Peter M. Grabiel Institute for Governance & Sustainable Development (IGSD)

1. Legal Analysis: Regulating N2O under theVienna Convention for the Protection of the Ozone Layer and/or Montreal Protocol on Substances that Deplete the Ozone Layer Peter M. Grabiel Institute for Governance & Sustainable Development (IGSD)

2. Can the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) or another Protocol to the Vienna Convention for the Protection of the Ozone Layer (Ozone Convention) Regulate N2O? Short Answer: Yes

3. Parties to both Treaties have an Obligation to Regulate Ozone-Depleting Substances (ODSs) • Article 2 of the Ozone Convention Sets Forth the General Obligations of the Parties.

4. Ozone Convention Article 2(1) • The Parties shall take appropriate measures in accordance with the provisions of this Convention and of those protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer. (emphasis added)

5. Ozone Convention Article 2(2)(b) To this end the Parties shall, in accordance with the means at their disposal and their capabilities: ... (b) Adopt appropriate legislative or administrative measures and co-operate in harmonizing appropriate policies to control, limit, reduce or prevent human activities under their jurisdiction or control should it be found that these activities have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer... (emphasis added)

6. Neither the Ozone Convention nor the Montreal Protocol Define “Ozone-Depleting Substance” • Ozone Convention Article 1(1):“The ozone layer” means the layer of atmospheric ozone above the planetary boundary layer. • Any substance whose emission causes adverse effects to the “ozone layer” can (and should) be regulate by the Parties to the Ozone Convention.

7. N2O is an ODS • Emissions of N2O indirectly cause depletion of the ozone layer and, therefore, N2O can be characterized as an ozone-depleting substance (ODS). • An accurate ozone-depleting potential (ODP) for N2O has been established. • On an ODP-weighted basis, N2O emissions pose the greatest threat to the recovery of the global ozone layer. • The Parties have known N2O is an ODS since the Ozone Convention was first introduced in 1985 and included N2O in Annex I to Article 3 – Research and Systematic Observations.

8. The Purpose, Obligations and Definitions of the Ozone Convention Mean It can Regulate Any ODS • Activities that produce N2O emissions fall within the scope and General Obligations of the Ozone Convention because they “have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer.” • As such, N2O can be regulated under the Montreal Protocol or another protocol to the Ozone Convention.

9. How can the Ozone Convention Regulate N2O? There are two ways: (1) By adopting a new protocol under Article 8 of the Ozone Convention; or (2) By amending the Montreal Protocol to include N2O.

10. The Montreal Protocol can be Amended to Regulate N2O • Nothing in the Montreal Protocol would place any limit on the treaty’s ability to regulate any ODS—including N2O. • The proposed HFC Amendments demonstrate the flexibility of Montreal Protocol by incorporating an efficiency requirement for HCFC-22 production in order to limit HFC-23 emissions. • Article 1(3) of the Ozone Convention: “Alternative technologies or equipment” means technologies or equipment the use of which makes it possible to reduce or effectively eliminate emissions of substances which have or are likely to have adverse effects on the ozone layer. • Emissions-focused efficiency measures requiring the implementation of alternative technologies and equipment may be necessary to reduce N2O emissions in some sectors.

11. Impact on the United Nations Framework Convention on Climate Change (UNFCCC) • UNFCCC does not mention N2O by name (or any GHG other than CO2). • Regulating N2O under the Ozone Convention and/or Montreal Protocol is consistent with the ultimate objective (Article 2) and principles (Article 3) of the UNFCCC. • Regulating N2O will have a minimal but manageable impact of the “soft” reporting requirements (Article 4) established in the UNFCCC which only apply to “greenhouse gases not controlled by the Montreal Protocol”. • The Montreal Protocol has more robust reporting requirements than the UNFCCC. It can add additional emissions reporting requirements and provisions requiring cooperation with the UNFCCC to ensure Parties have the information they need.

12. The UNFCCC Envisions Cooperation with Other International Institutions to Combat Climate Change • UNFCCC Article 7(2)(l): To this end, [the Conference of the Parties] shall: … Seek and utilize, where appropriate, the services and cooperation of, and information provided by, competent international organizations and intergovernmental and non- governmental bodies … (emphasis added) • Precedent for implementing the cooperation and coordination envisioned in UNFCCC Article 7(2)(l) is already established under Kyoto Protocol Article 2(2) which delegates responsibility for pursuing GHG emission limitations or reductions from aviation and shipping to the International Civil Aviation Organization (ICAO) and International Maritime Organization (IMO).

13. Impact on the Kyoto Protocol • N2O is currently included in the basket of GHGs in Annex A and subject to emission limitations and reductions under Annex B (industrialized countries only). • Regulating N2O under the Ozone Convention and/or Montreal Protocol will affect reporting requirements under Article 7 and other “soft” requirements under the Kyoto Protocol that only include “greenhouse gases not controlled by the Montreal Protocol”. • N2O would most likely remain in the Kyoto basket and, unless otherwise stipulated, N2O emission reductions achieved pursuant to obligations under the Ozone Convention and/or Montreal Protocol would count toward Kyoto commitments.

14. Limiting the Impact on the Kyoto Protocol • Enabling provisions under the UNFCCC can eliminate the limited effects that regulating N2O under the Ozone Convention and/or Montreal Protocol will have on Article 7 reporting requirements and other “soft” requirements. • An example of such a provision relating to HFCs has already been submitted to the UNFCCC by the European Union. • Independent or in conjunction with the enabling provisions under the UNFCCC, provisions can also be included within a new protocol to the Ozone Convention or the amendment to the Montreal Protocol regulating N2O that mitigate the impact on the Kyoto Protocol. • An example of such a provision is included in both the FSM and NA proposed amendments to regulate HFCs under the Montreal Protocol.