July 15, 2004 The Honorable L. Colin Powell
U.S. Department of State
2201 C Street, NW
Washington, D.C. 20520 The Honorable Michael O. Leavitt
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460 Dear Secretary Powell and Administrator Leavitt: We are very concerned to learn that the Administration has pursued increases in the use and production of the ozone-depleting substance methyl bromide beyond the level allowed by the Montreal Protocol and the Clean Air Act. In fact, it appears that the Administration may have intentionally portrayed the situation to both Congress and other parties to the Protocol in an inaccurate and suspect fashion. According to recent documents that the Environmental Protection Agency (EPA) provided to the Natural Resources Defense Council (see attached), methyl bromide use in the United States for 2003 was 7,674 metric tons or 30.06% of 1991 baseline levels. This number includes 6,507 metric tons of actual consumption (25% of baseline), which under the Montreal Protocol includes production plus any imports minus any exports, and 1,167 metric tons of "drawdown" (5% of baseline), which presumably came from existing stockpiles. These numbers are extremely troubling in light of the fact that in November 2003 the United States requested a critical use exemption for 2004 of 39% of 1991 baseline levels. According to the U.S. delegation, this amount represented the minimum necessary to meet the needs of U.S. agricultural producers. When the Conference of Parties (COP) balked at the request, the U.S. walked away from the negotiations, suggesting that the COP was being unreasonable. The U.S. posture necessitated an extraordinary meeting of the parties, which was convened in Montreal in March 2004. At that meeting, the United States again took the position that its original request of 39% was absolutely necessary to meet its needs. It also sought a multi-year exemption schedule. Based on an assessment from one of the technical committees charged with reviewing applications for critical use exemptions, the COP granted the U.S. a critical use exemption for 2004 of 35% of 1991 baseline levels, which included a cap on new production equivalent to 30% of the 1991 baseline. The COP also left open the possibility of granting the U.S. an additional 2% exemption based on a supplemental request. At the time, supporters of the treaty expressed gratitude that the United States had not maintained an unduly rigid negotiating posture and had acceded to the will of the parties. Yet, it now appears that the United States may not have been negotiating in good faith. Indeed, when we compare the 2004 requests to the 2003 numbers contained in the EPA documents provided to the Natural Resources Defense Council, it is clear that the United States was asking for significantly more in 2004 than it actually used in 2003. As you know, the objective of the Protocol is to phase out methyl bromide use. Indeed, under the original phase-out schedule, the United States was supposed to end all methyl bromide use in 2005. But it now looks as if the United States may actually be adding to the existing stockpile of methyl bromide rather than drawing it down as part of the phase out. Moreover, the fundamental premise of the critical use exemption process is that a particular party will not apply for an amount in excess of that which it absolutely needs and that existing stockpiles should be used before allowing any new production. The process was never intended to serve as a vehicle for producing and stockpiling methyl bromide in excess of actual use. Given this information, we request your prompt response to the following questions: (1) When did the EPA compile the actual use numbers for 2003? (2) Was this information, or some reasonable estimation thereof, made available to the State Department, USDA, and/or the White House as preparation for the November 2003 COP meeting in Nairobi? (3) Was this information, or some reasonable estimation thereof, made available to the State Department, USDA, and/or the White House as preparation for the March 2004 ExMOP in Montreal? (4) Was this information, or some reasonable estimation thereof, made available to the State Department, USDA, and/or the White House as preparation for the July 2004 working group meeting in Geneva? (5) If the information, or some reasonable estimation thereof, was not transmitted to those responsible for fashioning and negotiating the official U.S. request for a critical use exemption for methyl bromide, what was the reason or reasons? Finally, as you may recall, Senator Jeffords, as ranking member of the Senate Committee on Environment and Public Works, has an outstanding document request dating from February 2003 that the Administration has so far refused to honor and which concerns the amount of methyl bromide currently stockpiled in the United States. This information appears to have been redacted from the documents that the EPA provided to the Natural Resources Defense Council, presumably because of its supposed confidential nature. We note, as has been noted before, that such restrictions do not apply to Congressional requests. But even if the Administration and the EPA continue to insist on treating Senator Jeffords' request in this manner, no effort appears to have been made to follow standard agency procedures to determine whether in fact such information merits the status of confidential business information. We look forward to your prompt reply. We expect you and all members of the Administration to act in accordance with our international treaty obligations and the requirements of the Clean Air Act. Sincerely, James M. Jeffords Paul S. Sarbanes Frank R. Lautenberg Joseph I. Lieberman