A three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled the U.S. Environmental Protection Agency (EPA) exceeded its authority under the Clean Air Act by requiring companies to replace hydrofluorocarbons (HFCs) with other substances in an effort to fight climate change.
EPA’s 2015 rule effectively banned 38 different HFCs and HFC blends from use in aerosol spray cans, new automobile air conditioning systems, foam blowing machines, vending machines, and retail refrigerators, beginning in 2020. President Barack Obama’s administration enacted the HFC ban as an integral part of its plan to combat climate change.
The suit, brought by HFC manufacturers from France (Arkema SA) and Mexico (Mexichem Fluor), argued EPA was not authorized to institute the ban. Arkema and Mexichem manufacture HFC-134a, a refrigerant used in automotive air conditioners. Two U.S. companies, Honeywell International and Chemours, which manufacture the refrigerant HFO-1234yf, a hydrofluoroolefin (HFO) that would replace HFC-134a, intervened in the suit in support of EPA.
Limited by Law
A provision of the 1990 amendments to the 1973 Clean Air Act required manufacturers to replace substances that deplete stratospheric ozone with substances that are not ozone-depleting. The court ruled on August 8 “the fundamental problem for EPA is that HFCs are not ozone-depleting substances.”
“EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate,” the court ruled. “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.… However much we might sympathize or agree with EPA’s policy objectives, EPA may act only within the boundaries of its statutory authority. Here, EPA exceeded that authority.”
Costs Without Benefits
Arthur Viterito, a professor of geography at the College of Southern Maryland, says the HFC ban would impose large costs on consumers and is based on questionable climate science.
“In light of the many questions that remain concerning the nature and sensitivity of the global climate to greenhouse gases, this sort of regulatory overreach should not be allowed,” Viterito said. “Some of the newly developed substitutes for HFCs are prohibitively expensive.
“Honeywell’s HFO products are roughly ten times as costly as HFCs,” said Viterito. “As with so many other regulatory initiatives, replacing HFCs with HFOs would slow economic growth, eroding the buying power of American consumers in the process.”
Myron Ebell, director of the Center for Energy and Environment at the Competitive Enterprise Institute (CEI), applauded the court’s ruling, saying it promotes consumer safety and energy efficiency.
“We welcome the court’s ruling overturning the EPA’s rule to ban HFCs,” said Ebell. “Banning HFCs will force the use of alternatives that are much less safe because they are inflammable and are also less energy-efficient.
“Government mandates that limit consumer choice are bad enough, but conflicting, dangerous mandates are even worse,” Ebell said.
Montreal Protocol Complication
The court’s ruling complicates fulfillment of U.S. obligations under the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. A 2016 amendment to that treaty, signed in Kigali, Rwanda, pledges signatory countries to eliminate HFCs in an effort to fight climate change. Under the amendment, agreed to by the Obama administration, the United States would begin cutting HFCs in 2019, phasing down to 15 percent of baseline use in 2036.
Ebell says the Kigali Amendment has not been presented to the U.S. Senate for ratification and thus is not legally binding in the United States.
“CEI opposed the ratification of the amendment, which would change the purpose of the Montreal Protocol from protecting the ozone layer into a global warming treaty,” Ebell said.
Timothy Benson ([email protected]) is a policy analyst with The Heartland Institute.