Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
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.
To contact the reporter on this story: David Schultz in Washington at email@example.com
To contact the editor responsible for this story: Rachael Daigle at firstname.lastname@example.org
The D.C. Circuit's opinion is available at http://src.bna.com/rtI.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)