DC Circuit Strikes Down Critical Rule in Climate Fight

WASHINGTON (CN) – Striking down limits on the use of hydrofluorocarbons, a chemical found in aerosol spray cans that scientists have linked to global warming, the D.C. Circuit ruled Tuesday that federal regulators exceeded their authority.

The Environmental Protection Agency enacted the rule at issue in 2015, responding to research showing HFCs, as the chemical is known, contributes to climate change.

Tuesday’s ruling — which U.S. Circuit Judge Brett Kavanaugh wrote for a 2-1 panel — ties the rule to a 1987 international agreement called the Montreal Protocol that sought to stop the depletion of the ozone layer.

When the EPA published a list in 1994 of safe alternatives companies could consider when replacing their ozone-depleting products, it included a number of HFCs.

Kavanaugh, a President George W. Bush appointee, says many businesses took the guidance to mean that the greenhouse gas was a safer alternative to ozone-depleting products, only to come into conflict two decades later with the 2015 rule.

Mexichem Fluor and Arkema, two chemical companies that produce HFCs, brought the underlying challenge against the rule, arguing that the EPA does not have authority to require companies to replace a chemical the EPA already told them was safe.

In vacating the rule Tuesday, the appellate majority unraveled the EPA’s semantics-leaning argument, which insisted that companies do not replace a chemical only when they first choose to switch to a new option, but rather do so each time they use the new chemical in their product.

To the EPA, companies are still replacing their ozone-depleting chemicals with HFCs today, even if they made the decision to switch 20 years ago.  

Kavanaugh found that logic unworkable, pointing out that “President Obama did not ‘replace’ President Bush” whenever he entered the Oval Office after his inauguration. Reading the law the EPA’s way would give it nearly limitless power to regulate companies under Section 612 of the Clean Air Act, Kavanaugh wrote.

“Under EPA’s current interpretation of the word ‘replace,’ manufacturers would continue to ‘replace’ an ozone-depleting substance with a substitute even 100 years or more from now,” Kavanaugh wrote. “EPA would thereby have indefinite authority to regulate manufacturer’s use of that substitute. That boundless interpretation of EPA’s authority under section 612(c) borders on the absurd.”

Circuit Judge Robert Wilkins, a President Barack Obama appointee, shot back at this in a 19-page dissent, saying there are definitions of the word “replace”  that fit better with the law and make the EPA’s argument sensible. Wilkins said he would have denied the companies’ petition for review entirely.

Writing for the majority, Kavanaugh noted the EPA has other ways to curb the use of HFCs, but that Congress has not yet passed a law that would allow the agency to regulate substances that contribute to climate change but don’t deplete the ozone layer.

“Although we understand and respect EPA’s overarching effort to fill that legislative void and regulate HFCs, EPA may act only as authorized by Congress,” Kavanaugh wrote. “Here, EPA has tried to jam a square peg (regulating non-ozone-depleting substances that may contribute to climate change) into a round hole (the existing statutory landscape).” (Parentheses in original.)

Kavanaugh also gave the EPA another avenue to explore, noting that the agency mentioned “in passing” in its brief that it might be able to retroactively find companies’ replacement of ozone-depleting chemicals with HFCs unlawful based on new evidence.

But that section of the EPA’s argument was so short that it will have to determine whether it has such authority when it considers the rule on remand.

Circuit Judge Janice Rogers Brown, also a George W. Bush appointee, joined Kavanaugh’s opinion.

Arkema did not immediately respond to requests for comment on the decision. A representative for Mexichem declined to comment. An EPA spokesperson said the agency is “reviewing the decision.”

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