The United States may finally ratify the Kigali Amendment—with potential implementing legislation already underway.
Hydrofluorocarbons, an alternative to the ozone-depleting substances that damage the Earth’s protective ozone layer, are potent greenhouse gases that exacerbate climate change. These chemicals are scheduled for reduction under international law: the Kigali Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer. Will the United States join the majority of U.N. Member States in committing to phasing down its hydrofluorocarbon production and consumption in accordance with international law in a Biden administration?
Hydrofluorocarbons, an alternative to the ozone-depleting substances that damage the Earth’s protective ozone layer, are potent greenhouse gases that exacerbate climate change. These chemicals are scheduled for reduction under international law: the Kigali Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer. Will the United States join the majority of U.N. Member States in committing to phasing down its hydrofluorocarbon production and consumption in accordance with international law in a Biden administration?
Background on the Kigali Amendment
Ozone-depleting substances (ODS) are chemicals that damage the stratospheric ozone layer, the shield protecting Earth from lethal levels of ultraviolet sunlight.[1] Many ODS are used in refrigeration, air conditioning, and foam.[2] To regulate the production and consumption of ODS, the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) was established in 1987 and has since been adopted by all 197 U.N. Member States.[3] The Montreal Protocol led to the successful phasing out of potent ODS like chlorofluorocarbons (CFCs), but other chemicals have replaced CFCs, including hydrofluorocarbons (HFCs).[4] Although HFCs do not reduce stratospheric ozone, they threaten to accelerate climate change because their global warming potential (GWP) is large—thousands of times higher than that of carbon dioxide.[5] The U.N. Environment Programme (UNEP) reports that “[o]verall HFC emissions are growing at a rate of 8% per year and annual emissions are projected to rise to 7-19% of global CO2 emissions by 2050,” thereby frustrating efforts to curb global temperature rise.[6] Accordingly, UNEP stresses that “[u]rgent action on HFCs is needed to protect the climate system.”[7]
Responding to the climatic threat posed by HFCs, the parties to the Montreal Protocol adopted the Kigali Amendment in 2016 to mandate a global phasedown of HFCs.[8] These reductions will help to “avoid up to 0.5 degree Celsius of global temperature rise by 2100 . . . the single largest contribution the world has made towards keeping the global temperature rise ‘well below’ 2 degrees Celsius, a target agreed at the Paris climate conference.”[9] The Kigali Amendment, which entered into force in 2019 and currently has 110 out of 198 ratifications,[10] is a culmination of years of countries’ efforts—including the United States—to reach a global consensus on HFC phasedown.[11] For instance, the United States, along with Mexico and Canada, had proposed an amendment calling for the global phasedown of HFCs in 2015.[12] But since the Trump administration came into power, the United States has ceased supporting the Kigali Amendment. As of the date of this writing, the United States has not yet ratified the Kigali Amendment even though “[g]lobal stakeholders endorsed adoption of the Kigali amendment, including most of the major U.S. companies working in related sectors.”[13]
The amendment to the American Energy Innovation Act
In the absence of action from President Trump, whose signature is required to ratify the Kigali Amendment, the Senate is pushing forward legislation that would effectively implement the unratified Kigali Amendment in U.S. law.[14] On September 10, 2020, “U.S. Senator Tom Carper (D-Del.), top Democrat on the Senate Environment and Public Works Committee (EPW), along with Chairman John Barrasso (R-Wyo.) and Senator John Kennedy (R-La.) announced a bipartisan agreement on changes to a hydrofluorocarbons (HFCs) amendment to S. 2657, American Energy Innovation Act,” which reflects the standards for phasing down HFCs set out in the Kigali Amendment.[15] Specifically, the revised amendment “will authorize a 15-year phasedown of HFCs at a national level for the first time,” requiring “EPA to implement an 85 percent phase down of the production and consumption of HFCs, so they reach approximately 15 percent of their 2011-2013 average annual levels by 2036.”[16] Additionally, the revised amendment is aimed at ensuring sufficient supplies of HFCs for uses that have no substitute chemicals; maintaining federal regulation of those uses for at least five years; preventing the accelerated phasedown timeline from outpacing technological capacity; and maintaining the phase-down of HFCs to reduce global warming and create 150,000 U.S. jobs in HFC alternative manufacturing.[17] The bipartisan agreement on the revised amendment brings Congress one step closer to establishing the legal framework for a nationwide phasedown of HFCs in line with international standards.
Projected regulation of HFCs under the Biden Administration
Even with supportive action from Congress, the President’s signature or equivalent will be necessary to pass the amended American Energy Innovation Act or ratify the Kigali Amendment—or both, giving the United States domestic and international legal obligations to phase down HFCs. If President-elect Joe Biden signs and ratifies the Kigali Amendment (with the requisite advice and consent of two-thirds of the Senate), the American Energy Innovation Act could serve as its implementing legislation. A Republican majority in the Senate in 2021 is unlikely to hinder passage of HFC laws given the American Energy Innovation Act is making progress in the currently Republican Senate as a bipartisan bill.
But ratification is only the first step: dramatically reducing HFC emissions will also require strict enforcement to reach phasedown targets. With the passage of the Kigali Amendment, like most every provision of the Montreal Protocol, came a black market for the regulated substance, in this case HFCs. HFC smuggling is already prevalent in the European Union.[18] To effectively curb the illicit trade in HFCs, American law enforcement must be vigilant about HFC smuggling into and out of the United States, and strict in punishing it.
If Biden’s campaign promises for climate and environmental action prove true,[19] Biden will pick up where Obama left off in 2016 by signing legislation mandating an HFC phasedown, be it the Kigali Amendment or the amended American Energy Innovation Act, or both. Doing so will create the legal framework in which law enforcement can curb illegal HFC production and consumption to keep the country on track toward achieving its HFC phasedown commitments. Though irreparably late, the United States has an opportunity to transition from four years of insufficiently checked HFC emissions to a robust HFC phasedown regime, setting an example of effective HFC regulation for the world to follow in pursuit of a climate-change-resilient future.
[1] About Montreal Protocol, U.N. Environment Programme (last visited Nov. 13, 2020), https://www.unenvironment.org/ozonaction/who-we-are/about-montreal-protocol [https://perma.cc/D62A-HUJ2].
2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] All ratifications, U.N. Environment Programme (2020), https://ozone.unep.org/all-ratifications [https://perma.cc/NBJ6-2JAD].
[11] See The Kigali Amendment (2016): The amendment to the Montreal Protocol agreed by the Twenty-Eighth Meeting of the Parties (Kigali, 10-15 October 2016), https://ozone.unep.org/treaties/montreal-protocol/amendments/kigali-amendment-2016-amendment-montreal-protocol-agreed [https://perma.cc/XL54-RN9B].
[12] See U.N. Environment Programme, Proposed amendments to the Montreal Protocol, U.N. Doc. UNEP/OzL.Pro.27/5 (Aug. 20, 2015), https://ozone.unep.org/sites/default/files/2019-08/MOP-27-5E.pdf.
[13] See The Montreal Protocol on Substances That Deplete the Ozone Layer, U.S. Dep’t of State (Feb. 11, 2019), https://www.state.gov/key-topics-office-of-environmental-quality-and-transboundary-issues/the-montreal-protocol-on-substances-that-deplete-the-ozone-layer/ [https://perma.cc/GD53-6VGM].
[14] Carper, Barrasso, and Kennedy Announce Agreement on HFCs Amendment to Energy Bill, U.S. Senate Committee on Environment and Public Works (Sept. 10, 2020), https://www.epw.senate.gov/public/index.cfm/2020/9/carper-barrasso-and-kennedy-announce-agreement-on-hfcs-amendment-to-energy-bill [https://perma.cc/B2MA-Y7UB].
[15] Id.
[16] Id.
[17] Id.
[18] See generally, Illegal Trade in Refrigerants, Environmental Investigation Agency UK (2020), https://eia-international.org/climate/illegal-trade-in-refrigerants/ [https://perma.cc/7JLV-MEZF].
[19] The Biden Plan for a Clean Energy Revolution and Environmental Justice, Biden Harris (2020), https://joebiden.com/climate-plan/ [https://perma.cc/H93B-QF32].
15 January 2021
georgetown law
