CIEL: D.C. Circuit establishes dangerous precedent in upholding U.S. Environmental Protection Agency's critical use exemption rule for methyl bromide

On August 29, 2006 a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit denied a petition by the Natural Resources Defense Council (NRDC) to review EPA's 2004 rule implementing critical use exemptions for methyl bromide under the Montreal Protocol on Substances that Deplete the Ozone Layer. The Montreal Protocol, a global treaty to protect the ozone layer, was ratified by the United States in 1988. Methyl bromide is an agricultural pesticide that is scheduled for a mandatory phase-out under the Protocol. The Protocol bans methyl bromide unless Parties collectively agree to limited exemptions to the ban when there are no feasible alternatives to its use. The U.S. Clean Air Act requires EPA to phase out methyl bromide in accordance with the schedule established under the Protocol; the Act allows EPA to exempt critical uses from the ban only "to the extent consistent with the Montreal Protocol."

NRDC's petition claimed that EPA's 2004 critical use rule was unlawful because it failed to adhere to requirements established under U.S.-supported consensus decisions of the Parties to the Montreal Protocol. The court dismissed NRDC's petition on its merits by concluding that consensus decisions on critical use exemptions by governments party to the Montreal Protocol are the results of "agreements to agree" that would not "usually" be enforceable if they were ordinary contracts between private parties. Because they might not be enforceable if they were private law contracts, reasoned the court, the Parties' decisions must not be enforceable in U.S. courts. Instead, they must represent "international political commitments" that cannot be considered among the mandates to EPA incorporated into U.S. law by Congress under the 1990 Clean Air Act Amendments.

The court bases its holding on a flawed application of private contract law rather than relevant tenets of public international law and the Clean Air Act. This holding and the numerous conclusory statements in the court's opinion seriously threaten the ability of the United States to honor its current or future international commitments concerning protection of the ozone layer, climate warming, human rights, and other global challenges. For example, critical use exemptions which provide the only exception under the Montreal Protocol to the obligation of the United States to phase-out completely its methyl bromide production and consumption were a crucial part of the political deal that made international agreement on methyl bromide possible. That's why Congress included those exemptions in the Clean Air Act Amendments, while allowing EPA to grant them only to the extent they are "consistent with the Montreal Protocol." However, the court states that consensus decisions of Montreal Protocol Parties that allow critical use exemptions cannot be considered to be part of the Protocol, and EPA thus cannot be required to adhere to those consensus decisions. The court's reasoning logically means that EPA has no legal authority under the Clean Air Act to allow any critical use exemptions for methyl bromide. Eliminating critical use exemptions would unravel the carefully negotiated approach that governments worldwide have taken under the Montreal Protocol to deal with the ozone-destroying properties of methyl bromide.

CIEL does not believe it was the intent of Congress in adopting the Clean Air Act Amendments to create this result, and we do not agree that the Montreal Protocol, the Clean Air Act, or the U.S. Constitution require it. CIEL is actively exploring options to assist NRDC and other interested parties in ensuring that this ruling of the D.C. Circuit does not stand.