Appeals Court Puts Brakes on EPA's HFC Phasedown

A U.S. court struck down a regulation ending the use of HFC-134a in car air conditioners beginning with model year 2021.      Credit Shutterstock

However, over time, U.S. EPA began to learn that although not an ODS, HFCs were in fact greenhouse gases. The United States ratification is pending with the President and the Senate, and despite President Trump's withdrawal from the Paris Agreement, there is no change of policy on the Kigali Agreement.

HFCs lurk in the leaky refrigerator cases of grocery stores and air conditioners across the globe. This means that emitting a kilogram of an HFC contributes to climate change as much as a ton or more of carbon dioxide.

Interestingly enough, EPA listed HFCs as a replacement for ozone-depleting chlorofluorocarbons, or CFC, in the 1990s. For example, he said the agency may be able to use its authority through the Toxic Substances Control Act to put the ban on firmer legal footing ( Mexichem Fluor Inc. v. EPA , D.C. Cir., No. 15-1328, 8/8/17 ). Thomas Carper (D-Del.). Under that pact, the US has an obligation to phase out HFCs. The Montreal Protocol is the global treaty banning chemicals that deplete the ozone layer.

HFCs were originally developed to serve as a substitute for other refrigerants that harmed the ozone layer.

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The Obama administration tried to fix that problem by helping to negotiate the Kigali agreement and requiring companies in the U.S.to phase out HFCs as part of Obama's Climate Action Plan. Those benefits came from the estimated reduction in emissions, as well as greater efficiency and lower health costs as a result of declines in pollution.

As part of the 2015 final rule, U.S. EPA also then prohibited the use of HFCs in aerosols, motor vehicle air conditioners, commercial refrigerators and foams even if the manufacturers of these products had previously elected to replace the ODS in these products with the previously "safe" HFCs.

Brendan Collins, an environmental attorney and a partner in Ballard Spahr's Philadelphia office, said this may indicate the judges in the majority are sympathetic to the EPA's goals here. Arkema did not respond to requests for comment. "EPA would thereby have indefinite authority to regulate a manufacturer's use of that substitute".

David Doniger of the Natural Resources Defense Council (NRDC), which intervened on behalf of the EPA, said the U.S. NGO is "exploring all options for appeal".

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The ruling calls into question the USA ability to control HFCs without congressional action - something unlikely to happen because Trump opposes new regulations and Republicans are not inclined to create new ones, Wara said.

"This ruling has significant implications for our industry, and we will be monitoring the EPA's response closely", said Stephen Yurek, president and CEO, the Air-Conditioning, Heating, and Refrigeration Institute (AHRI). "The company is now reviewing the court's ruling and assessing its options, which could include an appeal of this ruling".

Wilkins thinks the court should have deferred to the EPA in this case, because the position of Congress on the SNAP program is unclear and the EPA has made "reasonable" rules in this matter. Or, they could ask the full panel of 11 D.C. Circuit Court judges to review the ruling, he said.

"We're hopeful that EPA will do the sensible thing and fight for this important rule", Lynch said.

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