Taking on Toxics I: Stopping POPs

by Charlie Cray

After three years of negotiation, representatives from 122 countries in December successfully completed a draft of a legally binding instrument to phase out a group of dangerous chemicals known as persistent organic pollutants (POPs).

POPs are toxic chemicals that persist, bioaccumulate and pose a risk of causing adverse effects on human health and the environment. POPs can migrate long distances far from their origin of manufacture and use, especially from warmer to colder regions of the planet. High levels of a variety of POPs have been measured in the Arctic region in both wildlife and indigenous peoples, whose traditional game foods are increasingly contaminated by POPs.

The UN-sponsored treaty, which applies to an initial list of 12 POPs, including pesticides, industrial chemicals and unintended toxic industrial by-products such as dioxins, also establishes criteria for countries to add chemicals to the list. The treaty is scheduled to be signed in May and will go into force when ratified by 50 countries, a process expected to take up to four years.

Environmentalists view the treaty as a major advance in the global application of the precautionary principle, clean production and clean-up of POPs hot spots.

"The POPs treaty should be the beginning of the end of toxic pollution," says Rick Hind of Greenpeace. "It should be viewed as a global model for governments to replicate at the national, regional and local level."

A Pox of Poisons

Many delegations arrived at the fifth and final POPs Intergovernmental Negotiating Committee meeting, held in Johannesburg, South Africa, with hardened positions and a long list of specific exemptions and objections to the drafted text. But skilled facilitation combined with continuous pressure from over 300 nongovernmental organizations (NGOs) coordinating together through the International POPs Elimination Network (IPEN) helped force the delegates to come out of the week-long meeting and its marathon concluding session with a completed draft treaty.

The delegates reached a compromise on a number of key issues, while a number of exemptions and provisions favorable to the chemical industry were removed, including a clause subordinating the POPs treaty to the rules of the World Trade Organization.

Hovering above the Johannesburg negotiations was a pall cast by the recent collapse of the climate change negotiations in the Hague. The World Wildlife Fund hung a banner in the meeting hall to remind the delegates, "Don't Repeat the Hague," a message directed mostly at the U.S. delegation, widely blamed for the collapse of the climate talks.

Until the Johannesburg meeting, the United States and a handful of allies from the JUSCANZ countries (Japan, South Korea, Australia, New Zealand and Canada, plus the United States) had been insisting on loopholes and exemptions that environmentalists said would seriously weaken the treaty and protect polluting industries. The United States in particular had opposed including the precautionary principle - the concept favoring action to protect health and the environment, even in the face of scientific uncertainty - within the treaty. The United States had also opposed setting a goal of "elimination" for dioxins and other unintended by-products, contending that dioxin elimination would drive up the cost of implementing the treaty, thus linking the issue to the question of funding sources, a key concern of developing nations.

The credibility of the U.S. position on dioxin was undermined, however, by interventions from local activists from Mossville, Louisiana (where residents living near PVC production facilities have triple the national level of dioxin in their bodies) as well as representatives of the Indigenous Environmental Network and others. These first-person accounts from the United States exposed weaknesses in the U.S. "end-of-pipe" regulatory approach to dioxins and other chemicals. Creative protests by other IPEN members also helped open up space in the negotiations for a coalition of EU and developing nation delegates who worked to strengthen different parts of the treaty.

Since multinational chemical companies no longer manufacture any of the POPs on the "dirty dozen" list (most of which are banned pesticides) they were most concerned with treaty provisions relating to unintended by-products such as dioxin. Working through the JUSCANZ delegates, the industry advocated keeping "elimination" out of this specific section of the treaty.

In the end, however, the industry effort failed. The treaty sets "the goal of their continuing minimization and where feasible ultimate elimination," and calls upon the signatory countries to "promote the development and where it deems appropriate, require the use of substitute or modified materials, products and processes to prevent the formation and release" of dioxins and other byproduct POPs. The final draft of the treaty also drops hedge terms limiting actions to "cost effective" measures - a provision sought by the chemical industry.

Although the intent of such language will continue to be debated as the treaty is put into effect, Michael Gregory of the Sierra Club says "the treaty clearly sets the stage for the elimination of POPs-producing processes such as the manufacture of compounds like PVC, chlorinated solvents and pesticides, as well as chlorine bleaching of pulp and paper and the use of incinerators for treating chlorine-bearing wastes."

The Debate Over Precaution

The debate over how to apply the precautionary principle to POPs played out most notably in discussions regarding the procedure for adding new chemicals to the "dirty dozen" now covered by the treaty. Throughout the negotiations, the European Union supported the inclusion of a precautionary approach to evaluating new chemicals, while the JUSCANZ (and the chemical industry) vigorously resisted, insisting that this approach was "unscientific."

The final compromise language on this point adopts both a precautionary approach and a rigorous scientific review of the health effects of chemicals under consideration. Significantly, the text states that "lack of full scientific certainty shall not prevent the proposal [to add a new POP to the list of chemicals governed under the treaty] from proceeding."

The signatory countries also agreed to take measures to "regulate with the aim of preventing" the production and use of new chemicals that exhibit POPs characteristics. In conjunction with the precautionary approach to adding new chemicals, many NGOs view this provision as a move towards turning off the tap of new POPs production.

After much difficult negotiation, the richer country delegates also agreed on ways to provide technical and financial assistance to poorer countries. As U.N. Environmental Program officials emphasized repeatedly throughout the POPs negotiations, not only do the poorest suffer most from the effects of POPs, but richer countries have an obligation to assist poorer nations since many of the chemicals (e.g. stockpiles of old pesticides) came to the Third World via Northern-directed industrial and agricultural development programs. Thus provisions in the treaty which require rich nations to provide various types of technical and financial assistance constitute a type of "polluter pays" principle embedded in the treaty.

Financing was a big issue for the Third World, organized in a grouping known as the G-77. The G-77 came out of the Johannesburg meeting relatively satisfied that rich countries are obligated to provide "new and additional financial resources," especially to least developed countries and small island states.

Much of the money and assistance is needed to destroy stockpiles of obsolete pesticides and PCBs, which are specifically required by the treaty to be removed from use in equipment by 2025. Since the treaty specifically identifies waste incinerators as major sources of dioxins and clearly calls for the destruction of POPs stockpiles by methods that will neither produce nor disseminate POPs, the treaty will encourage governments and international lending bodies to fund emerging non-combustion alternative destruction methods.

"We're delighted that through this treaty 122 nations have embraced the goals of POPs elimination, which clearly leaves no room for incineration," says Madhumita Dutta of Toxics Link, a New Delhi-based founding member of the recently formed Global Anti-Incineration Alliance.

The treaty also provides a limited public health exemption for continued use of DDT to control malaria, while providing strong incentives to develop and adopt safer alternatives.

At the insistence of several G-77 countries, the treaty includes reference to the Basel Convention, requiring that POPs wastes not be transported across international boundaries without taking into account international standards and guidelines.

Surprisingly, both environmentalists and the chemical industry came out of Johannesburg optimistic about the results.

The American Chemistry Council (ACC, formerly the Chemical Manufacturers Association) and the Chlorine Chemistry Council say they are pleased that a "weight of science" approach will be used to decide whether to restrict or eliminate new chemicals, and are "gratified" that the goal of eliminating by-product emissions like dioxin will be implemented only "where feasible."

But many environmentalists view the ACC's interpretation of the treaty as spin intended to lower any expectations that signatory countries will use the treaty to enact far-reaching measures that would challenge the regulatory status quo.

As evidence that the industry ended up losing most of the battles involved in the subtle and grueling POPs treaty negotiations, they point out that most of the industry-drafted exemptions and loopholes had been dropped during the course of the week.

"Since the industry says it supports the treaty, it ought to be the Bush Administration's obligation not only to go to Stockholm in May to sign the treaty, but also lobby for its quick ratification afterwards in the Senate," says Hind.

While European countries have adopted chemical phase-out policies in previous treaties, if the United States signs the treaty, it will be the first time the country has signed a legally binding policy to eliminate toxic pollutants.