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UNEP Governing Council Launches Binding Mercury Treaty Negotiations

Beveridge & Diamond, P.C., February 26, 2009

The United Nations Environment Programme (UNEP) Governing Council last week adopted a mandate for the initiation of negotiations on a legally binding agreement on mercury.  The U.S. reversal of its prior position was a critical factor in ensuring that the Governing Council reached agreement.

The Mandate

The mandate directs UNEP to convene an International Negotiating Committee (INC) to begin work on a legally binding mercury treaty.  The scope of the mandate covers all uses and potential sources of mercury emissions, including mercury in products and processes, and mercury-containing wastes.

The mandate usefully recognizes that different sources of mercury emissions may warrant different priorities, different restrictions, and different time frames for implementation.  In addition, it notes that some countries may need flexibility in implementing their commitments under the treaty.  Some of the other guiding principles in the mandate may prove useful during the negotiation of the treaty to those parties interested in ensuring that the resulting agreement reflects a cost-effective, risk-based and science-based framework.  For example, it calls for consideration of the technical and economic availability of mercury-free alternative products and processes, recognizing the necessity of the trade of essential products for which no suitable alternatives exist.

The mandate is limited in one key respect:  it focuses only on mercury, notwithstanding attempts by the EU and some other countries to include a mechanism that would allow for the treaty to include other heavy metals of concern in the future.  Unless the UNEP Governing Council amends the mandate in the future, therefore, the treaty negotiating process will focus exclusively on mercury.  In this sense, the treaty is likely to be “narrow but deep.”  

Products are Included, and May Even Receive Early Attention

Even though fossil fuel-burning utilities are a far bigger source of mercury emissions than, for example, emissions from products containing mercury, controlling fossil fuel emissions through a global agreement is expected to be extremely complicated.  Other significant sources of mercury emissions likewise present complex political and technical challenges.  Those challenges are likely to drive certain countries to press for early action on mercury in products as an area that they perceive as “low hanging fruit” for available reductions.

A recent report by a group of NGOs, “Mercury Rising: Reducing Global Emissions from Burning Mercury-Added Products,” will likely reinforce the focus on products during the upcoming negotiations.  Although it acknowledges that mercury-containing products account for only about 10% of all anthropogenic sources of mercury emissions (compared to 50% for fossil fuel combustion), the report stresses that mercury-added products are “the largest contributor to mercury in the waste stream.”  The report proposes two main actions to address this issue:  phasing out the manufacture, sale and use of mercury-containing products; and eliminating the disposal of mercury-containing products in landfills or through incineration.  

Timetable

An Open-Ended Working Group will meet in the second half of 2009 to prepare for a first INC meeting in 2010.  Work will then continue with the goal of being completed in time for the meeting of the UNEP-GC scheduled for 2013. 

Potential Industry Response

The upcoming treaty negotiations and the eventual treaty are likely to drive the development of new regulations on mercury at the national and sub-national levels for many years to come, particularly in developing countries that have not yet initiated significant domestic mercury action to date.  For manufacturers and distributors of mercury-containing products, moreover, there is a likelihood that control measures adopted under the treaty may ultimately lead to market access restrictions. 

Potentially affected industry sectors may therefore wish to consider engaging directly or through  a coalition in the treaty negotiations.  (As civil society stakeholders, industry and business groups can participate as active observers in the treaty negotiations.)  Indeed, for some sectors the treaty may even offer the possibility of developing harmonized approaches to certain controls on mercury that currently are not well coordinated among differing jurisdictions.   

Beveridge & Diamond, P.C. has significant experience in guiding industry groups through multilateral environmental treaty negotiations.  We also have significant substantive experience with environmental regulatory requirements applicable to mercury emissions and mercury-containing products throughout their lifecycle.  Please contact us if you are interested in learning more about opportunities for business and industry engagement in the mercury treaty process.

For more information, please contact Aaron Goldberg at agoldberg@bdlaw.com, Paul Hagen at phagen@bdlaw.com, or Russ LaMotte at rlamotte@bdlaw.com.

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