By David Doniger, Natural Resources Defense Council
NRDC petitioned the Supreme Court today to reverse a lower court ruling that blocked EPA’s regulations limiting use of the super-potent climate pollutants called hydrofluorocarbons (HFCs). We’re asking the Supreme Court to overrule a split decision by the D.C. Circuit Court of Appeals, in Mexichem Fluor v. EPA, which derailed EPA’s HFC rules and cut the heart out of the Clean Air Act’s program to ensure the safety of the chemicals used to replace ozone-depleting substances in millions of air conditioners, refrigerators, aerosol cans, insulating foams, and other products Americans used nearly every day. Honeywell and Chemours, two companies that invested heavily in new and safer substitutes, filed a parallel petition.
In 1990 Congress amended the Clean Air Act to phase out the production of chlorofluorocarbons (CFCs) and other chemicals destroying the earth’s stratospheric ozone layer, which shields us from dangerous ultraviolet radiation that causes skin cancer and a host of other ill effects.
The CFC phase-out is one of the triumphs of environmental protection. But it wasn’t enough just to get rid of ozone-depleting chemicals. Congress wanted to ensure we did not jump from the frying pan into the fire.
So Congress included a “Safe Alternatives Policy” in the Clean Air Act, to prevent industry from replacing ozone-depleting substances with substitutes that create new and possibly even worse health and environmental hazards.
To this end, Section 612 of the Act establishes the policy of replacing ozone-depleting substances “[t]o the maximum extent practicable” with substitutes and alternatives that “reduce overall risk to human health and the environment.” It makes it unlawful to replace an ozone-depleting substance with a dangerous substitute where EPA has determined a safer alternative is available, and it directs EPA to publish and update a list of substitutes prohibited for specific uses, and a list of safe alternatives.
EPA has operated the safe alternatives program for nearly a quarter century under regulations adopted in 1994. At the time EPA established initial lists of safe and prohibited substitutes, and the agency has updated the lists some 30 times. From the beginning, EPA put all parties on notice that the agency could revise those lists based on new information. The Clean Air Act specifically directs EPA to move a substitute from the safe list to the prohibited list if scientific data show new risks, or if safer alternatives became available. The regulations barred anyone from utilizing a dangerous substitute in a use listed as prohibited. EPA gives companies a reasonable lead time to change to safer alternatives. But change they must.
In 2015, responding to petitions from NRDC and others, EPA determined there were now safer alternatives for many HFC uses, and so the agency put those HFC uses on the prohibited list. EPA was sued by two chemical companies – Mexichem Fluor and Arkema – which had failed to invest in safe alternatives. They claimed that EPA lacks authority to order the replacement of HFCs because – no matter how dangerous HFCs are to the climate – they do not deplete the ozone layer.
A three-judge panel of the D.C. Circuit upheld EPA’s adding HFCs to the prohibited list. And the panel agreed that EPA may prevent companies still using ozone-depleting substances from switching to HFCs. But by a 2-1 vote, the judges decided EPA lacked authority to regulate the companies already using HFCs. According to the majority, EPA’s authority to prohibit use of harmful substitutes under Section 612 terminates when a product manufacturer replaces ozone-depleting chemicals with HFCs, simply because HFCs do not deplete ozone. Under the ruling, no matter how toxic, flammable, or environmentally harmful HFCs or other non-ozone-depleting substitutes may be, and no matter how much safer the available alternatives, manufacturers who already use these chemicals are grandfathered from further regulation under Section 612.
The ruling thus allows all of the current users of HFCs to keep using them in perpetuity, even though innovative companies have developed much safer substitutes, some with as little as 1/1000th of the heat-trapping power of HFCs.
Our petition argues that the majority misread the meaning of the key statutory term “replace” and misconstrued other key provisions. Drawing selectively on dictionary definitions, the two-judge majority ruled that “replace” can only mean a “one-time occurrence.” So once a product manufacturer switches to a non-depleting substitute, “there is no ozone-depleting substance to ‘replace,’” and EPA has no further authority.
The dissenting judge disagreed. Drawing on the same dictionaries, he cited more flexible definitions of “replace” and gave examples of replacements that play out in multiple steps over time, such as the decades-long transition from internal combustion engines to hybrids and electric cars. Because “replace” has multiple meanings, the dissenting judge found that the majority was wrong to impose its own restrictive reading. He found EPA’s interpretation – which allows new and safer alternatives to displace old and dangerous ones – eminently reasonable and true to Congress’ express policy of reducing overall health and environmental risk.
We offered the Supreme Court additional examples: If a teacher is absent for maternity leave, her students may have a succession of substitute teachers. Each substitute replaces not only the one before, but also the original teacher. Soft drink bottlers have replaced sugar with a succession of artificial sweeteners (e.g., saccharin, aspartame, and sucralose). Each “sugar substitute” replaces sugar, regardless of the order in which they were adopted. And a long-lived individual may have multiple replacements of the same hip. Each one replaces the original hip, not just the one before.
You can read the rest of our legal arguments in our petition for certiorari. But here’s what’s at stake.
Unless the Supreme Court puts the EPA safe alternatives program back on the rails, the D.C. Circuit ruling will bar EPA from curbing the rapidly growing HFCs, which scientists say could add up to a half degree centigrade to global average temperatures this century, dramatically worsening climate impacts including deadly heatwaves, droughts, severe storms, sea level rise, and spreading diseases.
That will be bad enough, but the harm from the ruling is not limited to HFCs. Unless reversed, it will block EPA from prohibiting use of highly toxic substitutes, as EPA did a decade ago when it stopped use of a refrigerant recently shown to cause kidney damage in workers. The ruling will even allow companies to re-start using dangerous substitutes banned more than 20 years ago, as long as they used a non-ozone-depleting substitute in between.
To top it off, the ruling destroys the incentives that companies like Honeywell and Chemours relied on to invest billions of dollars in bringing safer alternatives to market. We don’t agree with everything those companies do, of course, but here they are on the right track. The decision punishes them and protects only Mexichem and Arkema, whose entire business strategy is based on continuing to sell old and dangerous chemicals.
The D.C. Circuit ruling will make it even harder for the United States to meet the HFC reduction targets of the 2016 Kigali amendment to the Montreal Protocol, if the U.S. ratifies it. The Trump administration says it supports the goals and structure of the amendment and is considering ratification. Thirteen Republican Senators, 34 CEOs, and three conservative groups recently urged the President to send it to the Senate for ratification. The HFC reductions provided by EPA’s safe alternatives program would meet our nation’s targets well into the next decade – if the Supreme Court puts them back on track.
NRDC is working with California and 16 other leading states in the U.S. Climate Alliance to adopt EPA’s safe alternative regulations as state law requirements, as a backstop for the wounded federal program. And tomorrow we will take EPA Administrator Scott Pruitt to court again for failing to carry out the parts of the safe alternatives program that the D.C. Circuit left in place. (Check back for news on that new lawsuit tomorrow.)
But these steps will not make up for the D.C. Circuit’s gross misreading of the Clean Air Act, which gravely harms the millions of consumers who rely on the safe alternatives program to protect their health, their immediate surroundings, and environment world-wide from HFCs and other dangerous substitutes. That’s why we’re asking the Supreme Court to put EPA’s safe alternatives program back on the rails.