Academic journal article Duke Environmental Law & Policy Forum

Defining the Legal and Policy Framework to Stop the Dumping of Environmentally Harmful Products

Academic journal article Duke Environmental Law & Policy Forum

Defining the Legal and Policy Framework to Stop the Dumping of Environmentally Harmful Products

Article excerpt

INTRODUCTION

Law textbooks are replete with examples of cases in which legally deployable technology has been identified as posing unacceptable environmental harm and eventually outlawed. Typically, regulations start in one or more developed countries and spread first to other developed countries and then to developing countries. Only recently have large numbers of developed and developing countries acted almost simultaneously to avoid environmental risks, most notably through the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol). (1) The Montreal Protocol is now the only United Nations (UN) treaty with universal membership and adherence-every UN State is a Party and every Party is usually in full compliance. (2) Approval of the Protocol means that national governments agree to future deadlines to phase out products harmful to the stratospheric ozone layer, which are also harmful to climate. (1) At any given time, a large number of environmentally unacceptable products and practices are legal in some countries while their governments struggle to overcome stakeholder opposition in order to enact regulations and incentives to transform markets. (4)

Environmentally harmful product dumping (hereinafter referred to as "environmental dumping") is a practice historically associated with the export of hazardous product waste and associated unwanted chemicals from a developed country for irresponsible and often illegal disposal in a developing country. (5) This historical dumping of hazardous waste and chemicals was possible because developing countries did not always: 1) know what was being imported, 2) know what the hazards were, 3) have the enforcement structure in place to apprehend and halt imports, or 4) possess the political consensus or necessary good will to look out for their own national interests.

Growth in economic activity and global trade corresponded with expanded and intensified environmental dumping. (6) Dumping caused harm to product consumers, national health and prosperity, and the global environment. (7) It has also had negative impacts on the receiving jurisdiction's ability to fulfill international treaty obligations. (8) Fortunately, global agreements like the Basel Convention on Transboundary Movement of Hazardous Waste (Basel Convention) and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals & Pesticides in International Trade (Rotterdam Convention) have reduced some kinds of waste from the historical situations that first brought attention to the problem. (9)

With the industrialization and globalization of China and other developing countries, environmental dumping can involve products made with or containing ozone-depleting and climate-forcing chemical substances and/or products requiring unnecessarily high energy consumption that are not in the interest of the consumer, the local economy, or the global commons. (10) Such trade can involve both developing and developed countries as origin and destination including: developed to developing (North-South), developing-to-developed (South-North), and developing-to-developing (South-South). (11)

The Montreal Protocol sets different schedules for developed and developing countries to phaseout ozone-depleting substances (ODSs) and phase down hydrofluorocarbons (HFCs). (12) Developed countries have a faster phasedown schedule and bear the burden of research, development, commercialization, and sorting out which replacement technology is superior. (13) Following a "grace period", the slower phasedown schedules for developing countries provide transition advantages with less investment risk and lower prices as a result of economies of scale, competition, and expiration of patents. (14)

However, there is no advantage from delay under the Montreal Protocol if technical innovation and the manufacture of alternatives occurs in developing countries or if the next-generation technology is economically superior to obsolete ODS and HFC technology. …

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