Trump Judge’s Dissent Tries to Uphold EPA Rule Eliminating Restrictions on Dangerous Emissions: Confirmed Judges, Confirmed Fears
By Elliot Mincberg, People For the American Way
Trump D.C. Circuit judge Neomi Rao argued in dissent that the Environmental Protection Agency (EPA) should be allowed to completely scrap a previous rule that restricted industry use of dangerous hydrofluorocarbons (HFCs) without allowing any opportunity for notice and comment. The D.C. Circuit majority disagreed and struck down the new EPA rule in its April 2020 decision in NRDC v. Wheeler.
HFCs are chemicals sometimes used in aerosols, commercial refrigerators, automotive air conditioners, and other products. The EPA concluded in the 2010s that HFCs are “powerful greenhouse gases” that can “contribute to climate change” and an increase in the “incidence of mortality and the likelihood of extreme weather events such as floods and hurricanes.” After providing notice and an opportunity to comment, the EPA promulgated a 2015 rule that both banned use of HFCs instead of other substances that deplete the ozone layer and prohibited the continued use of HFCs by companies that had already substituted HFCs for ozone-depleting substances.
In its 2017 Mexichem decision, the D.C. Circuit ruled that while the EPA could ban future use of HFCs, it could not require companies that had substituted HFCs for for other substances to stop using them. In 2018, however, the Trump-era EPA issued a rule completely eliminating the previous ban on HFCs, including with respect to companies that had not begun using them. The EPA claimed it was simply “interpreting” the Mexichem ruling, and thus did not provide notice or an opportunity to comment on its rule before it was adopted.
The Natural Resources Defense Council (NRDC) filed suit to challenge the 2018 rule. The D.C. Circuit agreed in a 2-1 decision to vacate the rule and send the matter back to the EPA. The majority agreed that the EPA rule was clearly legislative in nature, and that the EPA had improperly and “wholly failed” to provide the public with any opportunity to review and comment on its proposal to completely eliminate the HFC ban.
Trump judge Neomi Rao dissented, arguing that the EPA was, in fact, simply interpreting the Mexichem decision, which should have completely eliminated the HFC rule. Chief Judge Sri Srinivasan, who wrote the majority opinion, showed that Rao was wrong.
The plain language made clear, Srinivasan explained, that the “2018 rule did not merely interpret” Mexichem, but “instead expanded” its partial invalidation of the 2015 rule into a “full vacatur, revoking” the partial ban on HFCs that “had remained standing” after the decision. Rao’s criticism of Mexichem’s partial invalidation of the 2015 rule was contradicted by “precedent,” the majority went on. The decision “is now final,” the majority stated, and the EPA never tried to go to the court to change the decision. Instead, the majority concluded, the EPA improperly tried to itself transform the decision into an “across-the-board invalidation” of the 2015 rule without providing public notice and an opportunity to comment on such a significant change.
As the NRDC and an attorney for one of the states in the case commented, the ruling will result in “significantly lower emissions from HFCs” and a rebuke of the Trump administration’s “reckless disregard of science and the law.” But if Rao’s view had prevailed, Trump’s dangerous and illegal 2018 EPA rule would have been upheld.