Two chemical companies have filed an appeal to have the full DC Court of Appeals hear a case involving the regulation of the chemicals used in refrigeration and air conditioning — one that had served as a piece of the Obama climate agenda.
Chemours Co. and Honeywell International were joined by the Natural Resource Defense Council, which argue that the Clean Air Act does indeed allows for the Environmental Protection Agency to phase out certain chemicals that are used in refrigeration and air conditioning. For their part, the chemical companies have been investing in alternatives to “hydrofluorocarbons,” or HFCs, that are climate friendly.
A three-judge panel on the same appeals court had overturned in August an Obama-era rule regarding HFCs, saying that the Obama administration had overreached. In 2015, Obama’s EPA wanted to phase out those HFCs because they contribute heavily to global warming. But two of the three judges that first ruled said that the Clean Air Act was not written to allow such a phase out.
“The panel majority eviscerated the critical program Congress enacted to ensure that substitutes adopted to replace ozone-depleting chemicals ‘reduce overall risks to human health and the environment’ ‘to the maximum extent practicable,'” the NRDC wrote, quoting the Clean Air Act, as quoted in The Hill.
“If the decision stands, HFCs will continue fueling dangerous climate change and increasing the harms suffered by millions of Americans experiencing extreme weather events and other climate impacts,” the environmental group continued.
“The decision eviscerates EPA’s ability to ensure that chemicals used in countless consumer and industrial products are safe for the planet,” Honeywell and Chemours added, also quoted in The Hill. “It not only eliminates an important regulatory tool to address climate change, but also a tool that EPA has used to ban toxic substitutes.”
In August, the appeals court ruled 2-to-1 that the EPA cannot use the Clean Air Act as the vehicle to ban HFCs. That’s because the section of the law that EPA references is intended to protect the ozone layer. And by everyone’s admission, HFCs are not ozone-depleting substances.
“The fundamental problem for EPA is that HFCs are not ozone-depleting substances, as all parties agree,” the court said. “Because HFCs are not ozone-depleting substances, Section 612 would not seem to grant EPA authority to require replacement of HFCs.”
When emitted, HFCs are nearly 15,000 times more potent than CO2. While CO2 can last up to 100 years, HFCs last only 15 years. Because of their potency, however, Obama’s enacted a ruling in 2015 to phase out those gases. And it did so using the Clean Air Act. But the court said “no,” although it did say that EPA could remove HFCs from its list of acceptable gases used in air conditioning and refrigeration.
Despite the court’s ruling, US chemical companies say that they are working to produce climate-friendly products used in refrigeration and air conditioning, all to correspond to with an agreement reached in October 2016 in Kigali, Rwanda. That’s where about 150 countries vowed to phase out HFCs beginning in 2019.
It’s all part of the 1987 Montreal Protocol to prevent the depletion of the ozone layer. The Kigali effort extends to HFCs — one that would cut them by 80% by 2047.
The Trump administration has remained silent on its legal strategy as far as any appeal goes. On the one hand, it has said that addressing global warming is not something to which it wants to allocate resources but on the other, industry has already committed to finding a replacement for HFCs.