2017 DC Circuit Court of Appeals decision to block EPA bans on HFCs, think again. Refrigerant manufacturers Chemours and Honeywell and green group NRDC have petitioned the US Supreme Court to review the DC Circuit Court of Appeals decision as the battle continues to phase-out HFCs.
In August 2017, the US Court of Appeals for the District of Columbia overturned EPA directives to ban high GWP refrigerants like R404A, R134a, R407C and R410A from use in certain applications. Chemours, Honeywell and the NRDC appealed the decision but that appeal was rejected at the beginning of this year. Now the three companies are taking their fight to phase-out HFCs to the Supreme Court.
Paul Kirsch, Chemours President of Fluoroproducts, expressed disappointment in the D.C. Circuit Court of Appeals decision.
“We believe that the legal basis of the SNAP 20 rule was well-founded, and the Court’s ruling exceeded its jurisdiction, effectively invalidating a decades-old EPA regulation and believe the decision has failed to take into account the EPA’s original directive to ensure that safer alternatives are used to replace ozone-depleting substances,” Kirsch said. “A number of states, academia, and businesses share our concern and feel the preservation of this rule is in the best interest of the public, the environment, and US industry.”
Honeywell claims that American companies have invested more than $1bn to invent, commercialise and manufacture safer replacement alternatives to ozone-depleting substances, such as HFOs. “The DC Circuit decision undermines the innovation and investments that American businesses have made to create and transition to safer alternatives,” it says.
The NRDC commented on the original appeal ruling: “If allowed to stand, [it] will let HFCs keep fuelling dangerous climate change, increasing risks for the millions of Americans who are living through hurricanes and other extreme weather events, and experiencing many other climate impacts.”
Meanwhile, earlier this month, New York Attorney General Barbara D. Underwood, along with a coalition of 11 Attorneys General, filed suit in the U.S. Court of Appeals for the District Columbia Circuit against the U.S. EPA. The suit challenges the EPA’s decision to completely void 2015 regulations pertaining to the use of HFCs and argues that rescinding the rule violates the Clean Air Act.
“The Trump EPA seems intent on taking every opportunity to undermine efforts to fight climate change,” said AG Bob Ferguson. “It’s irresponsible, dangerous, and contrary to the purpose of the EPA.”
The Clean Air Act requires the EPA to maintain lists of safe and prohibited substitutes for ozone-depleting chemicals. The EPA originally listed HFCs as safe substitutes. In 2015, the EPA issued a rule listing HFCs as “unacceptable” substitutes because of their high global warming potential.
Two major manufacturers of HFCs, Mexichem Fluor and Arkema, sued the EPA over the 2015 rule. In that case, the court held that the EPA lacks legal authority to require a product manufacturer that has already replaced an ozone-depleting chemical with HFCs to switch to a safer alternative.
In April 2018, EPA Administrator Scott Pruitt went beyond the Mexichem court ruling and issued “guidance” completely reversing the 2015 rule. This removes the HFC restriction for all entities, not just for product manufacturers that currently use HFCs.
The states contend the EPA’s “guidance” rescinded the rule without the required notice or comment period. The Clean Air Act requires notice and comment prior to adopting or repealing a rule.
The states’ decision to sue the EPA adds to the growing pressure on the U.S. to take action on phasing-out HFCs at the federal level and to ratify the Kigali Amendment to the Montreal Protocol.
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