April 7, 2020 update: We won! The D.C. Circuit ruled that EPA acted illegally in suspending the agency’s limits on the uses of super climate-polluting HFCs. The court restored a prohibition on switching from ozone depleting substances to HFCs in uses such as large refrigeration systems in supermarkets. My colleague Peter DeMarco said of the decision:
“This is an important victory for our climate. The court’s decision restores common-sense restrictions on HFC use that EPA had illegally removed. EPA must ensure that as companies complete their transition away from ozone-depleting substances, they switch to alternatives safer than climate-polluting HFCs.”
NRDC filed a lawsuit today against EPA Administrator Scott Pruitt for unlawfully revoking the agency’s limits on uses of hydrofluorocarbons (HFCs), the super-potent climate-changing pollutants used in refrigeration, air conditioning, insulation, aerosols, and other products.
Here’s the thing: the Mexichem court struck down (or, “vacated”) only part of the HFC rule. It upheld and left in place other parts of the rule. But the Administrator lifted the entire HFC rule – even the parts the court approved.
And he did it with no rulemaking. No proposal, no opportunity to comment. This is doubly unlawful.
The Administrator’s high-handed action goes way beyond the partial vacatur ordered by the court. He is giving up on limiting HFCs at all, summarily announcing that EPA “will not apply the HFC use restrictions or unacceptability listings in the 2015 Rule for any purpose” and “will implement the court’s vacatur by treating it as striking the HFC listings in the 2015 Rule in their entirety.”
Striking the valid portions of the 2015 HFC Rule through “guidance” without notice and an opportunity for public comment is a clear violation of basic administrative law.
Back in the 1990s, EPA approved HFCs as “near term” substitutes for ozone-destroying chlorofluorocarbons (CFCs) despite HFCs’ heat-trapping properties. This approval was part of EPA’s first regulations under the Section 612 of the Clean Air Act – the “Safe Alternatives Policy” – which makes it unlawful to replace an ozone-depleting substance with a harmful substitute where EPA has determined that a safer alternative is available, and directs EPA to establish and update a list of substitutes that are prohibited for specific uses, and a list of safe alternatives.
At the time, HFCs were an improvement over CFCs, which are extremely potent climate pollutants in addition to being powerful ozone depleters. But by 2015, industry had developed new alternatives with far less climate impact than HFCs.
Based on the availability of safer alternatives, in the 2015 HFC Rule EPA revised the status of HFCs by moving certain highly climate-polluting HFCs from the safe list to the prohibited list for specific uses, including aerosol propellants, motor vehicle air conditioners, supermarket refrigeration systems, vending machines, and some insulating foams.
In the Mexichem decision last August, the Court of Appeals for the D.C. Circuit unanimously affirmed EPA’s authority to change the status of a substitute from safe to prohibited, and upheld the HFC listing changes against all arbitrary and capricious challenges. But the divided panel voted 2-1 to vacate the 2015 HFC Rule “to the extent it requires manufacturers to replace HFCs with a substitute substance.”
NRDC appealed the latter ruling to the Supreme Court yesterday.
And since the litigation isn’t over yet, we asked EPA to stay the course and implement the parts of the rule that the court upheld – that is, preventing anyone still using ozone-depleting chemicals from switching to HFCs, which remain on the prohibited list. But Administrator Pruitt opted to do the opposite, issuing so-called “guidance” for implementing the Mexichem ruling that ignores the court’s actual holding and throws out the whole 2015 HFC Rule.
This unlawful action will result in more climate-changing pollution from uses of HFCs that would otherwise be prevented by the parts of the 2015 Rule left standing after the Mexichem decision. For instance, there are nearly 200,000 commercial refrigeration systems containing ozone-depleting substances still in operation. The Mexichem ruling left intact the prohibition on replacing these systems with HFCs, but EPA’s guidance lifts that prohibition and takes us backwards in the fight against climate change.
We know that the effects of climate change are being felt right now—wildfires and extreme storms grow more destructive, heatwaves grow more deadly, and the seas continue to rise. With this guidance, EPA is throwing up its hands and throwing out a perfectly good rule to limit emissions that contribute to the problem.
As long as Pruitt's EPA keeps taking lawless actions to roll back climate protections, we’ll keep filing lawsuits to stop them.