By David Doniger, Natural Resources Defense Council
NRDC and leading companies are asking the full federal appeals court in Washington today to rehear and reverse a divided panel’s August decision blocking the Environmental Protection Agency from cutting emissions of hydrofluorocarbons (HFCs).
HFCs are powerful climate-changing pollutants, with thousands of times the heat-trapping power of carbon dioxide. They were adopted in the 1990s to replace chlorofluorocarbons (CFCs) – chemicals that were destroying the stratospheric ozone layer.
Congress enacted 1990 Clean Air Act provisions to phase out CFCs. The law includes a “Safe Alternatives” program to ensure that replacement chemicals adopted to perform the same functions don’t create new health or environmental problems.
HFCs may have made sense in the 1990s as a first step away from CFCs. But now they are the fastest-growing climate pollutants here in the U.S., and especially in the developing world, as more and more people can afford air conditioners.
Left unchecked, HFCs released from equipment like air conditioners and supermarket refrigerators will cause a major rise in global temperature.
First the good news: In 2015, EPA issued Clean Air Act rules requiring a transition to safer alternatives.
That was possible because American chemical makers developed new and safer refrigerants, foam blowing agents, and aerosol propellants to replace HFCs – chemicals with much lower impact on our climate. And American manufacturers developed new products that use these safer chemicals, raising energy efficiency at the same time.
Now the bad news: Two foreign-owned companies – Mexichem Fluor and Arkema (yes, the same one recently in Hurricane Harvey news) – sued to block the HFC rules.
And in August, two of the most conservative judges on the D.C. Circuit ruled, over a third judge’s dissent, that EPA can’t stop the use of HFCs by companies that already use them.
The ruling eviscerates EPA’s Safe Alternatives program.
NRDC’s rehearing petition asks the full 10-member court to reverse the panel decision.
If the decision is allowed to stand, HFCs will keep fueling dangerous climate change, increasing harm suffered by the millions of Americans who are living through hurricanes and other extreme weather events, and experiencing many other climate impacts.
The decision will also undercut international cooperation to curb the explosive growth of HFCs world-wide through the landmark Kigali HFC Amendment adopted in October 2016.
It will even block EPA from stepping in when substitutes found to be acutely toxic – as EPA did some years ago when it stopped use of a refrigerant that caused kidney damage to exposed workers.
Honeywell and Chemours – two companies that have invested more than a billion dollars in developing safer alternatives in reliance on the Safe Alternatives program – are also asking the full court to reverse the panel. They support the EPA safety rules and the Kigali agreement, as do nearly all American companies in this industry.
Supportive briefs are expected to be filed by California and other states, and by a group of law professors.
[Check back here later today – we’ll post those briefs when they are available.]
What about EPA?
The Trump administration deserves credit for defending these HFC rules when the case came up for oral argument in February. And the HFC rules have been conspicuously absent from the administration’s hit list of climate regulations to roll back.
That’s not surprising, because these rules are actively supported by the vast majority of the regulated industry.
While EPA did not file for rehearing today, the court is likely to ask the agency to respond.
This is an opportunity for EPA Administrator Scott Pruitt to show support for an important environmental protection measure that’s backed by both industry and environmentalists.
The EPA should support rehearing for additional reasons. First, the panel majority overstepped the court’s jurisdiction, by overturning a 1994 regulation that by law can’t be challenged now.
It’s the 1994 regulation that requires product manufacturers to switch to safer alternatives when EPA adds an existing substitute the prohibited list. The panel upheld EPA’s adding HFCs to that prohibited list in 2015. That should have ended the case.
Administrator Pruitt frequently emphasizes the importance of regulatory certainty and predictability for industry, so he should want to defend this jurisdictional rule, which prevents uncertainty-creating “late hits” from all sides.
The panel decision also overreaches by not giving EPA the leeway due under the Chevron doctrine. Conservatives have often chafed at giving the government discretion, but that leeway is a neutral principle that all administrations should want to maintain.
What are the next steps? Look for the court to ask Mexichem and Arkema – and possibly EPA – to respond. Then the court will decide whether to grant rehearing.
In the meantime, the EPA rules requiring safe alternatives to HFCs are still on the books until the litigation is resolved. Let’s hope the full U.S. Court of Appeals takes another look, and upholds the crucial program to assure that the chemicals in so many products that surround us are safe for our health and our climate.