as well as their economic capacities. The inability to agree
94
limits the ability of the parties to respond effectively to the problem.
Finally, prior attempts. to reach international environmental agreements have revealed that it is primarily the developed countries that
demonstrate a commitment to the preservation of the environment. 95
Developing countries historically have considered the development of enlaw, see Lang, EnvironmentalProtection: The Challengefor InternationalLaw, 20 J. WORLD
TRADE L. 489 (1986).
89. Id. at 489, 490.
90. Id.
91.
Williams, A HistoricalBackground on the ChlorofluorocarbonsOzone Depletion The-
ory and its Legal History, in TRANSBOUNDARY AIR POLLUTION 267, 268 (C. Flinterman ed.
1986).
92. J. BRUNNtE, ACID RAIN AND OZONE LEVEL DEPLETION: INTERNATIONAL LAW
AND REGULATION 263 (1988).
93. Id.
94. Id.
95. More recently, this has changed. For example, in May 1987, more than 150 representatives from every country in Central and South America, the United States, and Europe
came together to "discuss and take decisive action on the overwhelming environmental crisis
threatening Central America" at the First Central American Environmental Action Conference sponsored by UNEP. Environmental Project on Central America, Earth Island Institute,
Central American Environmentalists Meet to Confront Regional Environmental Crisis, Delegation of Leaders of the the U.S. Environmental Movement Tours Central America (July
1987) (press release). "This conference was the first gathering of Central American environmentalists in a decade." Id.
1989]
OZONE DEPLETION
vironmental policies to be a luxury. Lacking self-sufficiency in food production and suffering from unequal access to land, the citizens of these
countries rely on environmentally questionable technologies, such as unsafe pesticides and massive deforestation, to achieve basic food
96
production.
Against this background, the United Nations Conference on the
Human Environment at Stockholm took the first steps toward a system
of international environmental law in 1972. The Conference's stated goal
was "[t]o defend and improve the human environment for present and
future generations." '97 Principle 21 of the Declaration of the United Nations Conference on the Human Environment states that countries must
strike a balance between a nation's sovereign right to exploit its own nat98
ural resources and the duty not to damage areas beyond its jurisdiction.
The enunciated principle has no binding force, however, because it is
only a United Nations declaration.9 9 The parties at the Stockholm Conference also failed to reach agreement on state liability and compensation
for environmental disasters.' 0 0 The Conference did, however, recommend that countries engage in large-scale testing to determine the impact
of industrial products (like CFC's) on the environment.'l0
When UNEP began to address ozone depletion, it became apparent
that the problem of ozone depletion might break through the traditional
barriers to international regulation of environmental problems. 10 2 In
1977, UNEP convened a meeting of experts to address ozone depletion,
adopted a "World Plan of Action on the Ozone Layer," and created an
0 3
international Coordinating Committee on the Ozone Layer (CCOL).
The CCOL is comprised of representatives of various U.N. agencies and
nongovernmental organizations and meets periodically-usually once a
year-to assess ozone depletion and its impact.104 In May of 1981, the
Governing Council of UNEP began to make substantial progress toward
an international agreement by forming the Ad Hoc Working Group of
Legal and Technical Experts (Working Group). 0 5 This group's primary
96.
See id. See generally ENVIRONMENTAL PROJECT ON CENTRAL AMERICA (EPOCA),
EARTH ISLAND INSTITUTE, CENTRAL AMERICA:
ROOTS OF ENVIRONMENTAL
DESTRUC-
(EPOCA/Green Paper No. 2, 1986).
97. Report of the U.N. Conference on the Human Environment, U.N. Doc. A/Conf.48/14
(1972), reprinted in 11 I.L.M. 1416, 1417 (1972) [hereinafter U.N.Environment Conference].
98. Id. principle 21.
99. J. BRUNNtE, supra note 92, at 83.
TION
100. Id.
101. UN.Environment Conference, supra note 97, recommendation 4, at 1423.
102. Sand, Protecting the Ozone Layer: The Vienna Convention is Adopted, 27 ENV'T 19,
40 (1985). See generally Rummel-Bulska, The Protection of the Ozone Layer Under the Global
Framework Convention, in TRANSHOUNDARY AIR POLLUTION 281 (C. Flinterman ed. 1986).
103. Sand, supra note 102, at 40.
104. Rummel-Bulska, supra note 102, at 281-82.
105. J. BRUNNtE, supra note 92, at 227.
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function was to draft a global framework convention for the protection of
the ozone layer.10 6 UNEP's choice of a "framework convention" format
implied that there would be a multi-stage process. "[A] 'framework convention' . . . is designed to be supplemented by more specific 'protocols.' "107 In October of 1983, the Working Group came out with the
first draft of what would become the Vienna Convention for the Protection of the Ozone Layer. 108
Initially, this draft polarized many of the key participating countries, dividing them into two blocs: (1) the countries of the European
Economic Community (EEC), which favored a cap on production capacity and a 30% reduction in nonessential uses of CFC aerosols, 109 and (2)
the "Toronto Group," which favored the more aggressive approach of
reducing CFC's in stages.110 The Toronto Group was made up of Canada, the United States, Finland, Norway, and Sweden. "' In spite of the
lukewarm response by many nations to the first draft convention, the
Working Group forged ahead and in January of 1985 prepared the fifth
revised draft convention for submission to the Vienna Conference of
Plenipotentiaries on the Protection of the Ozone Layer. 1 2 When the
conference ended on March 22, 1985, twenty-one delegations had signed
the draft convention, now commonly known as the Vienna Convention
for the Protection of the Ozone Layer.113
The Convention states its purpose in general terms: "to protect
human health and the environment against adverse effects resulting or
likely to result from human activities which modify or are likely to modify the ozone layer."' 14 The contracting parties created a framework for
dealing with ozone depletion and envisioned that specific obligations
106.
Id.
107.
108.
109.
Sand, supra note 102, at 41.
J. BRUNNIfE, supra note 92, at 228.
Sand, supra note 102, at -41.
110.
Id.
111. Id. The Toronto Group refused to accept the EEC plan, in large part because many
of the EEC countries were producing below capacity and would not be affected by the treaty.
Id. A Canadian scientist with Environment Canada estimates that the Community presently
produces at 60-65% capacity. J. BRUNNItE, supra note 92, at 248. The Toronto Group instead proposed "an 80% reduction or a complete ban on [nonessential] uses and exports over a
six-year period." Sand, supra note 102, at 41. The EEC countries criticized this approach,
arguing that it failed to "deal with concerns over potential long-term increases in production
and 'essential' uses of CFC's." Id.
112. J. BRUNNf-E, supra note 92, at 229; Vienna Convention for the Protection of the
Ozone Layer, openedfor signature Mar. 22, 1985, UNEP/IG.53/5/Rev. 1 (1985), reprinted in
26 I.L.M. 1516 (1987) [hereinafter Vienna Convention] (ratified by the United States Aug. 27,
1987).
113. The initial signatories included: Argentina, Belgium, Canada, Chile, Denmark,
Egypt, the Federal Republic of Germany, Finland, France, Greece, Italy, the Netherlands,
Norway, Peru, Sweden, Switzerland, the USSR, and the United States. Vienna Convention,
supra note 112, at 37, 26 I.L.M. at 1516.
114. Id. art. 2(1).
1989]
OZONE DEPLETION
would be imposed by way of protocols." ' 5 Moreover, the parties agreed
to cooperate in systematic observation and monitoring of the atmosphere.1 6 To provide a forum for information exchange, the Convention
establishes a Conference of the Parties 17 to be served by a Secretariat,
which would be provided initially by UNEP."18
The Convention was heralded as a significant step toward the resolution of ozone thinning.' '9 However, the negotiations at the convention
did not go smoothly. One of the great frustrations was that the parties'
"understanding of the problem ha[d] changed rapidly, even from one
working group meeting to the next. Not everyone agree[d] on one single
theory."' 20 This explains why the document underwent five major revisions.12' In addition, the parties failed to agree on the amount and type
22
of future controls that should be imposed on CFC production and use.1
Despite last minute attempts by Dr. Tolba, the Executive Director of
UNEP, to unify the participants,' 23 the Toronto Group and the EEC's
positions proved irreconcilable.' 24 Rather than settle for weak, ineffective control provisions, the Conference chose to wait for a protocol to
25
implement such controls.
Soon after the Vienna Convention was completed, British scientists
published an unexpected finding: there was a hole in the ozone layer
over Antarctica. 26 Environmentalists and politicians alike, who weeks
115. At the conference, the parties adopted the Resolution on a Protocol Concerning
Chlorofluorocarbons. This Resolution requested the Executive Director of UNEP to work on
a protocol that would address equitably both short and long term strategies to control global
production, emissions, and use of CFC's. Id. at 7-8, 26 I.L.M. at 1521-23.
116. Id. arts. 2, 3.
117. Id. art. 6.
118. Id. art. 7.
119. Dr. Mostafa K. Tolba, the Executive Director of UNEP, stated publicly:
This is the first global convention to address an issue that for the time being seems far
in the future and is of unknown proportions. This Convention, as I see it, is the
essence of the anticipatory response so many environmental issues call for: to deal
with the threat of the problem before we have to deal with the problem itself.
Sand, supra note 102, at 20 (quoting Dr. Tolba, Executive Director of UNEP, in a speech
delivered at the Vienna Convention).
120. Id.
121. Id. at 40.
122. Id. at 41.
123. Id.
124. Id. The EEC favored this position because it produces 45% of the world's total supply of CFC's, but only consumes 30% of the world's total. Telephone interview with James
Losey, former Senior Staff Officer, International Activities Office, EPA (Aug. 10, 1988). In
addition, the EEC supported a production freeze according to production capacity rather than
current output. Under this plan the EEC would actually be able to increase production by
66% of current output, since the member states presently produce at only 60% of their potential output. Eberlee, supra note 26, at 23.
125. See Sand, supra note 102, at 41.
126. Stolarski, supra note 19, at 30. The British study did not actually find a complete
absence of ozone, but a severe depletion of the ozone layer concentrated over Antarctica.
Thus, the term "hole" is imprecise. See id.
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before had thought they were well on their way to solving the ozone
problem, found that the scientific estimates upon which they based their
negotiations were much too conservative. 127 This discovery sparked a
burst of scientific research, environmental activism, and international
meetings. 128 Once again, the problem of ozone depletion had been seriously underestimated. A more stringent, multilateral response was
clearly necessary.
III
THE MONTREAL PROTOCOL
International response to the failings of the Vienna Convention was
swift. In 1986, pursuant to the Resolution on a Protocol Concerning
Chlorofluorocarbons adopted by the parties to the Vienna Convention,
UNEP sponsored several workshops designed to discuss further potential
solutions. Meeting first in Italy and then in the United States, delegates
considered economic issues related to the control of CFC's and halons. 1 29
In the same year, the United States and UNEP co-sponsored another
meeting to discuss the effects of ozone depletion and global warming.130
One year later representatives of over fifty countries, including the largest
producers and consumers of CFC's, met at a third UNEP-sponsored
conference in Montreal, Canada, to negotiate a specific schedule for reducing CFC production and consumption.131 The meeting culminated in
the signing by twenty-four countries of the most stringent agreement regulating CFC's to date: the Montreal Protocol on Substances that De132
plete the Ozone Layer.
In what follows, I review the terms of the Montreal Protocol in detail and evaluate the Protocol's achievements and failings. The Protocol
must be praised for imposing the first limits on CFC production and consumption by the contracting parties-parties that cumulatively account
for most of the world's CFC production. The terms of the Protocol,
127. Id. The new report indicated that the springtime amounts of ozone over parts of the
Antarctic had decreased by more than 40% between 1977 and 1984. Id.
128. Meadows, supra note 7.
129.
R. BENEDICK,
INTERNATIONAL EFFORTS TO PROTECT THE STRATOSPHERIC OZONE
LAYER 2 (Bureau of Public Affairs, U.S. Dep't of State, Current Policy No. 931, Mar. 1987).
130. Id.
131. See Review of the Results of the Antarctic Ozone Expedition: Hearingbefore the House
Committee on Science, Space, and Technology, 100th Cong., 1st Sess. 13-14 (1987) [hereinafter
Antarctic Ozone Hearing] (statement of John D. Negroponte, Assistant Secretary of State for
Oceans and International Environmental and Scientific Affairs).
132. Montreal Protocol, supra note 5. The initial signatories included: Belgium, Canada,
Egypt, the Federal Republic of Germany, Finland, France, Ghana, Italy, Japan, Kenya, Mexico, the Netherlands, New Zealand, Norway, Panama, Portugal, Senegal, Sweden, Switzerland, Togo, the United Kingdom, the United States, and Venezuela. UNITED NATIONS,
MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL: STATUS AS AT
DECEMBER 1987, at 802, U.N. Doc. St/Leg/Ser.E/6 (1988).
31
OZONE DEPLETION
19891
however, are not sufficiently stringent or comprehensive. The parties to
the Protocol substantially underestimated the severity of the ozone depletion problem. As a result, the terms of the Protocol represent only a
partial solution to the problem of ozone depletion.
A:
Terms of the Montreal Protocol
At the outset of the Montreal Conference there was little reason to
believe that a final agreement could be achieved, despite new common
ground created by UNEP workshops and general advancements in scientific knowledge. Many conferees still disagreed on the stringency of re1 33
quirements, the timing of reductions, and the chemicals to be covered.
In particular, the same groups that disagreed in Vienna-the Toronto
Group and the EEC-again found themselves at odds. Although the
EEC no longer insisted on a production capacity limit, it still resisted
major cutbacks in CFC production.' 34 The United States and the Toronto Group favored a staged reduction of all ozone depleting chemicals
1
by 95%. 35
Prior to the Montreal Conference, the Canadian delegation had suggested a compromise: an immediate freeze on the production of CFC's
and minimal short-term reductions, with an option of longer-term cuts if
the scientific data warranted them.' 36 Over time, the EEC and the Toronto Group softened their rhetoric. With the help of the Canadian delegation, both groups agreed to the system of CFC and halon regulation
that was eventually set out in the final agreement, 1 37 which entered into
a
force on January 1, 1989. 13
The Montreal Protocol aims to reduce CFC emissions by 1999 to
50% of 1986 levels.' 39 The cornerstone of this regulatory scheme is article 2, which imposes a staged reduction in the production and consumption'40 of CFC's and halons. 14 1 The first stage, to occur no later than
133. J. BRUNNtE, supra note 92, at 237. Other major issues upon which the parties disagreed were the inclusion of a trade ban and the special concessions given to developing countries. Id.
134. For a more detailed explanation of the EEC's position, see id. at 240-41.
135. Telephone interview with Carol Brighton, Research Asstistant, Global Change Division, EPA (Sept. 7, 1988); see also U.S. Dep't of State, The Principles for an International
Protocol on Stratospheric Ozone (Nov. 3, 1986) (U.S. government proposal circulated to participating states for comment prior to the completion of Protocol).
136. Eberlee, supra note 26, at 23.
137. Id.; Montreal Protocol, supra note 5, art. 2.
138. Montreal Ozone Pact Takes Effect, NOT MAN APART, Nov. 1988-Jan. 1989, at 7.
139. Montreal Protocol, supra note 5, art. 2(4). Under the terms of the treaty, CFC emissions should be reduced to 50% of 1986 emission levels by the 12-month period ending June
30, 1999.
140. Consumption equals the production of CFC's plus imports minus exports. It also
takes into account the ozone-depleting potential of each substance. Id. art. 1 & Annex A.
141. The Protocol controls five CFC's and three halons: CFC- 11, CFC- 12, CFC- 113,
CFC-114, CFC-115, halon-1211, halon-1301, and halon-2402. Id. Annex A.
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seven months following the Protocol's entry into force, calls for the contracting parties to stabilize production and consumption of CFC's at
1986 levels. 14 2 By the end of the second stage, on June 30, 1994, the
parties must reduce production and consumption to 80% of 1986
levels.' 43 By the end of the third stage, on June 30, 1999, levels must be
no greater than 50% of 1986 levels. 144
The Protocol's provisions dealing with halons, another set of ozonedepleting chemicals, are less stringent. Parties to the Protocol must stabilize production and consumption of halons at 1986 levels by January 1,
1992.145 There are no provisions, however, for subsequent reductions below 1986 levels.
The production and consumption reductions set out above are limited by certain special exceptions included to make the Protocol acceptable to all signatories. First, at the behest of the EEC, 146 article 2(8)
allows countries to form "regional economic integration organizations,"
which may seek compliance with the Protocol as a group rather than as
individual nations. 47 To use this group compliance mechanism, each
state in the group must ratify the Protocol, and total group consumption
148
of CFC's and halons must meet the Protocol's requirements.
In addition, article 2(6) provides an exception for calculating 1986
consumption and production levels of parties that have already contracted for production facilities or have such facilities under construction.' 49 Production from these plants may be added to 1986 production
levels for purposes of calculating the touchstone 1986 level of production, "provided that such facilities are completed by 31 December 1990
and that such production does not raise that Party's annual calculated
level of consumption of the controlled substances above 0.5 kilograms
per capita."'150 This provision was drafted in response to the USSR's
assertion that its legally binding five-year plan could not be changed to
implement radical changes as rapidly as the Protocol required.' 5'
142. Id. art. 2(1). The 1986 baseline applies to all nations, regardless of when they ratify
the treaty. Thus, no party gains an advantage by delaying ratification. Id. art. 17.
143. Id. art. 2(3).
144. Id. art. 2(4). However, this last reduction will not apply if the "Parties decide otherwise at a meeting by a two-thirds majority of Parties present and voting, representing at least
two-thirds of the total calculated level of consumption of these substances of the Parties." Id.
145. Id. art. 2(2).
146. International Negotiators Reach Agreement on Final Atmospheric Ozone Protection
Treaty, [18 Current Developments] Env't Rep. (BNA) 1347 (Sept. 18, 1987); see also J. BRUNNE, supra note 92, at 245.
147. Montreal Protocol, supra note 5, art. 2(8)(a).
148. Id. art. 2(8). The secretariat must be informed of any such agreement before a lower
standard comes into effect under the Protocol. Id. art. 2(8)(b).
149. Id. art. 2(6).
150. Id.
151. EPA, Montreal Protocol on Substances that Deplete the Ozone Layer 2 (Sept. 17,
1987) (attachment to EPA, Environmental News: EPA Proposes Cutbacks in CFC Produc-
OZONE DEPLETION
19891
Finally, the parties devoted much of article 5 to special provisions
for developing nations. The parties recognized that less developed countries produce and consume only a small percentage of the world's CFC's,
,that these countries were not responsible for the ozone problem and
therefore should not be subject to as stringent restrictions as those applied to developed countries, and that they need technological assistance
to fulfill their obligations under the Protocol. 15 2 Thus, developing countries whose annual consumption of the controlled substances is less than
0.3 kilograms per capita may delay compliance with the control measures for up to ten years. 153 The consumption formula under the control
provisions also allows for increases in production above 1986 levels for
domestic consumption by developing countries. The Protocol allows for
increases of 10% in the first stage, 10% in the second stage, and 15% in
the third stage. 154 Moreover, the Protocol obligates the parties to facilitate the transfer of technology necessary for compliance to developing
countries to encourage them to use and develop substitutes for CFC's
5
and halons. 15
In addition to establishing limits on the production and consumption of CFC's and halons, the Protocol creates a means for adjusting
future limits on consumption and production, 15 6 an information network, 15 7 and restrictions on international trade in these chemicals with
58
nonparties. 1
The amendment procedure becomes operational in 1990. In that
year, and at least every four years thereafter, the control levels are subject to periodic review and assessment by the parties. 1 9 Depending on
the available scientific, environmental, technical, and economic information, 160 the contracting parties are free to increase or decrease production
or consumption levels and to adjust the ozone depletion potentials of the
chemicals. 161 Adjustments require either a consensus vote or a twothirds majority of parties present and voting, provided that those present
represent at least 50% of total world consumption of substances contion to Protect Ozone Layer (Dec. 1, 1987) (press release)); see also J. BRUNNfE, supra note
92, at 244-45.
152. J. BRUNNtE, supra note 92, at 238-39. According to EPA estimates, the developing
countries accounted for the use of 367 million pounds of CFC's and halons in 1985, or a little
more than 16% of the worldwide total. See Shabecoff, supra note 59, at A15, col. 1.
153. Montreal Protocol, supra note 5, art. 5(1).
154. Id. art. 2(2)-(4).
155. Id. arts. 9, 10.
156. Id. art. 2(9)-(0).
157. Id. arts. 7, 9, 10.
158. Id. art. 4.
159. Id. art. 6.
160.
Id. art. 6.
161.
Id. art. 2(9)(a).
ECOLOGY LAW QUARTERLY
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trolled.162 The parties can also add or remove chemicals from the control list, provided that two-thirds of those parties who are present vote
16 3
for the change.
The Protocol also creates a monitoring system to develop more accurate information on each country's use of CFC's. Pursuant to article
7, the parties agreed to make annual reports to the Secretariat of the
Montreal Conference on the production, import, and export of the CFC's
and halons being controlled.' 64 The Protocol also calls for cooperation
to promote research and public awareness of technologies to reduce emissions, possible alternatives, and costs and benefits of relevant control
65
strategies.
Finally, the Protocol regulates trade between parties to the agreement and nonparties. Within one year of entry into force of the Protocol,
66
the import of controlled substances from any nonparty state is banned. 1
The Protocol calls on the parties to compile future lists of products containing controlled substances and to ban their import from nonparty
states.167 The Protocol also regulates the trade of products made with
CFC's and halons but that do not contain these substances. 68 Within
five years after the Protocol goes into force, the parties must compile a
list of such products. Where feasible, importation of these products from
nonparty states will be banned or restricted by those parties who do not
object to these limitations.1 69 In addition, the Protocol discourages the
export of technology for producing or utilizing CFC's or halons to nonparty states and requires the parties to withhold new financial support for
the export to nonparties of products, parts, or technologies that would
aid in the production of CFC's. 170 These provisions were intended to
"protect industries in countries party to the Protocol from being put at a
competitive disadvantage vis-A-vis industries of nonparties, create an incentive for broad participation, and discourage the movement of produc17 1
tion facilities to nonparties."'
162. Id. art. 2(9)(c).
163. Id. art. 2(10).
164. Id. art. 7(2).
165. Id. art. 9.
166. Id. art. 4(1). Less developed countries have until January 1, 1993 to ban these imports. Id.
167. Id. art. 4(3).
168. Id. art. 4(4).
169. Id. Parties may object to the list of banned or restricted products under the procedures set up in article 10 of the Vienna Convention for the Protection of the Ozone Layer. Id.
art. 4(4). For a discussion of the Vienna Convention, see supra notes 108-25 and accompanying text.
170. Montreal Protocol, supra note 5, art. 4(5)-(6). However, Parties may provide such
types of support where they "improve the containment, recovery, recycling or destruction of
controlled substances, promote the development of alternative substances, or otherwise contribute to the reduction of emissions of controlled substances." Id. art. 4(7).
171. R. BENEDICK, supra note 129, at 3. Although most countries wanted some sort of
1989]
B.
OZONE DEPLETION
The Accomplishments and Limitations of the Montreal Protocol
The Montreal Protocol represents definite progress in the struggle to
solve global ozone depletion. It embodies the consensus that ozone depletion is an important issue, that CFC's are playing a role in this problem, and that the world's greatest contributors to the problem-the
industrial nations that produce and consume CFC's-must begin to respond. However, the agreement still reflects what has dogged ozone depletion since it was first discovered: incomplete scientific understanding
of the problem and limited agreement on how to respond to it. Thus, the
Protocol represents an international solution that is neither comprehensive nor restrictive enough to be truly effective.
1.
The Accomplishments of the Montreal Protocol
The achievements of the Montreal Protocol are most notable in four
areas: (1) CFC reductions, (2) that are binding on all parties, (3) following an extraordinary transnational cooperative effort, (4) that has pushed
back the frontiers of international environmental law.
The Montreal Protocol requires all parties to make substantial and
specific reductions in their production and consumption of CFC's and
halons. Multilateral agreements that call for such reductions in activities
that cause international environmental problems are rare. For example,
while the United States and Canada have agreed to study the problem of
acid rain, an agreement providing for concrete reductions has proven elusive. 172 A final protocol between European countries requiring specific
oxide emissions came about
reductions in sulphur dioxide and nitrous
173
effort.
of
decade
a
than
more
after
only
incentive to encourage nonparty states to comply, it was not clear whether trade restrictions
were wise or even legal under international law. The trade working group of the conference, in
particular, was concerned that trade restrictions might conflict with the provisions of the General Agreement on Tariffs and Trade (GATr), Oct. 30, 1947, 61 Stat. vols. 5-6, T.I.A.S. No.
1700, 55-61 U.N.T.S. 187. Memorandum from Amelia Porges, Associate General Counsel for
the Office of United States Trade Representative to CFC Trade Working Group 1 (Jan. 14,
1986) (discussing trade law issues and ozone layer negotiations).
However, GATT does not bar trade restrictions "as long as they are related to the conservation of natural resources, or necessary to the protection of human, animal, or plant health."
Id. Moreover, to satisfy the GATT Standards Code (the Agreement on Technical Barriers to
Trade), the standards set must be "scientifically valid." Id. Thus, the parties could ban, restrict, or impose a fee on the import of CFC's as long as the action was "necessary to protect
human, animal, or plant life or health" and did not discriminate against like cases. Id. at 2.
Attempts by exporters or importers of CFC's to ship CFC's or CFC products via nonparty countries in order to circumvent restrictions would "almost certainly constitute customs
fraud." Id. at 5. Since a product's origin is important for determining the applicability of any
trade provisions, Ms. Porges believes that the Parties to the Protocol should consider the origin of CFC's carefully and perhaps adopt a uniform origin rule. Id.
172. For a history of the U.S.-Canadian negotiations on acid rain, see J. BRUNN -E, supra
note 92, at 190-210.
173. Id. at 175-84. In the Convention on Long Range Transboundary Air Pollution, done
Nov. 13, 1979, U.N. Doc. ECE/HLM.1/R.1 (1979), reprintedin 18 I.L.M. 1442 (entered into
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The reductions called for by the Protocol are also binding on all
parties. Parties may not make reservations to the Protocol1 74 and may
only withdraw five years after joining as a party. 175 In addition, each
state that joins the Protocol after it has entered into force must nonetheless satisfy the emission levels using the same touchstone 1986 production figures that apply to the original signatories. 76 Thus, countries
cannot weaken the reductions that apply to them through the procedural
device of delayed ratification.
Third, the specific and binding agreement described above came
about as the result of a surprisingly cooperative relationship between the
signatory countries at many levels. Most notably, the United States and
the United Nations worked closely throughout the negotiations, 77 despite strained relations on many other fronts. 178 The success of the Protocol also reflects the extraordinary transnational efforts by private
environmental groups to focus the attention of political leaders on the
problem of ozone depletion. 179 Finally, the Montreal Protocol reflects an
encouraging level of cooperation between the leadership of the signatory
nations. During the negotiations, countries with very divergent attributes-large and small, industrialized and developing, free market and socialist-transcended their disagreements to address this important
environmental issue. Although their interests and proposed solutions varied considerably, they forged a document that imposes restrictions on
each but that remains flexible enough to consider the specific problems of
particular countries.
force Mar. 16, 1983), there were "neither numerical reduction goals for emissions of certain
pollutants nor a time frame within which reductions had to be achieved." J. BRUNNf-E, supra
note 92, at 177. It was not until July 1985 that the parties to the Convention adopted a
protocol to reduce their sulphur emissions by 30%. This protocol entered into force on September 2, 1987, almost eight years after the original convention was signed. Id. at 182-83.
174. Montreal Protocol, supra note 5, art. 18.
175. Id. art. 19. This five-year requirement, however, does not include developing countries. Id.
176. Id. art. 17.
177. See Antarctic Ozone Hearing, supra note 131, at 12-13 (statement of John D.
Negroponte).
178. In the past few years, the United States has acted with increasing impatience and
hostility toward the United Nations. In 1985 the United States left UNESCO, accusing it of
"mismanagement and catering to the political objectives of Communist and radical third world
nations." Taylor, The United States Has a Bad Day in World Court, N.Y. Times, Dec. 2, 1984,
§ 4, at 2, col. 3. In that same year the United States withdrew from the compulsory jurisdiction of the International Court of Justice by withdrawing from the case of Nicaragua v. United
States. On World Court's Compulsory Jurisdiction Over U.S., N.Y. Times, Feb. 9, 1985, at
A22, col. 4. (letter to the editor). Finally, in 1986, the United States cut its contribution to the
United Nations significantly, citing "frustration and anger at the U.N." Franklin, Gloom and
Doom for Friendsof the U.N., N.Y. Times, June 27, 1986, at A16, col. 3.
179. In the United States, the World Resources Institute and the Natural Resources Defense Council (NRDC) have been particularly active. Abroad, Friends of the Earth, U.K. and
the Institute for European Environmental Policy deserve special recognition. Meadows, supra
note 7, at 6, col. 1.
OZONE DEPLETION
1989]
The cooperation underlying the Protocol suggests a fourth accomplishment. The Montreal Protocol contributes to the development of an
international environmental legal regime. It serves as a significant precedent for negotiating binding agreements dealing with transboundary environmental problems. It shows how countries are finally recognizing
that, in the international arena, they can reach a global compromise that
subjugates their national interests to the global common good. 180 It also
breaks new ground in that it is the first international environmental
rather than one that
agreement that protects against a future problem,
181
focuses solely on an already existing one.
2.
The Limitations of the Montreal Protocol
The successes of the Montreal Protocol, while substantial, are not
unmitigated. The Protocol is ambiguous or silent in several key areas.
More importantly, the authors of the Protocol substantially underestimated the problem of ozone depletion and the need for a stringent and
comprehensive international response.
Several key provisions of the Montreal Protocol are unclear. First,
the provisions of the Protocol fail to set forth clearly and simply the
intentions of the parties. Because of time pressures, the parties were unable to contemplate thoroughly the meaning and ramifications of each
82
provision or to receive comments from the legal drafting committee.
Typically, this committee considers whether the drafting adequately reflects the parties' desires and analyzes the legal ramifications of each
83
provision.'
The lack of clarity has two negative results. At the outset, the text is
so complex and the wording so convoluted that it may deter smaller developing countries from signing the Protocol. 84 Theywill be hesitant to
sign a document whose plain meaning is not clear and whose finer details
185
they do not understand.
The ambiguity of the Protocol, moreover, confounds its meaning.
For example, the Protocol provides that CFC and halon production can
180. Barnes, The Growing InternationalDimension to EnvironmentalIssues, 13 COLUM. J.
ENVTL. L. 389, 392 (1988). Some question the significance of the Montreal Protocol as precedent for future international environmental accords. They argue that ozone depletion is a
relatively easy environmental problem to solve, especially because CFC-substitutes will probably become widely available within the next decade. Panel Discussion on Ozone Depletion,
School of Law (Boalt Hall), University of California at Berkeley (Apr. 4, 1989) (comments of
Dr. Armin Rosencranz, President, Energy and Resources Center, Sausalito, California, and
James Losey, former Senior Staff Officer, International Activities Office, EPA).
181. Claussen, Point/Counterpoint: Moving Forward Together, ENVTL. F., July/Aug.
1988, at 16.
182. Losey interview, supro note 124.
183. Id.
184.
Id.
185.
Id.
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increase by as much as 10% over the 1986 level for less developed coun86
tries and for "purposes of industrial rationalization between parties."'
Article 1 of the Protocol defines "industrial rationalization" as "the
transfer of all or a portion of the calculated level of production of one
party to another, for the purpose of achieving economic efficiencies or
responding to anticipated shortfalls in supply as a result of plant closures."' 187 Post-Convention discussion has demonstrated that this definition is vague and unworkable. In particular, the Protocol fails to indicate
what constitutes these "economic efficiencies" or when a transfer can be
justified on that basis.' 88 Moreover, the definition, contrary to the parties' intent,' 89 does not state that the transfers are limited to developing
countries. As phrased, even industrialized countries can increase their
capacity by making transfers to other countries, though the parties intended that the exception only apply to less developed states.' 90
In addition to its ambiguities, the Montreal Protocol is silent in the
area of noncompliance. The conspicuous absence of enforcement measures to encourage compliance' 9 ' is particularly disturbing. The United
States sought sections providing that if a party is judged to be out of
compliance by a meeting of the parties to the Protocol, then the party
92
will be treated as a nonparty for purposes of article 4 trade provisions.
This approach would reduce transfers of CFC's and halons between parties out of compliance and those in compliance. 193 At Montreal, however, the parties were not prepared to adopt such draconian measuresespecially because the United States presented the proposal at Montreal
for the first time.' 94 Conferees complained that this left them insufficient
time to send the proposals back to their respective governments for review and approval. 95 Instead, the Montreal conferees agreed to "consider and approve procedures and institutional mechanisms for
determining non-compliance with the provisions of this Protocol and for
186. Montreal Protocol, supra note 5, art. 2(1)-(3).
187. Id. art. 1(8).
188. Losey interview, supra note 124.
189. Cf J. BRUNNtE, supra note 92, at 244 (clause was intended to make the transfer of
production possible only for small producing countries).
190. Losey interview, supra note 124. EPA unilaterally rejected that notion, arguing instead that the language of the article is merely hortatory, pointing to the lack of a mechanism
for implementing the provision. EPA stands firmly behind the position that industrialized
countries cannot increase their production after receiving one of these transfers. Id.
191. Canadian experts, however, have indicated that the lack of a formalized compliance
mechanism will not affect the implementation of the Protocol. They assume that market
forces, such as the increasing availability of cost-effective substitutes, will keep the parties to
the schedule. Moreover, the punitive trade provisions will deter noncompliance. J. BRUNNIE,
supra note 92, at 251-52.
192. Losey interview, supra note 124.
193. Id.
194. Id.
195. Id. Furthermore, the EEC and Great Britain vigorously opposed the proposal. Id.
1989]
OZONE DEPLETION
treatment of Parties found to be in non-compliance." 1 96
The Protocol is also silent on disputes between individual parties.
Any differences between the parties are supposed to be resolved pursuant
to the Vienna Convention. 97 None of the means for resolving disagreements under the Convention, however, are mandatory. Article 11 of the
Vienna Convention provides only that the parties should negotiate a resolution of their dispute. 19 8 If negotiation fails, they may voluntarily seek
third-party mediation.199 Alternatively, they may voluntarily seek settlement by arbitration or by submitting the dispute to the International
Court of Justice. 2°° If none of these avenues proves successful, the par-
ties may request the formation of a conciliation commission to resolve
the dispute. 20 1 Clearly, the dispute resolution provisions are weak and
inadequate.
Finally, the importance of the Montreal Protocol as a solution to
ozone depletion is diminished because the parties to the Protocol underestimated the problem of ozone depletion. The parties to the conference
worked under the assumption that major ozone depletion was still decades away. 20 2 The results of analyses by NASA's Ozone Trends Panel
in March of 1988, however, indicate that the ozone layer is thinning at
20 3
least two to three times as fast as was previously assumed.
The Panel also confirmed the deleterious effect of CFC's on the
ozone layer over Antarctica. It reported that the springtime ozone layer
over the Antarctic had declined by as much as 50% compared to the
previous September. 2°4 The data also indicate that since 1979, ozone
levels have decreased during all seasons by 5% or more at all latitudes
south of 60 degrees south. 20 5 The scientists detected a high level of chlorine compounds that "very strongly suggests" that CFC's are the "primary" cause of the problem. 20 6 According to the Panel's report, the
"unique meteorology of the region sets up the special conditions of an
isolated air mass (polar vortex) with very cold temperatures that is believed to be required for the unusual chemical mechanisms, ' 20 7 the
chemical reactions that break down ozone molecules. While the partici196. Montreal Protocol, supra note 5, art. 8.
197. Id. art. 14 ("Except as otherwise provided in this Protocol, the provisions of the
Convention relating to its protocols shall apply to this Protocol.").
198. Vienna Convention, supra note 112, art. 11(1).
199. Id. art. 11(2).
200. Id. art. 11(3).
201. Id. art. 11(4)-(5).
202. Doniger, Point/Counterpoint: Global Emergency, ENVTL. F., July/Aug. 1988, at 17.
203. Maugh, supra note 20, at 19, col. 1.
204. NASA, supra note 1, at 4. This depletion was as high as 95% at an altitude of 15-20
kilometers. Id.
205.
206.
207.
Id. at 5.
Id. at 19.
Id. at 19-20.
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pants at Montreal knew of reports demonstrating the CFC contribution
to an Antarctic ozone hole, they did not rely on this evidence on the
20 8
grounds that a causal link had yet to be verified.
Another alarming report released in March 1988, by an international panel of atmospheric scientists, indicates that there is a hole in the
ozone layer above the Arctic similar to, but smaller than, the hole over
Antarctica. 20 9 First observed in March 1986, the hole appears to be
structurally similar to the one in the Antarctic, though only half the size.
The Arctic hole is less predictable than the Antarctic one because of the
more active weather systems. 2 10 It is also more worrisome than its
Antarctic counterpart because it is nearer to populous regions such as
Scandinavia and northern Asia.
This recent discovery has spurred hypotheses that there exist other,
similar zones of extreme ozone depletion elsewhere in the world. The
New York Times recently reported that this possibility has heightened
fears by scientists that human beings and wildlife may soon face grave
health hazards. 211 To test these hypotheses, NASA and the National
Oceanic and Atmospheric Administration sent scientists to Stavanger,
2 12
Norway on January 1, 1989, to study the Arctic hole in greater detail.
In addition to underestimating the extent of ozone depletion, the
parties to the Protocol also underestimated the extent of damage CFC's
cause to the atmosphere in other ways. In particular, the parties failed to
respond to the, effect of CFC's on global warming. Currently, some
scientists estimate that CFC's contribute about 10% to the total greenhouse effect. 213 Some scientists, however, predict that if CFC use continues to grow steadily at 5% per year, CFC's could account for more than
50% of the total greenhouse effect by the year 2030.214 Evidence shows
that each CFC molecule is 20,000 times as efficient at trapping heat as
each molecule of carbon dioxide. 2 15 When heat is trapped near the
ground by the greenhouse effect and ozone is depleted high up in the
stratosphere, the stratosphere cools. 2 16 A cooler stratosphere allows ultraviolet radiation to penetrate deeper into the atmosphere before it gives
up its energy. 2 17 Taken together, these two phenomena could have a sig208. Doniger, supra note 202, at 17.
209. Dayton, Canadidns Confirm Ozone Hole in Arctic, NEW SCIENTIST, June 9, 1988, at
47; Browne, supra note 87, at C1, col. 1.
210. Dayton, supra note 209, at 47.
211. Browne, supra note 87, at CI, col. 1.
212. Shabecoff, Arctic Expedition Finds Chemical Threat to Ozone, N.Y. Times, Feb. 18,
1989, at Al, col. 3, A8, col. 2 (nat'l ed.).
213. Eberlee, supra note 26, at 24.,
214. Id.
215. Lemonick, Deadly Danger,supra note 2, at 58.
216. Gribbin, CFC's Could Alter World's Heat Balance, NEW SCIENTIST, May 19, 1988, at
36.
217. Id.
OZONE DEPLETION
1989]
nificant effect on world temperature. 2 18 Moreover, a cooler stratosphere
could increase convection from the troposphere, changing global wind
2 19
and weather patterns.
Finally, the participants in Montreal failed to appreciate fully the
potentially adverse environmental effects of alternative CFC's. Some research suggests that the substitutes also will contribute to the global
warming trend. 220
Many alternative CFC's contain hydrogen. 22 1 The
molecules that make up these chemicals will break down long before they
reach the ozone layer. Unfortunately, the photochemical process involved in this breakdown will contribute to the growing problem of
smog, which produces lower atmospheric ozone. Ozone in the lower atmosphere is highly toxic to plants. It is also second only to carbon diox222
ide in its contribution to the greenhouse effect.
3.
Conclusion
In the face of persistent scientific uncertainty and equivocation
among policy analysts as to the proper response to ozone depletion, the
Montreal Protocol has accomplished a great deal. The signatories to the
Montreal Protocol committed their nations to a binding agreement calling for specific and substantial reductions in the production and use of
those chemicals that cause the breakdown of ozone.
Yet even as the Montreal Protocol succeeds, it embodies the
problems that have followed ozone depletion since the phenomenon first
entered the arena of public debate over fifteen years ago. The program of
reductions initiated by the Montreal Protocol is based on assumptions
that substantially underestimate the seriousness and complexity of the
depletion problem. Moreover, because of these assumptions, the terms of
the Montreal Protocol are neither stringent nor comprehensive enough
to arrest depletion and permit restoration of the ozone layer.
IV
MOVING BEYOND THE MONTREAL PROTOCOL
Fortunately, international and domestic efforts to deal with ozone
depletion have not ended with the Montreal Protocol. Many environmental groups and government agencies have recognized its limitations;
some of them have moved beyond the Protocol to take specific action.
218. One study, by Guy Brasseur of the Belgian Institute for Space Aeronomy and Matthew Hitchman of the U.S. National Center for Atmospheric Research, estimated that with a
cooler stratosphere, at an altitude of 50 kilometers above the equator, the atmosphere might
experience a decrease in temperature of 15 degrees Kelvin. Id.
219. Id.
220. Milgrom, Alternative CFC's Pose Problems Near the Ground, NEW SCIENTIST, Mar.
31, 1988, at 33.
221.
Id.
222.
Id.
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EPA, in particular, recently has taken a leading role. Rules promulgated by the EPA codify the U.S. obligations under article 2 of the Montreal Protocol. 223 To restrict industry production and consumption,
EPA has adopted a quota system, granting allowances to those firms that
produced or imported the restricted chemicals in 1986.224 EPA has also
moved, although somewhat cautiously, beyond the Protocol in a number
of respects. First, it solicited public comment on adding a regulatory fee
to capture the multi-billion dollar windfall profits producers may experience as an unintended byproduct of the quota system. 225 Producers
should experience significant future price increases in these chemicals
once EPA limits their supply. Second, EPA may require certain industries that use CFC's and halons to increase recycling or to find substitute
chemicals or processes. 226 EPA is especially concerned about regulating
those industries in which CFC's and halons contribute very little to the
price of the final product, because these industries may be slow to respond to the market and may delay their shift away from CFC's and
227
halons.
EPA also has publicly called for reductions in the use of CFC's and
halons beyond those required by the Protocol. Former EPA Administrator Lee Thomas called for the complete elimination of ozone-depleting
chemicals. 22 8 According to Thomas, the 50% reduction called for in the
Montreal Protocol is insufficient. 229 New information published in 1988
" 'paints an alarming picture of present and future global ozone
levels' "230 and proves that the restrictions on CFC's and halons called
for in the Montreal Protocol would not have the intended effect of stabilizing the amount of ozone-destroying chlorine. 23 1 While Thomas did
not give a timetable for a complete phaseout, Eileen Claussen, EPA's
223. EPA, Protection of Stratospheric Ozone, 53 Fed. Reg. 30,566-602 (1988) (to be codified at 40 C.F.R. Pt. 82).
224. Id. at 30,566, 30,576-80. Industry producers and consumers contended that the scientific evidence on which EPA based its regulations "did not justify the CFC reductions required by the Protocol except as a precautionary measure." Id. at 30,573-74.
225. EPA estimates windfall profits between $1.8 to $7.2 billion through the year 2000,
depending on the rate at which producer firms develop and employ low-cost substitutes. Id. at
30,604, 30,606.
226. EPA, supra note 46, at 2.
227. Id. EPA also conceded that it underestimated the rate and risks of ozone depletion,
given new scientific evidence obtained by the Ozone Trends Panel. The rule contains a summary of the findings and states that EPA will make the full report available to the public some
time in the future. Id.
228.
Shabecoff, EPA's Chief Seeks a Ban on CFCs, N.Y. Times, Sept. 27, 1988, at A20,
col. 1.
229. Id. " '[E]ven with 100% participation' in the treaty, the amount of chlorine [the
major culprit in breaking down ozone molecules] in the atmosphere would grow to 8 parts per
billion in less than a century from the current 2.7 parts per billion." Id.
230.
Id.
231. Id. Bob Watson, a NASA scientist and chair of the Ozone Trends Panel, asserted
that to reduce chlorine in the atmosphere to 1970 levels (approximately 1.5 parts per billion),
1989)
OZONE DEPLETION
Acting Administrator for air and radiation, said that a ten-year phaseout
"'would not be unreasonable.' "232
One of the most active environmental groups in the post-Montreal
period has been NRDC. 233 In 1986, NRDC sued EPA for failing to
234
make a timely implementation of section 157(b) of the Clean Air Act.
This section authorizes the EPA Administrator to issue "regulations for
the control of any substance, practice, process, or activity ...
which in
his judgment may reasonably be anticipated to affect the stratosphere,
especially ozone in the stratosphere, if such effect ...may reasonably be
anticipated to endanger public health or welfare.
' 235
Although the law-
suit commenced before the conclusion of activities at Montreal, the
court-ordered schedule resulting from the suit forced EPA to implement
236
rapidly the Montreal Protocol's provisions.
2 37
In October of 1988, NRDC filed another lawsuit against EPA.
This suit challenges the EPA regulations that were issued under the
court-ordered schedule obtained by NRDC in its earlier case. 23 8 NRDC
attorneys argued that "'[c]uts of this limited magnitude will not stop
ozone depletion, or even keep it from getting worse.' ",239 The lawsuit
asks the court to impose another schedule on EPA for issuing total
2
phaseout regulations for CFC's and halons. 4
NRDC has also launched a lobbying effort directed at the State Department, urging it to make the reassessment of the Montreal Protocol a
top priority in dealings with Western European countries and Japan. 24 1
Most recently, NRDC has launched the Atmospheric Protection Initiative--called its "most comprehensive and aggressive campaign in [the]
organization's history.
"complete
worldwide
'2 4
1
2
One goal of the Initiative is to ensure the
phase-out of ozone-depleting
chemicals by
the world would have to cut CFC production by 95%. Pearce, Ozone Threat Spreads From
Arctic, NEW SCIENTIST, Mar. 24, 1988, at 24.
232. Shabecoff, supra note 228, at A20, col. 1.
233. NRDC also was active before the Montreal Protocol was actually negotiated and
signed. It directed its earlier efforts toward educating the public and trying to encourage the
government to make rapid reductions in the production of CFC's and related chemicals. See
Doniger & Wirth, Cooling the Chemical Summer: A Callfor Action, AMicus J.,Fall 1986, at
13-15.
234. NRDC v. Thomas, No. 84-3587 (D.D.C., filed May 17, 1986). The district court for
the District of Columbia ordered EPA to implement a schedule that included the publication
of proposed regulations by May 1, 1987, and final regulations by November 1, 1987. Id.
235. Clean Air Act § 157(b), 42 U.S.C. § 7457(b) (1982).
236. Doniger, Politics of the Ozone Layer, ISSUES IN SCI. & TECH., Spring 1988, at 86.
237. Lawsuit Seeks Full U.S. Phase-Out of Ozone-Depleting Chemicals, NRDC NEWSLINE, Nov./Dec. 1988, at 4.
238.
239.
240.
241.
242.
Id.
Id. (quoting NRDC attorney David Doniger).
Id.
Ozone Depletion Worsens, supra note 57.
Direct Mail Letter from NRDC (Jan. 1988).
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[Vol. 16:407
1994. ' ' 243 The Initiative also specifies ten action items, four of which
address ozone depletion:
1. Compel the President to advocate the fastest possible phaseout of
CFC's.
2. Go to court to force the EPA to phase out CFC's in the United
States.
3. Press Congress to pass tough ozone protection legislation.
244
4. Mount a consumer action campaign against CFC products.
Concurrent with the events leading up to the Montreal Protocol,
Congress has also addressed stratospheric ozone depletion. Besides holding numerous hearings on ozone depletion, 245 it has considered several
bills to protect the ozone layer, though none were enacted. In 1987,
prior to the Montreal Protocol, Senators Max Baucus of Montana and
John H. Chafee of Rhode Island each introduced bills in the Senate to
arrest ozone depletion through the close regulation of CFC's. 24 6 Repre243. Id. at 3.
244. Id. at 3-10. Other environmental and public interest groups also have criticized the
U.S. Government's handling of ozone depletion at the domestic and international level,
although none have been as active as NRDC. In comments solicited by EPA, most of these
groups claimed that
the Montreal Protocol and thus EPA's proposed rule did not go far enough fast
enough.in requiring reductions in ozone-depleting substances. Several noted EPA's
own projections that (1) stratospheric ozone would still be depleted by nearly two
percent by the year 2075 under the Protocol's control regime; (2) every one percent
decrease in ozone would result in a one to two percent increase in melanoma skin
cancer incidence... ; and (3) United States unilateral action to reduce CFC use by
an additional thirty percent would further reduce those adverse effects. In light of
these projections, they questioned the logic of EPA's proposal to implement the
Montreal Protocol's required reductions and no more.
Protection of Stratospheric Ozone, supra note 223, at 30,574.
245. See, e.g., Ozone Depletion, the Greenhouse Effect, and Climate Change: Joint Hearing
Before the Subcomm. on EnvironmentalProtection and Subcomm. on Hazardous Wastes and
Toxic Substances of the Senate Comm. on Environment and Public Works, 100th Cong., 1st
Sess. (1987); Ozone Layer Depletion: Hearings Before the Subcomm. on Health and the Environment of the House Comm. on Energy and Commerce, 100th Cong., 1st Sess. (1987); Stratospheric Ozone Depletion and Chlorofluorocarbons: Joint Hearings Before the Subcomm. on
Environmental Protection and Subcomm. on Hazardous Wastes and Toxic Substances of the
Senate Comm. on Environment and Public Works, 100th Cong., 1st Sess. (1987).
246. Senator Chafee proposed the "Stratospheric Ozone and Climate Protection Act," S.
571, 100th Cong., 1st Sess. (1987); Senator Baucus proposed the "Stratospheric Protection Act
of 1987," S. 570, 100th Cong., 1st Sess. (1987). These bills contained a similar set of provisions. Each bill proposed the following: creating a list of regulated substances, S. 571 § 6, S.
570 § 5; placing a production cap on the controlled substances, S. 571 § 7(a), S. 570 § 7; limiting importation of CFC's, S. 571 § 11(a), S. 570 § 12(a); and labeling all containers that hold
substances made with or containing CFC's, S. 571 § 12, S. 570 § 13. Senator Chafee's bill
proposed phasing out 95% of 1986-level CFC production by January 1, 1993, S. 571 § 7(d),
while Senator Baucus's bill proposed reaching this level by January 1, 1995, S. 570 § 8(a). The
two bills also included rigorous sanctions for noncompliance. S. 571 §§ 11, 14, S. 570 § 13.
For example, under either bill the EPA Administrator could have assessed penalties of up to
$25,000 per day. S. 571 § 13(a)(2), S. 570 § 14(a)(2). The Administrator also could have
asked for criminal prosecution in cases where there had been a domestic violation. S. 571
§ 13(d), S. 570 § 14(d). In comparison, compliance sanctions are conspicuously missing from
the international accords. See supra notes 191-96 and accompanying text.
OZONE DEPLETION
1989]
sentative Jim Bates of California introduced the "Stratospheric Ozone
Protection Act of 1987," which would have amended the Clean Air
Act. 247 Representative Fortney H. Stark of California introduced the
"Ozone Protection and CFC Reduction Act of 1987," which would have
placed an excise tax on CFC's and halons, as well as on products made
with these chemicals.
248
All of the above steps taken in compliance with and in reaction to
the Protocol have helped, but more must be done. As the world's largest
producer and consumer of CFC's, the United States can and should take
a leading role. There are at least four areas where U.S. action could
prove decisive.
First, the United States is a leader in scientific research. It should
fund the research necessary to create a truly accurate picture of the
ozone depletion problem. As a former chief of the Environmental Law
Unit and Deputy Director of the Environmental Management Service for
UNEP, Peter Sand, explains, reaching a scientific consensus on an environmental issue is the key to an effective and timely response. 24 9 Uncertainties put policymakers in a dilemma: "They can take preventive
action now, at the risk of restricting lucrative economic activities on the
basis of incomplete scientific evidence," or they can "postpone regulatory
action until scientific proof becomes available. ' 250 If they choose to wait
for more scientific proof, as the international community did with whaling, "the threat may have become historically irreversible or reversible
only over several generations.
'2 51
The United States should continue to support research by NASA to
identify the extent and rate of ozone depletion. The government must
encourage research expeditions, such as those recently conducted in Antarctica and the Arctic, 2 52 that collect and analyze data in detail. The
United States should also encourage EPA to analyze further the dangers
247. See H.R. 2036, 100th Cong., 1st Sess. (1987). The bill proposed amending Subchapter I, Part B of the Clean Air Act, 42 U.S.C. §§ 7450-7459. H.R. 2036 § 3. If enacted,
Bates's bill would have required a phaseout schedule for CFC's and regulated the trade of
CFC's through trade restrictions put in place by the President. Id. Bates's bill was before the
House Health and Environment Subcommittee when the 100th Congress adjourned. Bates
predicts action on the bill early in the 101st Congress. Telephone interview, Legislative Assistant to Rep. Bates (Aug. 20, 1988).
248. H.R. 2854, 100th Cong., 1st Sess. § 2 (1987). Stark's bill would have amended Chapter 38 of the Internal Revenue Code of 1986, 26 U.S.C. §§ 4611-4672, by adding a new subchapter, "Subchapter D--Ozone-Depleting Chemicals, Etc." H.R. 2854, § 2.
249. See Sand, supra note 102, at 40.
250. Id.
251. Id. Indeed, present studies indicate that for each year in which current measures-as
embodied in the Protocol-are not strengthened, the possibility of a CFC-free atmosphere will
be delayed for five to ten years. Shimberg, Point/Counterpoint:A Sound Framework, a Flawed
Regulation, ENVTL. F., July/Aug. 1988, at 19.
252. For a description of the scientific expeditions, see Airborne Antarctic Ozone Experiment, supra note 17, and Browne, supra note 87, at CI, col. 1.
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and costs of ozone depletion to human and animal health, to plants and
crops, and to the environment generally. EPA and industry have already
shown that, while the short-term economic impact will be severe, the
long-term benefits are overwhelming. One regulatory impact analysis by
EPA estimated that, by 2075, it would cost the United States at least $27
billion to make the investments needed to implement the Montreal Protocol. 25 3 But the same study indicated that the benefits of removing
CFC's-adding in the avoided costs of cancer deaths and medical treatment, lost crops, and smaller fish harvests-could save the country
nearly $6.5 trillion by 2075.254
The United States can also provide the technical leadership necessary to find alternatives to the status quo. EPA and U.S. industries must
continue to research and develop environmentally safe substitutes for
CFC's and halons. 2 55 Ideally, these substitutes should not be toxic or
contribute to the greenhouse effect. More practically, they should at
least be less damaging than the CFC's currently in use. Industry must
also consider revising the processes that use CFC's. In some cases, minor processing changes can remove the need to use CFC's. Finally, EPA
and industry should continue to develop less expensive, more efficient
recycling methods to capture the CFC's before they begin their journey
into the atmosphere.
Second, the United States should use its political and economic
clout to push for more stringent international regulation of the chemicals
that cause ozone depletion. One way to move the international community is to lead by example, and the United States should assume that role
by expediting the complete ban on CFC's called for by EPA. 256 If a
complete ban is not feasible, then other, less drastic measures should be
considered, such as tax incentives to avoid the use of CFC's, mandatory
257
recycling, or mandatory product labeling.
Third, the United States, acting through its State Department and
the United Nations, should encourage those parties that have already
ratified the Montreal Protocol to reconvene and negotiate a more stringent and comprehensive agreement. The United States must convince
these nations that a wait-and-see attitude is shortsighted and will prove
253. Shabecoff, supra note 59, at A15, col. 1.
254. Id.
255. Browne, In Protectingthe Atmosphere, Choices are Costly and Complex, N.Y. Times,
Mar. 7, 1989, at Cl, col. 2.
256. Shimberg, supra note 251, at 18.
257. Product labeling is presently required in West Germany. Any product that is environmentally unsound is marked with a "Blue Angel." This symbol is universally known as an
indication that the product may hurt the environment. Brighton interview, supra note 135; see
also Nat'l Research Council, Nat'l Acad. of Science, Protection Against Depletion of Stratospheric Ozone by Chlorofluorocarbons,in 3 ENVIRONMENTAL LAW 323-24 (M. Squillace ed.
1988).
19891
OZONE DEPLETION
catastrophic in the long run. The United States could apply pressure, for
example, through its diplomatic and trade relations to press its allies and
trading partners to support further reductions in CFC production and
use. 2 58 The United States should also unreservedly support UNEP, the
United .Nations agency that, in large part, made the present agreement
possible. As one of the largest financial supporters of the U.N., the
United States is in a good position to ensure that UNEP continues to be
active and effective in this area.
Fourth, and finally, after sponsoring scientific research and pushing
for further international regulations, the United States should work to
keep the problem of ozone depletion in the public eye. CFC's and halons
are important to the economies of the United States and other nations;
the reduction or elimination of these chemicals will inevitably have some
negative economic repercussions. Widespread public awareness of the
ozone depletion problem and the need for reform will be critical to reaching an effective and politically viable solution.
POSTSCRIPT
In the weeks since the body of this Comment went to press, scientists and political leaders have taken steps designed to resolve some of the
scientific uncertainty and political equivocation that continues to surround the issue of ozone depletion. To assist those who may be researching the problem of ozone thinning, I have summarized these recent
developments below and offered several brief comments.
First, in January and February of 1989, NASA scientists operating
out of Norway collected and studied data on the Arctic stratosphere in
an attempt to understand the chemistry of the region. The scientists
found that the Arctic "has the same kind of disturbed chemistry that
already destroys ozone over Antarctica.
' 25 9
They predicted, however,
26°
that any loss in ozone would likely be less than that over Antarctica.
258. Doniger, supra note 202, at 18.
259. Shabecoff, Arctic Expedition Finds Chemical Threat to Ozone, N.Y. Times, Feb. 18,
1989, at Al, col. I (nat'! ed.). For a more scientific explanation of the findings of the Arctic
expedition, see Research News: Arctic Ozone is Poisedfor a Fall, 243 SCIENCE 1007-08 (1989).
260. Shabecoff, supra note 1. The findings were significant because until this expedition,
the world's scientists "had no idea if the chemistry that occurs in Antarctica occurs in the
Arctic, because Antarctica is much colder. Now [they] know that it does." Id. at A8, col. 2.
Ozone destruction occurs inside polar vortexes, or cyclonic wind systems, which form in the
polar winters and break up in the spring. The longer the polar vortex remains in place, the
more ozone is depleted. Id. According to Dr. Michael B. McElroy, chairman of Harvard
University's Department of Earth and Planetary Sciences, even if the polar vortex over the
Arctic disappeared before depleting much ozone, the ozone-depleting chemicals in the stratosphere could mix with air over other areas and destroy ozone throughout the Northern Hemisphere. Id.
The scientists involved in the expedition, as well as other scientists, environmentalists, and
Congressmen, urged that this evidence provides further support for the position that the world
must act quickly to arrest the pollution that contributes to ozone depletion. Rafe Pomerance,
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The scientists noted that these findings are preliminary, as they found no
clear evidence that ozone thinning had already occurred. In addition,
they could not predict with certainty that a substantial loss would occur
in the future. 2 6 1 While NASA's discoveries are significant, the scientists
themselves seemed to emphasize that scientific uncertainty remains.
Second, on the political front, Western Europe has taken a leadership position in attempting a rapid elimination of ozone-depleting chemicals. On March 3, 1989, the twelve member nations of the European
Economic Community announced that they would eliminate the production and use of all ozone-depleting chemicals by the year 2000.262 On
March 5, England convened a conference on the ozone layer that involved 112 nations. 263 Great Britain announced that it hoped to get the
conference participants to agree to an 85% reduction in 1986 levels of
64
emissions of CFC's and halons by 1999.2
This goal, unfortunately, was not realized. The parties attending the
conference failed to agree on deeper cuts than those set at Montreal because of concerns raised by the Soviet Union and the developing countries. The Soviet Union refused to make additional cuts before studying
the latest scientific data on ozone thinning. 265 India and China, two of
the developing countries that have not signed the Montreal Protocol,
protested the inherent unfairness of asking developing nations to shoul266
der the burden of a problem largely created by developed nations.
Under the present control provisions, whereby countries must halve their
a policy analyst with the World Resources Institute, stated that the results were "'another
major piece of the puzzle that adds to the urgency of the need to reach a decision to eliminate'" all CFC's. Id.
261. Id. at A1, col. 1.
262. Whitney, 12 Europe Nations to Ban Chemicals that Harm Ozone, N.Y. Times, Mar. 3,
1989, at 1, col. 6 (nat'l ed.). In addition, the EEC plans to cut production by 85% as soon as
possible. Id. Such cutbacks go well beyond those called for in the Montreal Protocol.
263. See id. at 4, col. 1. Canada has also taken a leadership position in the fight to ban
ozone-depleting chemicals. On February 20, it announced "that it will ban most ozone-damaging chemicals during the next 10 years and called on other governments to do the same."
Canada to Ban Ozone-Harming Chemicals, San Francisco Chron., Feb. 21, 1989, at 2, col. 4.
Canada also recently hosted an international conference on atmospheric problems, drawing
participants from 25 countries to discuss a legal framework to protect the atmosphere from
threats such as acid rain, the thinning of the ozone layer, and temperature changes. Id. At the
conference, which commenced on February 21, 1989, the Canadians expressed support for
protecting the Earth's atmosphere with a comprehensive international agreement by 1992. Id.
264. Whitney, supra note 262, at 1, col. 6. England has also encouraged more countries to
sign onto the Montreal Protocol. Whitney, Talks on Ozone End in Britain Without Fixing
ChemicalBan, N.Y. Times, Mar. 8, 1989, at A8, col. 1 [hereinafter Talks on Ozone End] (nat'l
ed.).
265. Talks on Ozone End, supra note 264.
266. Soviets, Third World Countries Stall on Ozone Ban, San Francisco Chron., Mar. 7,
1989, at 17, col. 2. China proposed that the developing countries receive more relaxed controls
and a longer phase-out time than the developed nations. Id. China also proposed the creation
of an international development fund with donations from the major CFC producers, in addition to existing foreign aid, to help the developing countries switch to substitute chemicals. Id.
1989]
OZONE DEPLETION
1986 production and consumption by 1999, the Indian Minister for the
Environment pointed out that "developed countries would still be able to
take care of their essential needs, but the developing nations ... might
not be able to meet their expanding needs. '267 Thus, while progress has
been made, the international community remains equivocal in its re26
sponse to ozone depletion.
8
267. Id. The conference highlighted some of the stumbling blocks standing in the way of
reaching international cooperation-especially the difficulty of obtaining developing countries'
support. Once the international community recognizes these barriers, it may work toward
removing them. Already, industrialized countries have made some progress in this area. First,
both England and the United States have expressed their understanding and sympathy for the
stance of the developing countries. At the conference, William Reilly, EPA Administrator,
stated that the Bush administration is "very sensitive" to Third World concerns. Id. England's Prime Minister Margaret Thatcher stated that " '[c]learly it would be intolerable for the
countries which have already industrialized, and have caused the greater part of the problems
we face, to expect others to pay the price in terms of their people's hopes and well-being.'"
Talks on Ozone End, supra note 264, at A8, col. 1. Second, although they have admittedly just
begun thinking about the problem, American and British officials anticipate that the World
Bank could channel environmental aid from industrialized to developing nations. Id.
The discussion about ozone depletion has far from ended. The Montreal Protocol calls
for a periodic review process, which allows the parties to suggest further reductions or the
inclusion of other chemicals in the phase-out process. See supra notes 156-63 and accompanying text. To begin the process, parties to the Vienna Convention and the Protocol will meet in
Helsinki, Finland in late April or early May of 1989. UNEP NORTH AMERICAN NEWS, Feb.
1989, at 1. There, participating nations will decide whether to recommend a tightening of
provisions at a full review conference in London to be held in May of 1990. Talks on Ozone
End, supra note 264, at A8, col. 1.
268. Nonetheless, the moves by England and the European Community are encouraging
for several reasons. First, the EEC had earlier resisted attempts to quickly reduce CFC production. See supra notes 109-25 and accompanying text. This recent call to reduce emissions
faster than called for in the Protocol represents a significant change in attitude by those countries. Second, the events indicate that some nations are taking bold unilateral action, in part
with the hope that other nations will follow. England's Secretary of State for the Environment, Nicholas Ridley, stated at the conference that he hoped many countries would follow
the lead of the EEC. Whitney, supra note 262, at A4, col. 1. Third, the example set by England and the EEC has had some effect. One day after the Europeans acted, President Bush
promised that the United States would completely phase out CFC's and halons by the end of
the century, provided that safe substitutes could be found. Whitney, London Talks Hear Call
for '97 Ban on Anti-Ozone Chemicals, N.Y. Times, Mar. 6, 1989, at All, col. 1. Finally,
England achieved its goal of convincing many previously recalcitrant nations to cooperate at
some level. By the end of the four-day conference, 20 additional countries said they would
ratify the Montreal Protocol; more than a dozen others promised to seriously consider joining.
Talks on Ozone End, supra note 264, at A8, col. 1.