EPA Urges DC Circuit to Reverse Clean Air Rule

WASHINGTON (CN) – Taking on a Obama-era regulation meant to stop global warming, the EPA joined chemical makers Friday in urging the D.C. Circuit to throw out strict limits on greenhouse gas-emitting hydrofluorocarbons.

“This court is bound to reach the same result in Mexichem II as it did in Mexichem I,” Justice Department attorney Benjamin Carlisle argued this morning before a three-judge panel.

Mexichem I was a decision the D.C. Circuit issued in 2017, vacating portions of an EPA rule finalized two years earlier that reclassified hydrofluorocarbons, otherwise known as HFCs, as unacceptable for 25 uses. While the EPA had called for companies to substitute HFCs with safer chemicals in the manufacturing process, the D.C. Circuit ruled 2-1 that the EPA lacked such authority.

Before that ruling had even been issued in August 2017, however, the EPA issued a new proposal to ban HFCs and HFC blends in still more sectors. This rule prompted yet another petition to the D.C. Circuit by Mexichem, which produces a refrigerant HFC.

Today the EPA under President Donald Trump is no longer defending the rule, part of a larger rejection of former President Barack Obama’s climate change plan. The rule is supported, however, by companies that produce HFC substitutes.

Three such companies, Honeywell, Chemours and Boeing, all intervened in the case along with nonprofit environmental advocacy group the Natural Resources Defense Council.

Arguing on behalf of the intervenors Friday, Crowell & Morning attorney Thomas Lorenzen said that the dissent in the 2017 opinion from U.S. Circuit Judge Robert Wilkins should carry the day here.

An Obama appointee, Wilkins had said in Mexichem I that the EPA’s interpretation of Section 612 of the Clean Air Act was reasonable.

The judge was on the panel today as well and earned laughs in the courtroom for touting his earlier work: “I mean, it was an excellent dissent.”

Wilkins is the only judge from the 2017 panel to preside over today’s hearing as well. In 2017, the lead opinion was written by Judge Brett Kavanaugh, whom President Trump has since elevated to the U.S. Supreme Court.

Today, the panel consisted of Wilkins, U.S. Circuit Judges Judith Rogers and Harry Edwards, appointed by former Presidents Bill Clinton and Jimmy Carter, respectively.

Signaling that Mexichem will still prevail even with the new panel, however, Edwards said the court’s hands are tied.

“We’re bound by the law of the circuit,” he said. “We’re bound by what a prior panel said.”

Representing the Delaware subsidiary Mexichem Fluor, Mayer Brown attorney Dan Himmelfarb told the court Thursday to consider its own precedent.

Lorenzen argued meanwhile that the Mexichem I cannot be considered precedent because the court failed at the time to answer the question of jurisdiction. He said the full court should review the matter to correct the errors Wilkins identified in his dissent.

Lorenzen also said that the court has a duty here to grapple with the precise language of the law that went ignored in Mexichem I.

“There’s none of that,” Lorenzen said. “We would expect to see that in a decision.”

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