Beveridge & Diamond
 

U.S. Will Likely Support Launch of Mercury Treaty Negotiations

Beveridge & Diamond, P.C., February 11, 2009

The U.S. State Department met earlier this week with stakeholders to announce that the United States was moving to change its position and support the development of a legally binding mercury agreement at next week’s United Nations Environment Program (“UNEP”) Governing Council’s 25th Session in Nairobi, Kenya.  Among other matters, the Governing Council will decide whether to initiate negotiations on a mercury treaty at the meeting.  State Department officials indicated that the United States would likely support the initiation of a new negotiating process with the goal of completion of an agreement by late 2011 or 2012.  The negotiation could involve significant attention to risk-mitigation measures applicable to mercury-containing products of interest to the IT and electronics sector.    

UNEP has been working for several years on developing a new framework for international controls on mercury.  Until the recent change in Administration, the U.S. government had strongly advocated for voluntary initiatives instead of a binding treaty.  The shift in the U.S. position to support the formation of a mercury treaty will align the United States more closely with tradition supporters of a new binding agreement, such as the EU.  The EU in particular has long pushed for a new agreement on mercury as well as other heavy metals.  As a result, the EU will push for a inclusion of a mechanism that would allow expansion of the treaty’s scope to include other heavy metals. 

U.S. officials, however, indicate that the United States will oppose a broader “adding mechanism,” and will instead take the position that the treaty should focus exclusively on mercury given its unique capabilities to travel long distances in the environment.  At the same time, the U.S. delegation will call for the treaty to be comprehensive with respect to all source categories for mercury. 

U.S. officials explicitly indicated their intent that the treaty mandate would include within its scope specific provisions focusing on mercury in products, although they stated that the treaty should include different types of control measures for different source categories.  This focus on products, despite their relatively small contributions of mercury into the environment compared to other source categories, is in part a reflection of the fact that more significant source categories of mercury deposition, such as fossil fuel combustion, are more politically contentious and will take more time to address.  Work on mercury in products could mirror the various mercury-related restrictions emerging at the local, state and national levels in many jurisdictions, including content limits, product bans and phase-outs. 

It remains to be seen whether other key countries, including China and India, will support the initiation of a new treaty next week.  If they do, a UNEP mercury treaty would potentially have significant impacts on electronic products containing mercury, primarily because decisions at the multilateral level on mercury will in turn drive national-level regulatory proceedings.  It would also provide the EU and other like-minded countries with a forum to press for greater controls on the life-cycle management of chemicals and heavy metals in products.  Finally, the new U.S. position on mercury may signal the beginning of a broad shift in U.S. policy, both domestically and internationally, regarding product regulation more generally. 

For background documents, see:  http://www.unep.org/gc/gc25/working-docs.asp.

For more information, please contact Russ LaMotte at rlamotte@bdlaw.com, or Jackson Morrill at jmorrill@bdlaw.com.