The Governance Of Ozone Depletion Ii Amending The Montreal Protocol Evaluation and Assessment The Evolution of US Rule Models

Through Montreal, the North-only negotiation rule model structured U.S. interactions in the negotiations. The United States formulated a negotiating position that ignored the South and focused on the EU. The result of this position (through intervening interactions) was the MP. When the United States began the MP negotiations, its rule model matched the normative context—there was a good fit between the two. In the months preceding Montreal, however, the normative political context had begun to change because of Southern practices. Southern states became interested in the issue and, because of UNEP and Tolba, were able to participate. Now interested in the process, however, major Southern states expressed dissatisfaction with the provisions of the MP and refused to sign.

Thus, very quickly after the international community agreed to the MP, U.S. rule models diverged from the normative context. The emerging critical mass of Southern agents altered the intersubjective understanding of who should participate in ozone depletion negotiations. The United States had predicated its negotiating strategies/behaviors on an understanding that ozone depletion required North-only negotiations. The South was not crucial, not interested, and/or likely to accede to the protocol anyway. This U.S. model of the ozone depletion problem had matched the social context until mid-1987, but the social context had changed. In the U.S. evaluation of the MP, this disconnect became clear and the United States joined the cascade of states switching their operating rule from North-only participation to universal participation. Facing a new normative context, the United States altered its understanding of a global response to fit with universal participation.

In 1988-89, the United States underwent a period of assessment and adjustment as a result of the growing gap between the normative context and the original U.S. internal rule model. Domestic political processes were at the forefront of the evaluation of the MP and the evolution of U.S. rule models. The critical players in this period were Congress, the environmental NGO community, and industry. Throughout this period, these groups worked to influence the executive branch, especially the State Department and the EPA. It is difficult (if not impossible) to pinpoint the moment of a discrete shift from North-only thinking to South-North and global participation thoughts, but the shift occurred nonetheless.

The U.S. rule model transformed in this period from: seek Northern cooperation to regulate CFCs; to: seek universal cooperation to regulate CFCs. This shift took place because the understanding of the world inherent in the former rule model no longer fit with the growing, socially constructed, intersubjective understanding that universal participation would be required to address ozone depletion. Thus, the predictions that flowed from the North-only model were faulty. The United States was no longer acting appropriately. The MP did not achieve the goals the United States had set, and the North-only rule model the United States followed was subsequently weakened through negative evaluation. The United States could no longer accurately perceive the world and predict the consequences of actions/interactions with the North-only rule model. Once weakened, the United States discarded the North-only rule model and replaced it with a rule model that drove the United States to secure universal negotiations and cooperation in subsequent negotiations.

Unlike the computer model, where evaluation is entirely straightforward, evaluation in empirical cases is more complicated. The United States underwent a political process to determine if the MP was "good" or not. Part of this assessment was concerned with participation levels, and U.S. concern about a lack of Southern participation highlighted the disconnect between the U.S. rule model and the social context.

The imminence of a rule model change was not evident in the United States in the months immediately following the signing of the MP. In late 1987, the United States was very pleased with the substantive results of the MP; especially the 50 percent reduction in some CFCs. Stephen Seidel claimed that the "EPA thought that the MP was a huge success."124 Congress, which had been keeping constant pressure on the United States, was pleased as well. John Dingell (D-MI) called the agreement "an important step that certainly appears to deserve solid congressional support."125 Industry also welcomed the MP and Du Pont, in particular, praised the international solution in contrast to potential unilateral action, noting, "Global action is the only kind of effective action."126

The elation was not destined to last. Already in October scientists foreshadowed impending disappointment with the MP.127 Then, in March 1988, a mere five months after the MP was signed, the Ozone Trends Panel released definitive evidence of the link between CFCs and ozone depletion.128 This was followed by numerous reports detailing the insufficiency of the protocol's regulations and numerous calls for strengthening the MP.129 As one example, a September 1988 EPA report warned that ozone depletion was more serious than at first assumed and called for an accelerated phaseout: "Nothing short of an immediate halt in the use of chlorofluorocarbons can save the stratospheric ozone layer from further, dangerous depletion."130

The NGO community was also wary of the MP. Though encouraged by the protocol, they complained that the MP did not go far enough and that the loopholes dedicated to the South significantly weakened the agree-ment.131 According to a Friends of the Earth briefing sheet supplied to Congress, "By the time the Protocol came into force (1/1/89) it had become clear that its provisions were inadequate."132 Almost overnight, the MP transformed from a groundbreaking environmental accord, to merely an adequate beginning. It was deemed insufficient in two areas: amount/speed of reductions and participation.

The burgeoning scientific certainty quickly made it clear that the MP would be insufficient to protect the ozone layer with or without Southern participation (and at this point the United States still thought with was likely). Even as the United States prepared to ratify the protocol, the U.S. Senate prepared to consider further, unilateral action, and the EPA began calling for a reassessment and accelerated cutbacks.133 Environmental NGO representatives were even more blunt. David Doniger of the NRDC argued that "[t]here is virtually no chance that the current protocol will be sufficient to solve the problem"134 and the NRDC prepared to force the EPA to take action through the courts once again.135 Even industry joined the calls for further international action, hoping to delay or defeat unilateral measures.136

The insufficiency of the substantive measures was compounded by the lack of Southern signers, and especially troubling were the decisions of China and India to forego signing.137 This caught some observers and participants off guard. Most Northern negotiators thought "the terms were attractive enough to encourage other developing countries to sign onto the document."138 This thinking was a vestige of the U.S. understanding of the ozone problem as one to be dealt with through North-only measures—a rapidly deteriorating vision of a global response for ozone depletion.

The United States, with expectations structured by the now inappropriate North-only operating rule, thought that South-North issues had been finalized with the provisions included in the MP. And in the case that development provisions were not attractive enough, the United States was convinced in late 1987 through early 1988 that the threats of trade restrictions and being left behind technologically would convince the Southern states of the desirability of the MP. John Hoffman (U.S. EPA) at a symposium on the impact of climate change on the third world urged Southern states to ratify the MP. "He said many developing countries are erroneously convinced that ratifying the MP could cost them money. To the contrary . . . 'Not moving can cost you money . . . Hanging onto CFC production will lead to obsolete technology.'"139 At least in the EPA, there was a perception that a technology transition in the North would beget a Southern acquiescence to the MP.140 Yet in September 1988, the Washington Post reported, "The protocol is expected to go into effect . . . but without participation of some developing nations."141

The United States negotiated the MP operating under a rule model (and normative context) that told it that Northern states had control of the problem. The South produced and consumed relatively miniscule amounts of CFCs and Southern production to this point was primarily in joint ventures with Northern companies.142 In 1988-89, however, the ignored or forgotten potential of the South to produce/consume CFCs and thus contribute to the problem became critical. CFC technology is relatively simple and was widely available. In addition, certain Southern states (Brazil, China, India, and perhaps Indonesia) had large enough domestic markets to create a viable CFC industry. Crucially, this potential to contribute to the problem was as evident in 1986 as it was in 1988. However, the importance attached to the Southern potential and the expectation that the South would comply with the MP changed significantly in 1988-89. By 1989, Southern states no longer assumed that ozone was a North-only problem, with the North responsible for devising solutions. The South claimed a voice and demanded to be a part of the decision-making process that promised to alter development paths. Ozone depletion had become global both in terms of scope and required participation.

In essence, then, the United States met its goal of reaching an agreement to curb CFC production, but did not meet its overarching goal of addressing the ozone depletion problem with the MP. New scientific information about ozone depletion made it clear, or persuaded officials, that the MP would not be satisfactory in meeting the larger goal. However, the negative evaluation of the sufficiency of the reductions strengthened U.S. resolve because the United States had been calling for more stringent reductions pre-Montreal. The lack of Southern participation in the MP was a different story. This directly challenged the U.S. rule model calling for North-only negotiations. Ignoring the South was no longer an option, and the evaluation of the MP in the 1988-1990 period significantly weakened the North-only rule. The new intersubjective understanding emerging at the time (global as universal) meant that U.S. behavior, driven by the old rule model, helped produce a governance outcome that did not fit with how states now viewed a global response to ozone depletion. Thus, the MP and the North-only participation rule were both evaluated negatively (punished), and the rule was weakened. Again, Congress, the NGO community, and industry were the important evaluators that served to weaken the rule model and push the United States toward universal participation.

Congress was especially concerned about the lack of Southern participation in the MP process and lack of Southern acceptance of the protocol itself. Congress had been moved to a state of urgency in the ozone depletion issue and was preparing to force the United States to take unilateral action in the late 1980s—action designed to go beyond the MP and reduce CFCs faster than scheduled. They were, however, concerned that production and use of CFCs in the South could negate such efforts.143 John Dingell expressed concern:

[L]ess than 40 countries and the European Economic Community have ratified the Protocol. While they represent 84% of the present global consumption, there are over 80 developing and other countries. Many of them have not ratified, including high-populations and important trading countries like Argentina, Brazil, China, India, Malaysia, and Korea. Without their support as parties, the Protocol may not be as effective as all of us hope.144

These fears were substantiated by an Office of Technology Assessment (OTA) report that showed that "non-participation by a few key developing countries can change the effectiveness of the treaty substantially."145 Industry was concerned with the lack of Southern participation as well. Throughout the 1980s the primary concern of industry was the possibility of U.S. unilateral action. At every step, U.S. industry pushed the United States toward a global response. Before Montreal, this meant a North-only response. After Montreal, industry pushed for a universal global response. Competitive pressures were the crucial drivers of the industry position. In addition, industry advocated universal participation out of a desire to open large markets for CFC substitutes.146 As the Los Angeles Times reported:

Du Pont hopes to beat its competition to the huge markets being created by the worldwide effort to eliminate the use of CFCs and other chlorine-containing chemicals believed to be depleting the Earth's protective ozone layer.147

The chemical companies wanted a globally level playing field, and as global was coming to mean worldwide in the ozone case, industry began pushing for universal participation as well. The U.S. chemical industry, throughout 1988 and 1989, consistently advocated global solutions. For instance, Dow Chemical urged worldwide participation before a Congressional hearing,148 and all three of the top U.S. CFC producers (Du Pont, Allied Signal, and Pennewalt Corp.) pushed for accelerated international action after the MP was signed and as the science became more certain.149 As global came to mean universal, industry began advocating universal participation.

The environmental NGO community, with a different motivation, desired the same end as industry—a worldwide phaseout of CFCs. NGOs had been concerned with loopholes for Southern nations in the MP, but their real concern was the insufficiency of the reductions. Rafe Pomerance of the World Resources Institute was already convinced in March 1988, that "the Montreal Protocol will have to be strengthened and will have to be strengthened soon."150 Additionally, on the eve of the treaty's entry into force, Liz Cook of the Friends of the Earth, noted that "the challenge remains to toughen up the controls and increase participation in the treaty."151

U.S. executive branch agencies were not immune to these evaluations in addition to their own internal evaluations. They quickly came to the conclusion that universal participation was necessary as well. By early 1990, the EPA was convinced that "[s]tratospheric ozone protection is a global issue that demands a global response and global cooperation."152 The State Department concurred and urged Congress to delay unilateral action. The State Department assured Congress that global participation, and especially the cooperation of the South, was a major foreign policy goal in the wake of the MP.153 Of course, as noted above, ozone depletion had always required a "global response." In 1990, however, the nature of the global response was much different.

Each group's evaluation of the MP was based on different priorities. The environmental NGO community was concerned with environmental protection. For them, any ozone depletion was too much and thus the South was a concern even though they produced/consumed relatively small amounts of CFCs. Industry was obviously concerned about competitiveness. Congress was concerned about both issues. The evaluations from all corners saw Southern participation as crucial for meeting their groups' goals. The United States learned about appropriate participation throughout the evaluation process.

The North-only participation rule, which shaped all that the United States had done with ozone depletion through the MP, was significantly weakened by these evaluations. Actors with different goals and motivations all pushed change in the U.S. rule model—they all advocated universal participation. The North-only rule had driven U.S. behavior in the negotiations of a landmark agreement, but the MP was a landmark only as a bare beginning in the fight against ozone depletion—it was not sufficient to win the fight. With the participation rule weakened by negative evaluation, the United States shifted to a universal participation rule. In the negotiations of 1989-90 designed to amend the MP, the United States focused on South-North issues and explored answers to Dingell's challenge:

Unfortunately, the concessions to the developing countries which are included in the Protocol have not yet enticed them to ratify. . . . I want to learn today what more, if anything can be done to encourage broader global participation.154

By 1989, the United States defined the ozone problem as one requiring universal participation. However, the above sounds like a very rational story. The evaluations of the MP all called for more Southern involvement for goal-oriented reasons. The United States updated its beliefs/strategies to try and achieve its goals. It is clear that the United States was goal-seeking when it altered its position to focus on Southern participation in the 1988-1990 period. It appears at first glance that the transition in U.S. thinking would be best characterized as a rational updating of strategies/ beliefs in light of new scientific information or new understanding of economic interests. The United States wanted to solve the ozone depletion problem, and a commitment to North-only participation did not facilitate the accomplishment of this goal.155 Universal participation was therefore the obvious choice—involve the South in negotiations and actions toward a solution. Science and the global scope of the problem would seem to be the best determinants of the transition in U.S. thinking.

However, close scrutiny reveals that the rational updating explanation falls short. First, instrumental acceptance of universal participation does not diminish the influence of the nascent norm for universal participation. As Risse et al. have argued, instrumental acceptance of a norm is often the first step in socialization to a normative context.156 In addition, the "instrumental" acceptance can also be seen as adapting to a new context. The U.S. understanding no longer fit with the prevailing notions of appropriateness and so U.S. understandings had to change.157 Without the appropriate understanding of the foundations of the governance of ozone depletion, the United States could not hope to actively or effectively participate in the governance of ozone depletion.

Second, the change in U.S. definitions of ozone depletion still relied on the existence of a nascent norm requiring universal participation. The United States did not calculate from a number of potential options that committing to universal participation was the way to maximize its utility. Instead, the United States committed to universal participation because that requirement had come to pervade the normative political context. Multiple actors with widely varying motivations all arrived at the same conclusion—a global response to ozone depletion required universal participation.

When the United States deemed North-only negotiations to be insufficient, it immediately drew upon the understanding already embedded in the normative context. The United States (as well as those actors evaluating U.S. actions—Congress, industry, NGOs) learned that universal participation was the appropriate level of participation from its normative context. This was a coevolutionary process whereby the social context, altered by the critical mass of participating Southern states, contained new understand-ings—a new niche for the United States to fill.

No options beyond universal participation were considered, though plausible alternatives are imaginable with hindsight. When the science of ozone depletion became more certain and the consequences better understood, it was taken as natural for the United States and other Northern states to pursue universal participation and extend the ozone agreement to the Southern states to eliminate future damage to the ozone layer. Crucially, however, rather than pursuing universal participation, the United States could have stayed the course of the MP provisions or it could have advocated limited Southern participation; either choice may have been a more effective way to meet its goals.

CFC production was restricted to seventeen companies in 1989.158 The possibility of being left behind technologically should have been (and might have eventually been) a powerful incentive for Southern states to join the MP process—regardless of whether the United States and other Northern states really dealt with development concerns. It is not clear that the Southern states had as much bargaining leverage as they are usually credited with and it is certainly not clear that the trade restrictions in the MP would not have eventually brought the South on board anyway. In fact, as noted above, this was the thinking at the EPA in the immediate aftermath of the MP negotiations. The North controlled virtually all of the production of CFCs, and only a select few Southern states had sufficient domestic markets to initiate a viable CFC industry. The only states that had real leverage over the United States and the North were China, India, Brazil, and perhaps Indonesia and Malaysia. But these states were loath to fall behind technologically.159 Even Mostafa Tolba downplayed the threat of a Southern CFC industry. He responded to concerns with Southern loopholes in the MP by arguing, "None of them is going to establish new facilities that are doomed."160 It might have been a rational choice to retain a North-only vision of the ozone depletion problem and let the trade sanctions and fear of technological obsolescence "force" the South to comply with the MP.

A second option would have been to just work to involve the large Southern states that did have some bargaining leverage. It could have been perfectly plausible to entice China, India, and Brazil to agree to the MP and join the process. The large Southern states were the main concern—as noted in the OTA report referenced above. In addition, accord-

ing to Irving Mintzer of the World Resources Institute, "if just four developing countries—China, India, Indonesia, and Brazil—increase their domestic consumption of CFCs to the levels allowed by the protocol, CFC production on a worldwide basis would double from the 1986 base level."161 Dealing with just these states, the ones with real leverage, likely would have been less expensive for the United States in terms of necessary development concessions and perhaps would have been more efficient, avoiding the noted problems with large negotiations.162

Neither of those potential alternatives to universal participation was considered by the United States or other states. In the first case, the negative evaluations of the MP, driven by an increased sense of urgency, made staying the course very unlikely. In the second case, a small extension of the negotiations to include just China, India, and Brazil obviously did not occur. Neither the United States nor China and India entertained the idea of separate provisions for specific Southern states.163 Perhaps more importantly, it would not have mattered if the United States had considered these additional options—the normative context was such that universal participation was the only viable option.

These alternatives were not considered because once its original definition of the ozone depletion problem was weakened, the United States came to understand the problem as universal—it came to accept the current intersubjective understanding of the problem. The international community had already instantiated the appropriateness of a requirement for universal participation, thus constraining possible choices for U.S. definitions/strategies. In addition to the growing interest of Southern states, the norm was also already enshrined at UNEP and Tolba still controlled the agenda—the new definition of global was ensconced in the structure of the negotiations:

[I]t is clear that the protection of the ozone layer will require a full partnership between developed countries that have caused the problem and those in developing countries who would now like to improve their standard of living by using these chemicals for uses such as refrigeration.164

Further, the universal participation norm was already embedded within the working group charged with developing the financial mechanisms for the protocol amendment. Their report claimed that "for the Protocol to be fully effective . . . all countries must become parties or comply with the control measures specified by the Montreal Protocol."165

Because the U.S. transition to the new definition for the ozone depletion problem was constrained, it appeared to be seamless and thus gave the impression of a rational updating. The U.S. participants in the ozone negotiations interviewed recall the drive for Southern participation as an extension of existing policy, rather than a radical change in policy.166 This is not that surprising precisely because the rule model change was not discontinuous (though the simplified model discusses it as if it were). Dual goals drove U.S. policy in the ozone negotiations: (1) industrial competitiveness, and (2) reductions of CFCs. When the South refused to sign the MP, the United States changed its focus given those overriding goals. Crucially, U.S. options for a change in focus were heavily constrained—the options were structured by the transition in what a global response entailed. The ozone negotiations were on a path circumscribed by the emerging intersubjective consensus that ozone depletion required universal participation. The new norm, initiated by Tolba/UNEP and strengthened by Southern actions, taught the United States what was appropriate and thus structured the South-North bargaining that would subsequently take place. The effortlessness of the change to the new South-North bargaining focus was predicated on a new understanding of appropriate levels of participation.167

By mid-1989, it was no longer possible for any state to define the ozone problem as anything but a problem requiring universal participation. The array of choices open to the United States was constrained by the transformed intersubjective understanding of the problem as univer-sal—an understanding that was reinforced by its (or agents within it) own evaluation of the protocol. The United States made a normative choice determined/constrained by the emergent norm for universal participation, and actively worked for universal participation in the negotiations designed to amend the MP.168

When the United States evaluated the MP (via numerous actors), the conclusion that it reached was that the MP was insufficient to protect the ozone layer. This was an implicit indictment of the North-only participation rule that defined the ozone depletion problem for the United States throughout the MP negotiations. Following an operating rule that defined ozone depletion as a Northern problem led to an outcome that did not meet the U.S. goal of protecting the ozone layer. This weakened that rule. The question then became, what should the United States do? What should its operating rule be? How should it define the ozone depletion problem? There was no social complexity associated with these questions. Tolba and UNEP, by convincing a number of Southern states to participate, had lowered the social complexity surrounding participation issues in ozone depletion to such a degree that there was only one way to define the ozone depletion problem—as a problem requiring universal participation. In addition, the crisis that emerged when the ozone depletion-CFC link was proved and Southern states refused to accede to the MP, further clarified the appropriateness of the nascent universal participation norm. Universal participation became the only choice possible for addressing ozone depletion, and the United States joined the cascade of nations accepting the new norm.

The specific transition that occurred in U.S. understandings of ozone depletion was norm driven—a normative choice shaped and constrained by the emerging intersubjective understanding of the ozone problem as requiring universal participation. Though other alternatives might have made the United States "better off," the United States made the choice that it had to make. Thus, the United States had a different view of the ozone depletion problem as it engaged in the negotiations to amend the MP.

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