International environmental law - Montreal Protocol - U.S. Constitution - nondelegation doctrine

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Author: John H. Knox
Date: Apr. 2007
From: American Journal of International Law(Vol. 101, Issue 2)
Publisher: Cambridge University Press
Document Type: Article
Length: 3,845 words
Lexile Measure: 1680L

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NATURAL RESOURCES DEFENSE COUNCIL V. ENVIRONMENTAL PROTECTION AGENCY. 464 F.3d 1. United States Court of Appeals for the District of Columbia Circuit, August 29, 2006.

In Natural Resources Defense Council v. Environmental Protection Agency, (1) the U.S. Court of Appeals for the District of Columbia Circuit held that certain decisions of the parties acting under the international legal regime to protect the ozone layer are not "law" with which EPA must comply under the Clean Air Act. In dicta, the court suggested that holding the decisions to be "'law' would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers" (p. 9).

The purpose of the international ozone regime--in particular, the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances That Deplete the Ozone Layer--is to protect stratospheric ozone, which intercepts harmful ultraviolet radiation from the sun. Unlike oxygen ([O.sub.2]), ozone ([O.sub.3]) is unstable: when a chlorine or bromine compound reaches the stratosphere, it sets off chemical chain reactions that destroy thousands of ozone molecules. As industrial production of such compounds has increased, stratospheric ozone has been depleted, allowing more ultraviolet radiation to reach the Earth, where it causes skin cancer and cataracts, reduces agricultural productivity, and harms the environment. The ozone regime reduces ozone-depleting substances (ODS) in the stratosphere by phasing out their production. (2) Most commentators see the regime as the most successful in international environmental law: ODS in the stratosphere are projected to return to 1979-80 levels by the mid-2040s. (3)

The success of the regime has depended largely on the ability of its parties to oversee and strengthen its provisions through legally binding decisions. The first agreement on the ozone layer, the 1985 Vienna Convention, (4) did little more than provide a framework for continuing negotiation. Even the 1987 Montreal Protocol, which obligated parties for the first time to reduce production of ODS, addressed only two types (chlorofluorocarbons and halons) and did not require the elimination of either. (5) But the Convention and Protocol authorized parties to add new chemicals to the list of controlled substances and to tighten restrictions on chemicals once added. The agreements also provided for a large array of compliance mechanisms: sticks (bans on trade with nonparties and sanctions against noncomplying parties); carrots (financial and technical assistance to developing countries); and, most relevantly to this case report, exceptions for essential uses. Most of these mechanisms are flexible, and the regime contemplates an active, ongoing role for the parties in deciding when and how to employ sanctions, provide assistance, and allow exceptions.

The legal basis for this role varies from function to function. Bringing new substances under the regime--the most consequential decision--requires the parties first to agree by a two-thirds vote to amend the Protocol, and then to ratify or otherwise formally accept the amendment. These amendments bind only those parties that accept them. (6) After an ODS is within the scope of the Protocol,...

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Gale Document Number: GALE|A168132368