Foreign Relations of the United States, 1981–1988, Volume XLI, Global Issues II

355. Action Memorandum From the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs (Negroponte) to the Under Secretary of State for Economic Affairs (Wallis)¹

Washington, November 28, 1986

SUBJECT

• Circular 175: Request for Authority to Negotiate a Protocol to the Convention for the Protection of the Ozone Layer

ISSUE FOR DECISION:

Whether to authorize negotiation of a protocol to the Vienna Convention for the Protection of the Ozone Layer which would control emissions of ozone-depleting substances.

ESSENTIAL FACTORS:

The Problem

There is general scientific agreement that human activities are substantially altering the chemistry of the atmosphere in ways which threaten both the quantity and the vertical distribution of ozone. Certain chlorine and bromine substances, when emitted into the atmosphere, act as catalysts in a series of chemical reactions resulting in a depletion of ozone. Ozone depletion, by permitting greater quantities of harmful ultra-violet radiation to reach the earth’s surface, will pose significant, even if currently difficult to quantify, risks for health and ecosystems. Given the complex chemistry and dynamics of the atmosphere, scientific uncertainties currently prevent a conclusive determination of safe levels of emissions. Because of the long atmospheric lifetime of these molecules, emissions affect the ozone layer for decades. The nature of the ozone layer requires international action if protective measures are to be effective.

The chemicals at issue for this protocol—chlorofluorocarbons (“CFCs”) and some bromine compounds—have substantial economic and social value, being widely used in refrigeration, foam-blowing, fire-extinguishers, as solvents, and in most countries as aerosols. (Their use in non-essential aerosols was banned in the United States in 1978.) The U.S., Japan and EC countries currently account for about 90% of world production and consumption.

The International Process

The Vienna Convention for the Protection of the Ozone Layer, adopted under auspices of the U.N. Environment Program (UNEP) on March 22, 1985² and ratified by the United States on August 14, 1986,³ provides for cooperation in research, monitoring and information exchange. The Convention obliges the Parties to cooperate in taking measures 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. The Diplomatic Conference which adopted the Convention did not reach agreement, however, on a protocol to control emissions of ozone-depleting substances. The final act of the Diplomatic Conference called for a series of scientific and economic workshops on the atmospheric science, effects of ozone depletion, and alternative control measures, followed by resumption of negotiations, looking toward adoption of a control protocol in 1987 if possible. Negotiations are to resume December 1, 1986, with a diplomatic conference to conclude the protocol tentatively scheduled for April 1987.

The Domestic Setting

The Environmental Protection Agency, under terms of a court order approving a settlement reached in a lawsuit against the EPA Administrator by the Natural Resources Defense Council,⁴ must publish in the Federal Register by May 1, 1987 a proposed decision on the need for further domestic regulation of CFCs under Sec. 157 of the Clean Air Act. Compared to other environmental laws, the Act sets a low threshhold for required action by EPA: “the Administrator shall propose 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 in the stratosphere may reasonably be anticipated to endanger public health or welfare.” In this connection, EPA is going through an extensive risk assessment process.⁵ A final EPA decision is required by the court order by November 1, 1987.

An important goal in seeking an early and effective international agreement (in addition to the goal of more effectively protecting the ozone layer) is to avoid disadvantage to U.S. industry as a result of unilateral U.S. regulatory action required by the Clean Air Act. Unilateral U.S. action in advance of international agreement could undercut the global control effort.

The principal producer- and user-industry group, the “Alliance for Responsible CFC Policy,” has reversed its previous total opposition to controls, issuing a statement September 16, 1986 that “responsible policy dictates, given the scientific uncertainties, that the U.S. government work in cooperation with the world community . . . to consider establishing a reasonable global limit on the future rate of growth of fully halogenated CFC production capacity.”

Proposed Position

Our approach in the international negotiations is intended to influence those negotiations to achieve the most effective international agreement possible. It does not prejudge the EPA Administrator’s decision on domestic regulation.

Although considerable evidence exists linking certain chlorine and bromine substances to depletion of ozone, remaining scientific uncertainties prevent any conclusive statement concerning safe levels of emissions. As a result, the Administrator of EPA recommends an international risk management strategy which would give a strong incentive for rapid development and employment of emission controls, recycling practices and safer substitute chemicals. We should therefore seek a protocol that explicitly or in effect provides for:

I. A near-term freeze on the combined emissions of the most ozone-depleting substances;

II. A long-term scheduled reduction of emissions of these chemicals down to the point of eliminating emissions from all but limited uses for which no substitutes are commercially available (such reduction could be as much as 95%), subject to III; and

III. Periodic review of the protocol provisions based upon regular assessment of the science. The review could remove or add chemicals, or change the schedule or the emission reduction target.

These elements would provide a desirable margin of safety against harm to the ozone layer while scientific research continues. At the same time, this approach would provide as much certainty as possible for industrial planning in order to minimize the costs of reducing reliance on these chemicals, while allowing adequate time for adjustment.

The timing, stringency and scope of the phased reductions will have to be negotiated. We would promote a scheme which allows flexibility for each nation to determine how it will implement domestically its international obligation. In reponse to UNEP’s invitation, we have prepared for discussion purposes the attached draft text for the operative paragraphs of a protocol.

We would favor setting national limits at or near current levels, in order to avoid increases in emissions from any Party. Elimination of most emissions would obviate the difficult question of equity—the view that developing countries have a right to a fair share of world markets if a global limit on emissions is set: developing countries will have less reason to seek to expand use of products which will be obsolete in the forseeable future and they will benefit from the development of substitutes and of recycling and containment techniques.

We will seek to include in the protocol measures to regulate relevant trade between parties and non-parties in order to create incentives for nations to adhere to the protocol’s emissions limits. These measures will have an ancillary effect of protecting U.S. industry from unfair competition. We will assure that any trade provisions included in the protocol are consistent with the General Agreement on Tariffs and Trade (GATT) and other aspects of U.S. trade policy.

We have undertaken extensive consultations with industry and environmental groups and will continue to do so as the negotiations progress.

Legal Authority and Funding

We expect that no additional legislation will be required to implement the provisions of a protocol specifying the regulation of ozone-depleting substances. As discussed in the attached legal memorandum,⁶ EPA has authority under the Clean Air Act to regulate ozone-depleting substances which may reasonably be expected to endanger public health or welfare and is currently conducting the risk assessment required to determine the need for additional regulation.

It has not yet been determined whether this protocol—would be concluded as an executive agreement or as a treaty subject to the advice and consent of the Senate. This will depend, in part, on the content of the protocol and nature of the undertakings therein. The requirements of the National Environmental Policy Act (NEPA) and E.O. 12114 on Environmental Effects Abroad of Major Federal Actions are currently being considered.

Costs related to implementation of a protocol will depend on the requirements of the protocol. As a party to the Vienna Convention for the Protection of the Ozone Layer, we are already committed to the establishment of a Secretariat (in an existing international organization such as UNEP or WMO) and Conference of the Parties when that agreement enters into force. Any additional costs to administer the protocol will be incremental. We will seek to minimize the services required of the Secretariat and any requirement for funding to support such services, and we will make every effort to ensure that necessary support staff are provided within existing levels. EPA will be responsible for reports to the Secretariat, participation in technical reviews, and other commitments of a technical nature assumed under the protocol.

Financial support for a cooperative science program to form the basis for periodic review of the protocol provisions will need to be considered. EPA, NASA, NOAA and other technical agencies would participate in any cooperative science program resulting from the protocol with their own funds. The U.S. already has a dynamic and extensive program on both the atmospheric science and effects science, and as such is already by far the largest contributor to international scientific cooperation in these areas. The protocol may be a means to draw additional commitments from other nations to contribute to scientific efforts. It will be possible to assess the need for any additional U.S. support in this area only as the negotiations progress. We will consult with and obtain the approval of OMB regarding any commitment that could not be satisfied out of currently appropriated funds.

RECOMMENDATION:

That you authorize negotiation of a protocol to the Vienna Convention for the Protection of the Ozone Layer which would control emissions of those substances which are the most significant contributors to ozone depletion in accordance with the principles outlined above. Subsequent authority will be sought to conclude any international agreement resulting from these negotiations.⁷

1. Source: Reagan Library, Bledsoe, Ralph: Files, 330—Stratospheric Ozone (1985 to June 1987) [1]. No classification marking. Drafted by Butcher on November 16 and revised on November 26; cleared in OES, OES/ENH, L, L/OES, L/T, L/EBC, E, EB, IO, M/MO, M/COMP, EPA, NASA, NOAA, Commerce, USTR, DPC, CEQ, DOE, and OMB. A stamped notation on the memorandum indicates that Wallis saw it.
2. See Document 352.
3. See footnote 2, Document 353.
4. See Morganstern, Economic Analyses at EPA: Assessing Regulatory Impact, p. 139.
5. In January 1986, the EPA published a Stratospheric Ozone Protection Plan. The adoption of the Montreal Protocol superseded the need for future regulations.
6. Undated, attached but not printed.
7. Wallis initialed the approve option on November 28.