The United States D.C. Circuit Court of Appeals in April struck down another attempt to restrict the use of hydrofluorocarbons (HFCs), a refrigerant, based on its being a greenhouse gas, under Environmental Protection Agency’s (EPA) Significant New Alternatives Policy (SNAP).
In the case, the environmental group Natural Resources Defense Council, 11 states and the District of Columbia sued to halt the continued use of HFCs based on a guidance EPA issued in 2018 limiting the use of substitutes for regulated ozone-depleting substances (ODS) based on their greenhouse gas trapping potential.
Manufacturers of HFCs currently in use fought back arguing EPA was precluded by a previous D.C. Court of Appeals decision in Mexichem Fluor, Inc. v. EPA, decided Apr. 5, 2019, which found EPA could prevent manufacturers from replacing ODS substances still in use with HFCs, but the agency may not require manufacturers to replace previously approved HFCs already in use with alternatives based on their global warming potential.
In this case, referred to as Mexichem II, the court ruled it was bound by its prior decision in regarding SNAP Rule 20 (Mexichem I) in the case before it concerning SNAP Rule 21 (Mexichem II) based on the legal doctrine of issue preclusion.
Following the Law as Written
The two SNAP rules restricted manufacturers from using HFCs in aerosols, motor vehicle air conditioners, commercial refrigerators, and foams. SNAP Rule 21 specifically limits using HFCs in foam-blowing agents for closed cell foam products.
To comply with Title VI of the Clean Air Act, manufacturers have used HFCs since the 1990s as substitutes for ODS. These substitutes, however, have a high global warming potential because they are highly efficient at trapping heat in the atmosphere. The latter issue was not addressed in the law regulating ODS however, and the court was loath to extend a law intended to fight ozone depletion to the fight against climate change.
The attempt to end the use of HFCs began under the Obama administration as part of its efforts to fight purported climate change.
Agency Not Licensed to Act Unilaterally
Mexichem I’s decision was authored by then appeals court judge Brett Kavanaugh, who has subsequently become a justice of the U.S. Supreme Court.
In that case a three judge panel of the court ruled EPA exceeded its authority under the Clean Air Act by requiring companies to replace HFCs with other approved substances in an effort to fight climate change.
“[T]he fundamental problem for EPA is that HFCs are not ozone-depleting substances,” said Kavanaugh writing for the court. “EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate.
“Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change,” Kavanaugh continued. “EPA may act only within the boundaries of its statutory authority. Here, EPA exceeded that authority.”
In Mexichem II, the court determined its decision was bound by the ruling the same court made in Mexichem I.
EPA defended the SNAP rules in Mexichem I, a case which began when the Obama administration still controlled EPA. In Mexichem II, EPA sided with manufacturers and did not defend the SNAP rule, finding the ruling in Mexichem I made it legally indefensible.
State Responses Anticipated
The D.C. Court’s ruling in Mexichem II was perhaps the final blow against the Obama administration’s attempts to regulate refrigerants based on their greenhouse gas characteristics, says Beveridge & Diamond, P.C., a law firm dedicated to environmental, natural resource, and land use litigation.
With regulation of HFCs based on their greenhouse gas trapping potential at the federal level currently precluded under the court’s rulings, some states have begun to attempt to fill the perceived regulatory void using state laws.
California, New York, Washington state, and Maryland have already adopted rules to replace the ones vacated by SNAP Rule 20 and 21 or have announced their intentions to do so, according to an article written by Beveridge & Diamond on April 10.
Kenneth Artz ([email protected]) writes from Dallas, Texas.
Circuit Judge Brett Kavanaugh, “Ruling In Mexichem Fluor, Inc., Petitioner V. Environmental Protection Agency, Respondent,” August 8, 2017: https://heartland.org/publications-resources/publications/ruling-in-mexichem-fluor-inc-petitioner-v-environmental-protection-agency-respondent