COP-4: Beyond the Dirty Dozen

On May 9, at the conclusion of the Fourth Conference of the Parties (COP-4) to the Stockholm Convention, negotiators from around the world agreed to add nine chemicals to the list of persistent organic pollutants (POPs) that are too dangerous for international trade. It was an important step toward protecting the world community from toxic exposures, but it unfortunately highlights our country's inability to take a leading role in international environmental law.

How it works

In 2001, representatives of nations from across the globe met in Stockholm to negotiate a treaty that would eliminate the production, distribution, and use of the most dangerous chemicals in the world marketplace. They originally agreed to phase out DDT, PCBs, and ten other substances known as the “dirty dozen” because of their high toxicity, ability travel great distances in air or water, and tendency to bioaccumulate in the food chain.

Recognizing that the dirty dozen were just a starting point, the negotiators included in the treaty a mechanism for listing new chemicals. Upon nomination by a signatory party, the chemical is referred to the POPs Review Committee, which is responsible for undertaking a risk assessment to inform a recommendation about whether to list the chemical and under what conditions. After getting the Review Committee’s recommendation, signatory parties decide on whether to list the new chemical. The parties aspire to consensus agreements about new listings, but a two-thirds majority is sufficient.

On May 9, by consensus, eight chemicals were added to Annex A (setting them up for a complete ban), and one was added to Annex B (meaning countries will limit its production and use, but not ban it). To Annex A: chlordecone, hexabromobiphenyl, lindane, alpha hexachlorocyclohexane, beta hexachlorocyclohexane, pentachlorobenzene, hexabromodiphenyl ether/ heptabromodiphenyl ether, and tetrabromodiphenyl ether/pentabromodiphenyl ether. To Annex B: perfluorooctane sulfonic acid (PFOS), its salts, and perfluorooctane sulfonyl fluoride. (Details are in their press release.)

History of US involvement

The U.S. delegation under the Clinton Administration was intimately involved in negotiating the POPs treaty, and George W. Bush signed the treaty shortly after taking office. But the U.S. Senate has yet to take the necessary steps of ratifying the treaty and amending U.S. law to make the treaty work.

Several Senators have introduced bills to accomplish those goals, but the legislation has stalled amidst infighting over the usual issues related to toxics regulation (cost-benefit analysis, risk standards, etc.). And strangely, not long after Bush signed the treaty, Department of Justice came up with a bit of tortured logic to undermine the President’s decision to sign the treaty. In a memo to Senator Tom Harkin, DOJ argued that Congress would violate the Constitution’s separation-of-powers doctrine by enforcing the treaty’s requirement that signatory nations engage in public notice-and-comment when they consider adding new chemicals to the treaty. In DOJ’s view, requiring the President to ask for the public’s comments infringed on the President’s exclusive constitutional power to negotiate treaties. DOJ’s arguments were refuted by the Congressional Research Service, Center for International Environmental Law, and other legal scholars.

In March, Senators Harkin and Saxby Chambliss re-introduced legislation to amend FIFRA to make U.S. law conform with the POPs Convention, but no action has been taken on the bill. And even if it were to move, it would only solve part of the problem because the Senate still needs to ratify the treaty and amend the Toxic Substances Control Act, too. So at the COP-4 meeting, like all previous meetings, the U.S. delegation sat on the sidelines, as observers. That’s not to say that the United States didn’t have a voice in the negotiations -- U.S. manufacturers were powerful advocates for ensuring PFOS was listed in Annex B instead of Annex A. The chemical is used widely in semiconductor manufacturing, firefighting foam, and even medical devices. The manufacturers argue that they do not yet have adequate alternatives for many applications, so they were very worried about being listed in Annex A (Story at BNA, subscription req’d. ). Even without direct involvement, the U.S. delegation can always find allies who are parties to the Convention and are willing to voice American concerns. (Check out Mark Schapiro’s Exposed for a bizarre story about a State Department official in a previous COP meeting resorting to relying on a delegate from the Congo.)

Why it matters

Often, the chemicals listed under the POPs convention are not produced anymore or are of very limited us in the United States, but there are huge stockpiles of the chemicals or they are still used in developing countries. Parties to the POPs convention not only agree to eliminate the production, distribution, and use of chemicals, they also agree to share the costs of removing them from international trade. It’s important that the United States ratify the POPs treaty and become full partner in its implementation. After all, has American manufacturers have enjoyed at least their fair share of the profits from making these chemicals and distributing them around the world, so now that the world community has agreed the chemicals need to be phased out, we should be taking part in ensuring proper disposal.