Peter M. Crofton, Alternative Fuels and Developing Nations: Who Will Pay the Piper?

• Citation: Vol. 24 No. 1
• Publication year: 2010
• topic: Environmental Law,Energy & Natural Resources,Transportation

ALTERNATIVE FUELS AND DEVELOPING NATIONS: WHO WILL PAY THE PIPER?

Peter M. Crofton, Esq.^*

Global warming is properly considered a subset of the larger issue of global climate change, for which many natural and man-made causes are responsible.¹

Global climate change includes issues of the effect of desertification and changes in vegetation and animal populations.²Contributing causes of global climate change range from volcanic activity³to aircraft contrails.⁴

Regardless of the label, shifts in weather patterns and increased average temperatures have been observed across the globe.⁵While the causes of the changes are not without debate,⁶it is widely accepted that human production of greenhouse gases is one factor contributing to these changes.⁷More importantly, continued production of greenhouse gases is predicted to exacerbate, perhaps dramatically, the amount of global climate change.⁸

Much current research is focused on using alternative fuels to reduce greenhouse gas emissions, primarily in the transportation sector.⁹Proponents see alternative fuels as a way to significantly reduce or eliminate tailpipe emissions by replacing gasoline and other petroleum fuels.¹⁰However, the commercialization of alternative fuels such as hydrogen requires continued funding of research and development of new technologies to overcome remaining technical barriers.¹¹Additionally, the commercialization of alternative fuels will require substantial spending to create an infrastructure that can supply those fuels on a scale and at a cost comparable to the current network of petroleum fuel stations and distribution pipelines.¹²

The worldwide use of petroleum as a transportation fuel means that transitioning to cleaner fuels requires the participation of the entire international community. Consequently, alternative fuels may again threaten the international community with the all too familiar problem of how to migrate developing countries to a new, environmentally friendly technology from a proven and reliable but environmentally unfriendly technology. More precisely, alternative fuels may present the question of whether it is in the best interest, economically and otherwise, of the developed nations to pay a substantial amount of the cost of transitioning the developing nations away from greenhouse gas producing petroleum fuels.

This Article will attempt to present possible international legal frameworks for financing the transition of developing nations towards alternative fuel based economies by drawing from historical examples of international assistance on environmental issues. This Article will also touch on some of the considerations that might affect whether, and to what extent, the developed nations should assist the developing nations with this transition.

I. HISTORICAL EXAMPLES OF INTERNATIONAL EFFORTS TO REDUCE

HARMFUL EMISSIONS

The international community has cooperated in many instances to address global environmental issues. Instances include species preservation,¹³reducing ocean pollution,¹⁴and reducing air pollution.¹⁵However, a closer examination of these laudable efforts reveals wide disparity in how the nations addressed the underlying problems.

Achieving significant reductions in greenhouse gas emissions will require more international cooperation than merely establishing emissions targets or limits. Such reductions will require an international commitment to phase out existing technologies and processes in favor of still-developing technologies, such as those associated with hydrogen fuels. Encouragingly, as will be discussed below, the international community has been able to make this type of commitment in addressing air pollutants in the past.¹⁶

Two examples of curtailing air pollutant discharges that pre-date global warming concerns are lead additives in gasoline and ozone depleting chemicals ("ODC"). These examples demonstrate how different approaches resulted in radically different timelines for achieving reductions in the emissions of the targeted pollutants.

A. Lead Additives

In the early 1900s, car makers experimented with ways to control premature fuel ignition, commonly known as engine knock.¹⁷In the early

1920s, gasoline went on sale in the United States with tetraethyl lead added to control engine knock.¹⁸By the mid-1930s, approximately 90% of the gasoline sold in the United States had a lead additive.¹⁹

From the beginning, critics of leaded gasolines contended that lead additives posed a health risk. As early as 1925, some researchers warned of dangers associated with inhaling lead particles found in automobile exhausts produced from leaded gasolines.²⁰Additionally, several plant workers died from lead poisoning at facilities that produced lead additives.²¹

After passage of the Clean Air Act in 1970, those health concerns, coupled with the deleterious effect of lead on the newly mandated catalytic converters, resulted in the phasing out of leaded gasolines in the United States.²²In 1973, the United States Environmental Protection Agency ("EPA") required the sale of lead free gasoline for new automobiles and announced the planned phase- down of lead additives in gasoline for existing automobiles.²³However, the EPA did not require the complete phasing out of lead additives until 1996.²⁴

The phase out of leaded gasoline in the United States took over two decades to achieve. However, the health benefits of the phase-out were observed almost immediately. In 1982, while the phase out was still ongoing, the Centers for Disease Control and Prevention reported that lead consumed in gasoline had dropped by 50% between 1976 and 1980, and that average lead levels in human bloodstreams had dropped by 37% percent.²⁵By 1994, the

Department of Health and Human Services reported that the average lead levels in human bloodstreams in the United States had declined 78% between

1978 and 1991.²⁶

While the United States began phasing out leaded gasolines in the 1970s, the international community moved much slower. It was not until 1992 that the U.N. Conference on Environment and Development convened in Rio de Janeiro ("Rio Conference") and expressly called for the international phase out of leaded gasolines in the U.N. Commission on Sustainable Development's

1994 report.²⁷This call was echoed by the World Bank's 1996 recommendation for phasing out leaded gasolines.²⁸

After the Rio Conference, the international community moved to phase out leaded gasolines. In 1998, the European Union banned leaded gasoline beginning in 2000.²⁹In 2001, African leaders agreed to phase out leaded gasoline by 2005.³⁰As of January 2008, almost all nations have phased out leaded gasoline-only some countries in Africa, Asia, Eastern Europe, and the Middle East continue to sell gasoline containing lead.³¹

B. Ozone Depleting Chemicals

In contrast to the relatively glacial pace at which leaded gasolines are being phased out, the world community acted quickly to reduce the production, use, and emission of ODCs. The most widely known of the ODCs are chlorofluorocarbons ("CFCs"), which are long-lived and relatively inert chemicals developed in the 1930s.³²These non-toxic and non-flammable compounds were widely used as refrigerants, aerosol propellants, solvents, and fire suppressants.³³Unfortunately, ODCs degrade when exposed to ultraviolet light in the upper atmosphere, producing chlorine-a compound that readily breaks down stratospheric ozone.³⁴Stratospheric ozone shields the earth from excessive ultraviolet radiation.³⁵

In 1974, scientists first reported that CFCs might pose a danger to the earth's ozone layer.³⁶In 1978, the United States banned the use of certain CFCs as propellants in aerosol cans but did not prohibit other uses of CFCs, such as an air conditioner refrigerant.³⁷Other countries, however, took no action to limit the production or use of CFCs.

Amid mounting evidence that upper atmospheric ozone levels were declining,³⁸the nations of the world agreed in 1986 to take steps to protect the ozone layer.³⁹The resulting agreement-the Vienna Convention for the Protection of the Ozone Layer-required the signatories to "control, limit, reduce or prevent human activities under their jurisdiction or control should it be found that these activities have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer."⁴⁰Later that year, British scientists discovered a hole in the earth's ozone layer over Antarctica, thereby confirming the predicted depletion of the ozone layer.⁴¹

The community of nations responded to this discovery by adopting the Montreal Protocol in 1987.⁴²It established various deadlines for phasing out substantially all production and use of ODCs.⁴³The Montreal Protocol recognized the distinction between the developed and the developing nations, but called upon both to meet the same emission standards without providing financial assistance.⁴⁴However, the Montreal Protocol provided that developing countries would have a grace period to phase out before compliance with the mandatory control provisions would be required.⁴⁵

The developed nations quickly signed on to the Montreal Protocol;⁴⁶developing nations, in contrast, were slower to respond.⁴⁷Due to this slow response, the Montreal Protocol was amended in 1990 to provide financial assistance to developing nations.⁴⁸The assistance takes the form of a pool of money-the Multilateral Fund-contributed by developed nations to assist developing nations phase out the use of ODCs.⁴⁹

An executive committee administers the Multilateral Fund with technical assistance from the United Nations Environment Programme ("UNEP").⁵⁰

UNEP funds the Multilateral Fund via an annual assessment on the nations that are presumed to have been the producers or consumers of the majority of the ODCs, i.e., the developed nations and any developing nation that consumes more than 0.3 kg of ODCs per capita per year.⁵¹By way of reference, the

United States has been...