Montreal versus Kyoto — Montreal Wins?

Today’s New York Times has a fascinating story about efforts among the parties to the Montreal Protocol to accelerate the phase-out of HCFCs, chemicals which it turns out not only deplete the ozone layer, but may have a far greater impact on climate change than carbon dioxide emissions. The story references a report published last week under the auspices of the National Academy of Sciences, suggesting that the Montreal Protocol’s ability to restrict and phase-out ozone depleting substances (ODSs) might, at the same time, do substantially more to prevent climate change than the Kyoto Protocol itself. Why? Well ODSs not only deplete the ozone layer, they are also greenhouse gases—as such, the report talks about Montreal as being much more effective than Kyoto is intended to be in cutting emissions of such gasses. If true, the science seems to bolster what most international lawyers already knew—the Montreal Protocol has overcome varied obstacles to become one of the most effective multilateral treaties ever, while the Kyoto Protocol has caused much greater controversy, and met with increasing compliance difficulties among states parties. It also suggests Montreal’s more incremental approach along with common, but differentiated, responsibilities may be a better regulatory framework than Kyoto’s exclusive focus on reducing developed world carbon dioxide emissions. Indeed, there may be a larger lesson here for states when considering what to do after 2012, when Kyoto’s targets are supposed to be complete.

The current debate centers on whether the Montreal Protocol can do even more–continuing or improving on its current trajectory of restoring the ozone layer, while simultaneously limiting further releases of global warming gasses. This is where accelerating an HCFC phase-out has become an issue. The irony is that HCFCs were actually at one point, part of the Montreal Protocol’s success story—HCFCs were industries’ answer to CFCs (a.k.a. freon) which was originally the prime ODS in use. By getting developed and developing states’ industries to switch from using CFCs to HCFCs, substantial progress was made in combating ozone depletion, notwithstanding that HCFCs themselves were still an ODS, albeit with much less of an impact than their CFC cousins. At the same time, however, it turned out that HCFCs while helping with ozone depletion, were a significant source of greenhouse gas emissions, which only compounded the climate change problem.

Since January 2004, developed countries have, in compliance with Article 2F of the Montreal Protocol, begun to phase-out their production and consumption of HCFCs. As is typical under the Montreal Protocol, developing countries have a time lag before similar requirements kick in (unlike the Kyoto Protocol where developing countries have no obligations). Thus, developing countries do not have to limit HCFC production and consumption under Montreal Protocol Article 5(8ter) till 2016 and a full phase-out won’t be required until 2040 (in contrast to the full phase-out date for developed countries of 2020).

Developing countries are reportedly cool to the idea of accelerating their HCFC phase-out. Until 2016, for example, China will be able to continue to grow its air conditioning industry (which uses HCFCs extensively) without any production or consumption limits (although developed country markets for HCFCs should shrink over time given developed states’ obligations to reduce HCFC consumption). But, if HCFC reductions would actually improve the ozone layer AND may outstrip Kyoto’s impact on climate change, is there anyway to convince China and other developing states to revisit their Montreal Protocol commitments?