A bipartisan group of senators introduced a bill to let the Environmental Protection Agency (EPA) phase out certain greenhouse gases.
If the Senate bill becomes law it will grant EPA authority to ban hydrofluorocarbons (HFCs), potent greenhouse gases used in refrigeration and air conditioning.
In 2015, most of the parties to the Montreal Protocol, a treaty that phased out the use of ozone-depleting refrigerants, agreed to expand the treaty to fight climate change by phasing out the use HFCs through the “Kigali Amendment.”
Congress expressly granted EPA the authority phase out CFCs in 1990 by amending the 1973 Clean Air Act in order to comply with the Montreal Protocol. The 1990 amendments required manufacturers to replace substances that deplete stratospheric ozone with substances that are not ozone-depleting. Industry developed HFCs as a non-ozone depleting replacement for CFCs.
Ozone to Climate Shift
Despite the fact the Senate has yet to consider the Kigali Amendment to the Montreal Protocol, as part of former President Obama’s efforts to fight climate change, EPA wrote regulations to end the use of HFCs in the United States.
U.S. manufacturers of the more expensive HFC replacement supported the Obama administration’s move, while the foreign manufactures of HFCs sued in court to block the rule. Free market advocates in the United States supported the continued used of HFCs, as cheap and effective.
Myron Ebell, director of the Center for Energy and Environment at the Competitive Enterprise Institute, says CEI opposes turning a treaty to fight a purported hole in the ozone into a treaty to fight climate change.
“We oppose ratification of Kigali just as we opposed turning a treaty dedicated to the ozone layer into a global warming treaty,” Ebell told E&E News on February 19.
Court Halts HFC Regulation
A three-judge panel of the U.S. Court of Appeals for the District of Columbia scotched EPA’s regulatory effort to ban HFCs ruling the agency lacked the authority to implement it under the 1990 revisions since HFCs aren’t ozone depleting chemicals.
“[T]he fundamental problem for EPA is that HFCs are not ozone-depleting substances,” wrote the court in its August 8, 2017 ruling. “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 …,” said the court. “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.”
The EPA would likely have the authority to phase out HFCs if the Senate were to ratify the Kigali Amendment to the Montreal Protocol, but President Donald Trump has not announced whether he supports the deal and whether he will submit it to the Senate for ratification.
The Senate bill would obviate the need to enact the Kigali amendment, directing EPA to ban HFCs to prevent warming.
H. Sterling Burnett, Ph.D. ([email protected]) is the managing editor of Environment & Climate News.