The U.S. Supreme Court rejected a lawsuit challenging an August 2017 ruling, written by Justice Brett Kavanaugh when he was a judge on the D.C. Circuit Court of Appeals, which struck down a 2015 U.S. Environmental Protection Agency (EPA) regulation banning the use of hydrofluorocarbons (HFC), a coolant used in refrigerators and air conditioners, because it is a greenhouse gas.
Ozone, Not Climate
HFCs replaced chlorofluorocarbons as a refrigerant when the latter were banned under the 1987 Montreal Protocol, an international treaty designed to protect the global ozone layer by phasing out the production and use of ozone- depleting substances. To enforce the Montreal Protocol, in 1990 Congress amended the 1973 Clean Air Act to require manufacturers to replace substances that deplete stratospheric ozone with non-ozone-depleting substances. HFCs do not harm the ozone layer.
As part of then-President Barack Obama’s efforts to combat purported human-caused climate change, in 2015 EPA attempted to stretch the Montreal Protocol’s limits on ozone-depleting chemicals to cover HFCs, which have nearly 4,000 percent more heat-trapping potential as a greenhouse gas than carbon dioxide, on a molecule-by-molecule basis.
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.
HFC manufacturers from France (Arkema SA) and Mexico (Mexichem Fluor) sued EPA to block the rule, arguing the agency was not authorized under the Clean Air Act expansion to institute the ban, because the Montreal Protocol did not regulate greenhouse gases.
EPA ‘Exceeded Its Statutory Authority’
The D.C. Circuit court agreed with the manufacturers the federal government did not have the authority under the Clean Air Act to regulate HFCs, and it overturned EPA’s regulation.
Kavanaugh, who did not participate in the Supreme Court’s decision not to take up the case, wrote the circuit court’s majority opinion.
“[T]he fundamental problem for EPA is that HFCs are not ozone-depleting substances,” wrote Kavanaugh in his 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,” the court ruled. “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.”
Environmental lobbyists appealed the D.C Circuit Court’s ruling to the Supreme Court, hoping it would reinstate the 2015 regulation. The Trump administration asked the Supreme Court not to take up the appeal, saying the agency now agrees with the lower court’s determination the Obama-era rule “exceeded its statutory authority.”
‘Performing As Promised’
Kavanaugh’s decision displayed proper judicial restraint, says attorney Peter Ferrara, a senior fellow at The Heartland Institute, which publishes Environment & Climate News.
“This case shows Kavanaugh performing as promised, enforcing the law as written, regardless of the result,” said Ferrara. “That is what President Trump and his voters wanted: judges and justices that apply the law as written, rather than making up the law to suit their own preferences.
“This is what judicial appointees are supposed to do,” Ferrara said.
Attorney Christopher C. Horner, a senior fellow at the Competitive Enterprise Institute and a policy advisor to The Heartland Institute, says the Supreme Court erred in the past in allowing EPA to expand its authority to regulate greenhouse gases.
“Dicta notwithstanding, this allows the D.C. Circuit opinion to stand, that a plain reading of the Clean Air Act is appropriate, and nowhere in its Significant New Alternatives Policy language for ozone-depleting chemicals did Congress create a greenhouse gas regime,” Horner said. “The D.C. Circuit Court and the Supreme Court should have found the same thing in Massachusetts v. EPA [the case which allowed EPA to regulate carbon dioxide emissions].
“Hope for correcting that dangerously expansive reading of the Clean Air Act springs eternal,” said Horner.
Legal Battle Ends
The Supreme Court’s decision to deny the appeal of Kavanaugh’s ruling ends the legal battle over EPA’s HFC ban, leaving any decision whether to regulate HFCs to Congress. In February 2018, a bipartisan group of senators introduced a bill to allow EPA to phase out certain greenhouse gases, including HFCs. The bill was referred to the Senate Committee on Environment and Public Works, and no further action has been taken on the legislation.
H. Sterling Burnett, Ph.D. ([email protected]heartland.org) is a senior fellow at The Heartland Institute.