Natural Resources Defense Council, Chemours and Honeywell asks federal appeals court to reverse three-judge panel’s ruling barring the EPA from regulating HFCs.
In the absence of a response from the Environmental Protection Agency, the Natural Resources Defense Council (NRDC) announced Friday that it was asking the full federal appeals court in Washington, D.C., to rehear and reverse a three-judge panel’s ruling that bar the EPA from delisting HFC from its list of approved refrigerants.
Refrigerant manufacturers Chemours and Honeywell also asked for a reversal, according to David Doniger, director and senior attorney for NRDC’s climate and clean air program.
In the case, Mexichem Fluor, Inc. v. EPA (Arkema was another plaintiff), the U.S. Court of Appeals for the District of Columbia Circuit panel ruled 2-1 on August 8 that the EPA cannot require companies to replace HFCs designated for HVAC&R equipment or other applications with low-GWP substances under the SNAP (Significant New Alternatives Policy) program; these substances include natural refrigerants and HFOs.
NRDC, Chemours and Honeywell were intervenors in the case. Intervenors do not have as much standing as the EPA, which had until September 22 to appeal the ruling, but did not do so. However, the federal appeals court is likely to ask the agency to respond, according to Doniger.
If the full court declines to rehear the case, the parties could file an appeal to the Supreme Court.
Meanwhile, the EPA’s rules on HFCs – including the delisting of high-GWP HFCs beginning this year – remain in force until the litigation is resolved, Doniger noted.
“Left unchecked, HFCs released from equipment like air conditioners and supermarket refrigerators will cause a major rise in global temperature.”
– David Doniger, National Resources Defense Council
Doniger wrote in a blog on the NRDC website that the ruling bypassed a 1994 regulation that requires product manufacturers to switch to safer alternatives when EPA adds an existing substitute to the its prohibited list of refrigerants. EPA added a number of HFCs to that list in 2015 – a move that the panel upheld, he pointed out, adding, “That should have ended the case.”
By ruling as it did, the panel “eviscerates EPA’s Safe Alternatives program,” Doniger added. “It will even block EPA from stepping in when substitutes found to be acutely toxic – as EPA did some years ago when it stopped use of a refrigerant that caused kidney damage to exposed workers.”
HFCs, he wrote, “are the fastest-growing climate pollutants here in the U.S., and especially in the developing world, as more and more people can afford air conditioners. Left unchecked, HFCs released from equipment like air conditioners and supermarket refrigerators will cause a major rise in global temperature.”
While the ruling would appear to be a setback for low-GWP HFC replacements like natural refrigerants, several industry players said it was too soon to know its ultimate effect given the different directions the EPA can still take. In any event, several observers doubt the case can slow the momentum toward natural refrigerant technology.
If it doesn’t appeal, the EPA is required to take action consistent with the court’s decision, such as using other statutory authority to regulate HFCs, or accepting the court's restriction on HFC regulation. The EPA could use other statutory authorities to phase down HFCs, such as the Toxic Substances Control Act.
Alternatively, the EPA could explore implementing a "retroactive disapproval" of HFCs under the Clean Air Act, which the court ruled may be permissible if the EPA could explain why it is pursuing this under the current legislation.
Finally, the U.S. Congress could adjust the Clean Air Act so that it applies to HFCs as well as ODS, particularly if the Senate ratifies the Kigali Amendment.