The chemical companies, along with the NRDC which is taking legal action separately, appealed to the U.S. Supreme Court to reverse an August 2017 decision that prevents the EPA from limiting HFC use.
U.S. Supreme Court in Washington D.C.
Yesterday HFO manufacturers Honeywell and Chemours jointly petitioned the U.S. Supreme Court to reverse an August 2017 decision that prevents the U.S. Environmental Protection Agency (EPA) from regulating HFC use – along with the Natural Resources Defense Council (NRDC), which is taking legal action separately.
In the original ruling in August 2017, a three-judge panel in the D.C. Circuit Court of Appeals decided 2-1 that the EPA cannot require companies to replace HFCs in current or future HVAC&R equipment or other applications with low-GWP alternatives under the SNAP (Significant New Alternatives Policy) program; these alternatives include natural refrigerants, as well as HFOs and HFO blends manufactured by Honeywell and Chemours.
“The decision ignores Congress’s intent in directing the EPA [under the SNAP program] to replace ozone-depleting substances with the safest available alternatives,” Honeywell said in a press release on its decision to petition the Supreme Court.
The original SNAP program was aimed at replacing ozone-depleting chlorofluorocarbons (CFCs) with a better alternative. HFCs were selected at the time, but were later found to have higher global warming potential (GWP) than CO2.
“The petition [to the Supreme Court] shows how the panel decision, if allowed to stand, will let HFCs keep fuelling dangerous climate change, increasing risks for the millions of Americans who are living through hurricanes and other extreme weather events, and experiencing many other climate impacts.”
– David Doniger, NRDC
“The petition [to the Supreme Court] shows how the panel decision, if allowed to stand, will let HFCs keep fuelling dangerous climate change, increasing risks for the millions of Americans who are living through hurricanes and other extreme weather events, and experiencing many other climate impacts,” said David Doniger, senior strategic director, climate & clean energy program at the NRDC on the climate group’s website.
In January, an Appeals Court also denied petitions for a rehearing by the full District court filed by Honeywell, Chemours and the NRDC, which were intervenors in the original case, Mexichem Fluor, Inc. v. EPA (Arkema was another plaintiff).
The EPA has not asked the Appeals Court for a rehearing but is looking at alternative methods to regulate HFCs, while U.S. Senators have also introduced bills in the legislature to allow the EPA to regulate HFCs. (For more on the ‘Policy Quagmire’ surrounding regulation of HFCs in the U.S., please check out the latest Accelerate America).
So what next?
The NRDC argues in its appeal to the Supreme Court that, “our petition argues that the majority misread the meaning of the key statutory term ‘replace’ and misconstrued other key provisions”.
The original SNAP program, under the U.S.’s Clean Air Act, was written to replace CFCs originally.
“Drawing selectively on dictionary definitions, the two-judge majority [in the original case] ruled that “replace” can only mean a “one-time occurrence”. So once a product manufacturer switches to a non-depleting substitute, “there is no ozone-depleting substance to ‘replace,’” and EPA has no further authority,” Doniger of the NRDC writes on its website.
The NRDC disagrees and writes in its writ, which can be read here, that there are many examples of continuous replacement: “If a teacher is absent for maternity leave, her students may have a succession of substitute teachers. In common usage, each substitute ‘replaces’ not only the one before, but also the original teacher.”
The appeal to the Supreme Court may well succeed if the Court decides to hear the case.
According to Politifact, the Supreme Court reversed about 70% of cases it took between 2010-15. It reversed 45% of cases on the D.C. Circuit court, which made the original ruling.