Strawberries versus Skin Cancer

That’s a central question for states as they gather this week in Dakar, Senegal for the 17th Meeting of the Parties to the Montreal Protocol. Unlike its more controversial cousin, the Kyoto Protocol, the Montreal Protocol is widely regarded as the success story for using treaties to address a global problem — i.e., the hole in the ozone layer. Although it’s a harmful pollutant at ground-level, it is well documented that we need ozone gases in the atmosphere over our heads, as they block out harmful ultraviolet-B radiation from the sun. The less protection we get from the ozone layer, scientists say, the more we’ll see incidences of skin cancer and weakened immune systems, not to mention damage to crop yields, fisheries, and other eco-systems. So, it was largely hailed as an achievement, when states banded together and agreed to limit their consumption and production of ozone-depleting substances. For example, you have the Montreal Protocol system to thank for no longer having ozone-depleting chemicals such as Freon or other chlorofluorocarbons (CFCs) in your automobile air conditioner or your refrigerator. Based on these results, UN Secretary General Kofi Annan has called the Montreal Protocol “[p]erhaps the single most successful international agreement to date.”

But, we’re not out of the woods yet, as there are still chemicals being produced today that threaten the ozone layer, most notably methyl bromide. Methyl bromide is a pesticide that protects certain crops, such as California strawberries and Florida tomatoes, from harmful organisms. Under the Montreal Protocol, as amended, developed states, including the United States, agreed to phase-out their consumption and production of methyl bromide by January 1, 2005, with a few exceptions, including one for “critical uses” as agreed by the parties to the treaty.

The problem was that the 2005 U.S. request for continued critical uses of methyl bromide not only exceeded all of the other states’ critical use requests combined, but the levels requested by the United States actually exceeded the consumption and production limits EPA had put in place in 2003. The U.S. position is that its farmers need methyl bromide since it’s often the only pesticide that really works; i.e., there are no technically and economically feasible alternatives to it. Thus, the claim, that without methyl bromide, you can forget about eating strawberries. On the other side, NGOs and, to a lesser extent a number of European states, have cried foul, suggesting the U.S. position is not science-based so much as it involves protecting the economic position of politically powerful lobbying groups in swing states at the expense of human health (i.e., increased rates of skin cancer) and the environment. There have also been allegations that the chemical manufacturers and distributors have long stockpiled methyl bromide in ways that won’t be covered by the treaty, but which, when used, will actually affect the ozone layer.

The methyl bromide issue proved problematic in both of the last two Meetings of the Parties, each of which required separate Extraordinary Meetings of the Parties to deal with the question of how much of a critical use exemption to give the United States and other similarly situated states (disclosure notice: I served as the U.S. lawyer to some of these meetings in 2003 and 2004). In both cases, the United States generally got what it asked for. Thus, the score to date, strawberries: 2; skin cancer: 0.

But since the treaty requires the critical use exemptions to be approved on an annual basis, the game is far from over. I am sure the methyl bromide question will prove equally tough this week in Dakar. Without wading into the quagmire of how “critical” these continued uses of methyl bromide really are, I would expect that we’ll see foreign states upping the pressure on the United States to demonstrate some political will to reduce its consumption and production of methyl bromide, regardless of whether it makes technical or economic sense to the individual farmers to do so. For example, the CFC phase-out originated before alternatives existed, and it was the phase-out itself that drove industry to find replacements. I would bet some states will take the position that the continuing broad availability of methyl bromide under the critical use exemption may actually have stymied such innovation here (although USDA says they’re working hard on researching alternatives). In any event, keep an eye on the Montreal Protocol this week to see who wins the latest round. My money is on strawberries, although I’ll use my winnings to buy SPF 40 for my kids just in case.