The Post-Ratification Consensus Agreements of the Parties to the Montreal Protocol: Law or Politics? An Analysis of Natural Resources Defense Council v. EPA

AuthorAndrew D. Finkelman
PositionAndrew D. Finkelman: J.D. Candidate, The University of Iowa College of Law
Pages07

Andrew D. Finkelman: J.D. Candidate, The University of Iowa College of Law, 2008; M.A. in Law and Diplomacy Candidate, The Fletcher School, Tufts University, 2008; B.A., Columbia University, 2002. Deep gratitude to Professors Randall Bezanson, Steven Burton, and Jonathan Carlson for the guidance they provided on this project. I would also like to thank my wife, Lauren, for her unwavering love and encouragement. All errors and omissions are my own.

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I Introduction

In 1900, the United States Supreme Court announced in the seminal case of The Paquete Habana that "[i]nternational law is part of our law."1Although the Paquete Habana was merely a fishing vessel, its capture at the outbreak of the Spanish-American War prompted one of the Supreme Court's most significant statements on international law. Courts and commentators alike have since grappled with the legal significance of this statement, attempting to define the relationship between international law and U.S. law.2 The maxim raises two separate questions: what is the relevant international law, and is that law cognizable in U.S. courts? One hundred and eight years have passed since the Supreme Court decided The Paquete Habana, yet courts continue to struggle with these vexing questions.3

In Natural Resources Defense Council v. EPA,4 the Court of Appeals for the District of Columbia Circuit confronted precisely these issues. The court took up what it termed "post-ratification consensus agreements"5 to the Montreal Protocol on Substances That Deplete the Ozone Layer ("Montreal Protocol" or "the Protocol").6 The opinion analyzed an agreement that the parties to the Protocol reached, allowing exceptions to the Protocol's planned phaseout of methyl bromide.7 The agreement permitted member states to exempt a certain amount of the chemical from the agreed-upon phaseout schedule for "critical uses."8 The Natural Resources Defense Page 668 Council ("NRDC") challenged the EPA regulations implementing this agreement under the Clean Air Act ("CAA"), arguing that the allocations did not comply with the terms agreed to by the parties.9 The court's holding rested on the fact that the agreement to exempt certain uses from the ban on methyl bromide was contained in two consensus Decisions10 made at the annual Meetings of the Parties to the Montreal Protocol. Such Decisions, according to the court, constitute "political commitments" rather than "law" enforceable in U.S. courts.11 Because the NRDC could not maintain a legal claim arising from a violation of a nonbinding "political commitment," the D.C. Circuit dismissed the case.12

The ruling is significant for several reasons. First, while the court's ultimate conclusion that the NRDC may not enforce the Decisions against the government is probably correct, its reasoning is questionable. Therefore, the opinion is profoundly unsatisfying. The court rested its characterization of the Decisions as "political commitments" largely on an analogy to domestic contract law, while missing (or avoiding) many of the case's international-law implications. It further failed to consider other relevant evidence, including the negotiating record and practice of the parties germane to the court's deliberations.13 The case thus implicates international law in the context of a multilateral treaty regime.14

The far-reaching implications of classifying the Decisions as "non-law" are not confined to international law, however.15 As the D.C. Circuit noted Page 669 in its opinion, the case raised the possibility of confronting "serious constitutional questions," including the nondelegation doctrine, constitutional procedural requirements for the valid enactment of laws, and the separation of powers.16 Thus, the case also relates to whether, and how, U.S. law incorporates international law.

The legal character of the Decisions of the Parties to the Montreal Protocol is particularly relevant because the issue remains largely unaddressed by courts and academics. Indeed, the case presented a question of first impression for the D.C. Circuit.17 The few commentators who have written about the Decisions have not reached a definitive conclusion. Several scholars have ambiguously hinted that the Decisions do not create binding international legal obligations.18 Others have concluded the opposite.19 The Page 670 D.C. Circuit confronted the Decisions with limited scholarly commentary, judicial pronouncements, or practice20 of the parties to the Montreal Protocol on which to draw.

On the twentieth anniversary of the Montreal Protocol,21 the parties to the Montreal Protocol declared 2007 the "International Year of the Ozone Layer"22 and recognized that the ozone layer will "recover" if there is "full compliance" with the Montreal Protocol.23 As multilateral treaty regimes proliferate, U.S. courts will surely confront questions concerning the legal effects of other consensus agreements in the future.24 Finally, the opinion also raises important questions about the future of U.S. cooperation with multinational efforts to address global environmental degradation.

In Part II, this Note reviews the background to the Montreal Protocol, its incorporation into U.S. law, and the D.C. Circuit's opinion. Part III presents the litigants' arguments and the court's opinion. In Part IV, the Note scrutinizes two of the court's rationales: that the Decisions are not enforceable as part of the Protocol because "agreements to agree" are not enforceable and that the prospective unconstitutionality of enforcing such Decisions weighs against recognizing them as "law." The Note then addresses the court's third significant conclusion: that as a matter of international law, the Decisions are merely political in nature. The Note considers other relevant evidence that should bear on an analysis of the Decisions and attempts to measure, by reference to four descriptive Page 671 categories, the "legal" qualities of those Decisions.25 The Note focuses on two Decisions in particular-Decision IX/6 and Decision Ex.I/3-from which it draws conclusions about decisions generally.26 The Note concludes that some Decisions should be considered to be law in the international system. The two Decisions at issue in Natural Resources Defense Council v. EPA are rightly considered law. However, because the United States has not implemented the Decisions as domestic law and because individuals likely may not invoke the Decisions against the United States internationally, the prospect of individuals enforcing them against the federal government in U.S. courts remains unlikely.

II Background

The Montreal Protocol is a comprehensive multilateral treaty designed to halt the deterioration of the ozone layer.27 The Protocol's creation represented a crucial and innovative step toward reducing ozone pollution and is generally regarded as a success.28 The Protocol, however, was not the first attempt to address ozone depletion.

Identification of the ozone threat in the 1970s was primarily responsible for encouraging the United Nations to convene the first conference to promote global coordination on environmental protection in Stockholm, Sweden, in 1973.29 The participants of the Stockholm conference saw the Page 672 creation of the United Nations Environment Programme ("UNEP"), a U.N. agency charged with spurring collective action to address threats to the global environment.30 During the late 1970s and early 1980s, UNEP coordinated meetings of experts and proposed nonbinding recommendations to be implemented on the national level.31

These efforts led to the ratification of the Vienna Convention for the Protection of the Ozone Layer ("Vienna Ozone Convention") in 1985.32Although the Vienna Ozone Convention represented the first major international attempt to collectively address ozone depletion, it did not impose particularized obligations on its parties.33 The Vienna Ozone Convention was a "framework convention"34 for further multilateral cooperation.35 It called for research and information exchange "with a view to the adoption of protocols and annexes."36 The Vienna Ozone Convention also laid the legal foundation for the Montreal Protocol.37 The Convention has continued to govern various aspects of the Montreal Protocol- including...

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