The Montreal Protocol: Fit for Hydroflurocarbons

• Author: Veronica Kennedy
• Position: J.D. candidate, May 2014, at American University Washington College of Law
• Pages: 25-25

25WINTER 2012

continued on page 62

THE MONTREAL PROTOCOL: FIT FOR

HYDROFLUROCARBONS

by Veronica Kennedy*

As the most successful environmental treaty to date, the

Montreal Protocol1 is the prime arena for implementing

policy to reduce hydrof‌luorocarbon (“HFC”) emissions

and mitigate the threat of climate change.2 The Montreal Protocol

began phasing out chlorof‌luorocarbon (“CFC”) production and

consumption in 1989 and has since stopped, and even reversed,

destruction of the ozone layer.3 Hydrochlorofluorocarbons

(“HCFCs”) were produced to replace the highly ozone-depleting

CFCs because of HCFCs’ reduced ozone depleting potential.4 To

completely phase out all ozone depleting substances (“ODSs”),

industrial gas producers introduced HFCs to replace HCFCs.5

Although HFCs have no ozone depleting potential, they have

thousands of times the strength of carbon dioxide to warm the

earth, known as “global warming potential.”6 HFCs, like HCFCs

and CFCs before them, are used in refrigeration and air condition-

ing, solvents, foam production, sterilization, f‌ire extinguishing,

and aerosols.7 The next phase is to replace HFCs with gases

that have low to no global warming potential. Based on current

replacement technology, the treaty’s historical and political suc-

cess, and its legal framework, the Montreal Protocol should

house the HFC phase out to reduce greenhouse gas emissions.

Low to no global warming potential replacement gases are

currently available in each sector of the market.8 Carbon diox-

ide, hydrocarbons, and ammonia are currently used in Europe

and Asia to replace HFCs in foams, refrigeration, and air condi-

tioning.9 Even so, the availability of these alternatives warrants

the Parties to the Protocol to create an HFC phaseout schedule,

forcing the market away from HFCs towards these alternatives.

Furthermore, the treaty’s historical and political success

shows that adding an HFC phaseout schedule is politically

feasible. In 1987, twenty-four countries signed the Montreal

Protocol agreeing to control eight chemicals.10 Today, the treaty

is universally ratif‌ied and controls 100 chemicals.11 Much of this

success is due to the f‌lexible legal framework discussed below.

The increase in the number of chemicals for which it provides

phaseout schedules shows that HFCs can be added to the list.

In addition, last November, 108 countries indicated their sup-

port for an HFC phaseout by signing a request for action to cap

HFC consumption.12

The treaty’s legal framework is also conducive to an HFC

phaseout schedule. The Protocol successfully relied on the prin-

ciple of common but differentiated responsibility (“CBDR”) to

bring developing countries on board, allowing these nations an

extended grace period to phase out ODS.13 It also established

assessment panels, which provide the Parties the best available

information for decision-making.14 These principles could also

be applied to an HFC phase out. CBDR could bring f‌inancial

and technology transfers to developing countries to aid the

phase out of HFCs without stretching already-limited budgets,

similar to the current Multilateral Fund process.15 Assessment

panels, which allowed Parties to quickly control new chemicals,

could continue to provide the latest scientific information

on replacement gases to HFCs, allowing for stricter control

measures on HFC use.16

The Montreal Protocol was successful in reacting to the

threat of ozone depletion. Since its initial ratif‌ication, it has

enabled the Parties to reduce over ninety-seven percent of global

consumption of controlled ODS.17 Considering the replacement

technologies available, the success of the treaty, and its f‌lexible

legal framework, the Montreal Protocol is the best context under

which HFC consumption can be reduced to start mitigating the

threat of climate change.

Endnotes: The Montreal Protocol: Fit for Hydrof‌lurocarbons

1 Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16,

1987, 27 U.N.T.S. 1522.

2 Climate Politics Delay Phase-Out of Super Greenhouse Gases by Montreal

Protocol: India, China and Brazil Thwart Action on HFCs, CLIMATE CONTROL

CO. ASS’N (Jan. 22, 2012, 8:23PM), http://www.ccca.org.nz/news/10/15/

Climate-Politics-delay-Phase-out/.

3 The Montreal Protocol on Substances that Deplete the Ozone Layer: The

Evolution of the Montreal Protocol, UNITED NATIONS ENV’T PROGRAMME [UNEP]

OZONE SECRETARIAT (Feb. 19, 2012, 10:31PM), http://ozone.unep.org/new_site/

en/montreal_protocol.php.

4 U.S. ENVTL. PROT. AGENCY [U.S. EPA], INVENTORY OF U.S. GREENHOUSE

GAS EMISSIONS AND SINKS: 1990–2009 62-63 (2011); U.N. Env’t Programme

and World Meteorological Org., Intergovernmental Panel on Climate Change

[IPCC], Intergovernmental Panel on Climate Change, Changes in Atmospheric

Constituents and in Radiative Forcing in Climate Change 2007: The Physical

Science Basis, 212 (S. Solomon, et al. eds., 2007) (providing HFC-23’s GWP

as 14,800).

5 U.S. EPA, supra note 4.

6 Id.

7 Id.

8 ENVTL. INVESTIGATION AGENCY, THE MONTREAL PROTOCOL IN 2011: DYNAMIC

ACTION FOR OZONE AND CLIMATE PROTECTION 10 (Feb. 20, 2012), http://www.

eia-international.org/wp-content/uploads/EIA_2011_OWEG.pdf.

9 Id. at 10-12.

* Veronica Kennedy is a J.D. candidate, May 2014, at American University

Washington College of Law.