On August 8, the three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled that the U.S. Environmental Protection Agency (EPA) cannot require companies to replace potent heat-trapping chemicals called hydrofluorocarbons (HFCs) with other substances. HFCs are used worldwide as coolant agents in air conditioning and refrigeration systems as well as in aerosols and foam insulation materials. EPA’s rule, adopted in 2015, would have restricted the manufacturing of products containing HFCs, which are hundreds to thousands of times more potent than carbon dioxide at trapping heat in the atmosphere.
HFCs came into use after the EPA approved them in 1994 as a replacement for an earlier generation of refrigeration gases, chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs), which deplete ozone in the stratosphere and were phased out under the 1987 Montreal Protocol. Stratospheric ozone is necessary to protect the planet against ultraviolet rays from the sun.
The EPA’s 2015 rule would have accounted for about four percent of U.S. greenhouse gas emission reductions laid out in the Paris Climate Agreement. The U. S. pledge in the Paris Agreement is to reduce its greenhouse gas emissions by 26 to 28 percent by 2025 compared to its emissions in 2005 (when the United States emitted 6,132 million metric tons of CO2). The EPA rule had the backing of two large U.S. chemical manufacturers: DuPont spinoff Chemours and Honeywell International, which have been developing replacement compounds. The United States had also committed to further reduce HFCs last year at a meeting in Kigali, Rwanda, when it was one of 170 countries that agreed to phase out HFCs as an amendment to the Montreal Protocol treaty. It is estimated that this commitment, together with the rule struck down by the court, would have fulfilled about nine percent of the U.S. Paris Agreement pledge.
The U.S. Federal Appeals Court said that because HFCs are not ozone-depleting gases, the EPA could not use the Clean Air Act as its authority to phase them out. While the Clean Air Act does not explicitly address ozone depletion, the EPA used its authority granted by that statute to require the earlier switch to HFCs. One industry analyst, Christopher Perrella, decried the court’s decision, stating that EPA’s rule would have been “good for the companies and… good for the planet.” The court ruled two-to-one in favor of two foreign HFC manufacturers based in Mexico (Mexichem Fluor) and France (Arkema), holding that the EPA had no authority to regulate HFC gases under the Clean Air Act. The majority judges wrote that EPA still has several other statutory authorities to phase out HFCs, such as through the Toxic Substances Control Act, or by prohibiting manufacturers that still use ozone-depleting substances from switching over to HFCs (if it adequately explains its reasoning).
Those who criticized the court decision, however, argue that in 2007, the Supreme Court ruled that the Clean Air Act also obligates EPA to address pollutants that endanger public health indirectly by warming the planet. Based on that ruling, President Obama’s 2013 Climate Action Plan used a previously established program called Significant New Alternatives Policy (SNAP) and section 612 of the Clean Air Act to phase out HFCs.
The impacted U.S. chemical companies, as well as the Natural Resources Defense Council, an environmental advocacy group, are exploring options for appeals.
Author: Richard Nunno
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- "D.C. Circuit decision on HFC rule: implications for U.S. implementation of Kigali and alternative regulatory pathways," Columbia University Law School blog
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