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The same judges who struck down the EPA’s ban on refrigerants that are also potent greenhouse gases may have outlined a path forward for the agency should it want to try again.
A three-judge panel in the U.S. Court of Appeals for the D.C. Circuit ruled Aug. 8 that the agency’s ban on hydrofluorocarbons, or HFCs, is invalid because it overstepped its authority. However, attorneys following this case say the court pointed out the EPA has other tools at its disposal to ban HFCs, which can trap heat in the atmosphere thousands of times more efficiently than an equivalent amount of carbon dioxide.
Nonetheless, the Aug. 8 decision is a respite for companies like Arkema and Mexichem Fluor Inc., plaintiffs in the lawsuit, that still want to manufacture the refrigerant chemicals.
Judge Brett Kavanaugh, who wrote the majority opinion, seemed to indicate that the EPA could resurrect its ban on these chemicals by other means if it wants. 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 ).
“Climate change is not a blank check for the President,” Kavanaugh wrote. “However much we might sympathize or agree with EPA’s policy objectives, EPA may act only within the boundaries of its statutory authority.”
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. “I get the sense that the majority wanted to convey that,” Collins told Bloomberg BNA.
David Doniger, an attorney with the Natural Resources Defense Council, which intervened in the case on behalf of the EPA, agreed with Collins’ interpretation but said he was still disappointed in the decision.
“It seems like there may be other routes” to ban HFCs, he told Bloomberg BNA. “But we thought that the direct path was perfectly within EPA’s authority.”
Both Doniger and Collins also said the opponents of HFCs may fare much better if this case is heard by the entire D.C. Circuit. They said the two judges in the majority on this ruling—Kavanaugh and Janice Rogers Brown—are arguably the most conservative on the 11-judge court. However, the full D.C. Circuit rarely agrees to rehear cases.
EPA spokeswoman Amy Graham told Bloomberg BNA that the agency is still reviewing the decision.
HFCs were originally developed to serve as a substitute for other refrigerants that harmed the ozone layer. In the 1990s, the EPA added them to its official list of replacement chemicals that were safe for the ozone layer.
Then, it learned that HFCs are potent greenhouse gasses, and the EPA moved in 2015 to ban their use under the same law that authorizes it to ban ozone-depleting chemicals.
By doing this, “EPA has tried to jam a square peg...into a round hole,” Kavanaugh wrote.
The court said the administration can’t use a law intended to address the ozone layer to achieve its other, unrelated goals. Forcing companies that adopted HFCs as a replacement for other chemicals to then go ahead and replace HFCs as well would be unfair, according to the opinion.
The decision dealt a blow to Honeywell International and Chemours because they have developed chemicals meant to replace HFCs.
Attorneys for both Arkema and Mexichem Fluor, which were the plaintiffs in this case, and Honeywell and Chemours, which intervened on behalf of the EPA, could not be reached in time for this story.
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The D.C. Circuit's opinion is available at http://src.bna.com/rtI.
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