The Supreme Court Declines Review of an Invalidated EPA Regulation on Greenhouse Gases One Day After Climate Scientists Urge Immediate Action

By Julie Yedowitz

On Tuesday, the Supreme Court declined to review an Environmental Protection Agency (“EPA”) regulation created under the Obama Administration banning the use of hydrofluorocarbons (“HFCs”) by manufactures.[1] The D.C. Circuit Court of Appeals struck down the rule banning hydrofluorocarbons in August of 2017.[2] The opinion was written by newly sworn Supreme Court Justice, Brett Kavanaugh.[3] The EPA regulation was premised on Section 612 of the Clean Air Act which calls for a “safe alternatives policy” to ozone-depleting substances.[4] The Court of Appeals concluded that because HFCs are not considered ozone-depleting substances, the EPA could not rely on Section 612.[5] Kavanaugh wrote for the majority reasoning that while HFCs are considered greenhouse gases that trap heat in the atmosphere, they are not considered ozone-depleting substances and were rather listed by the EPA previously as substitutes for ozone-depleting substances.[6] However, in the 2015 rule, the EPA had moved HFCs that were previously substitutes for ozone-depleting substances to the list of prohibited substances under Section 612(c).[7] The key question centered on whether manufacturers who initially used HFCs as a safe alternative were now obligated to replace HFCs after the EPA determined they were an ozone-depleting substance.[8] The Court of Appeals held that they were not and struck down the 2015 EPA regulation.[9]

The Supreme Court’s denial to review the case came one day after the Intergovernmental Panel on Climate Change urged immediate action to combat climate change effects that scientist warned would be seen as early as 2040.[10] The report indicated that if greenhouse gas emissions continued to rise at their current rate, there would be a 2.7 degrees Fahrenheit increase in the atmospheric temperature.[11] The Trump Administration has stated that it will “revisit the issue” of HFC regulations and has indicated that the D.C. Circuit properly decided the issue in 2017.[12] In the petition filed by the Natural Resource Defense Council, the organization argued that the Circuit’s decision deprives the EPA of the ability to mitigate climate change and encourage the implementation of safer products.[13] Furthermore, it was argued that the holding of the D.C. Circuit discourages industries from investing in safe alternatives.[14] Nevertheless, the Nation will have to wait for the Trump Administration to “revisit the issue” with its new HFC regulation in light of the alarming report published by Intergovernmental Panel on Climate Change.

 

[1] Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017).

[2] Miranda Green, Supreme Court declines to hear appeal in greenhouse gas case rules on by Kavanaugh, The Hill (Oct. 9, 2018), https://thehill.com/policy/energy-environment/410590-scotus-wont-hear-appeal-of-greenhouse-gas-case-ruled-on-by (last visited Oct. 9, 2018).

[3] Keith Goldberg, High Court Won’t Review Invalidation of EPA Rule for HFCs, Law 360 (Oct. 9, 2018), https://www.law360.com/environmental/articles/1090235/high-court-won-t-review-invalidation-of-epa-rule-for-hfcs (last visited Oct. 9, 2018).

[4] Mexichem Fluor, 866 F.3d at 453.

[5] Id. at 454.

[6] Id. at 455.

[7] Id.

[8] Id. at 458.

[9] Id. at 464.

[10] Coral Davenport, Major Climate Report Describes a Strong Risk of Crisis as Early as 2040, The N.Y. Times (Oct. 7, 2018), https://www.nytimes.com/2018/10/07/climate/ipcc-climate-report-2040.html (last visited Oct. 9, 2018).

[11] Id.

[12] Goldberg, supra note 3.

[13] Id.

[14] Id.

3 comments

  1. The lack of concern for such a serious issue is outrageous. Hopefully this issue will be revisited after the upcoming midterm elections. Alternatively, in the absence of government regulation, private market forces may cause manufacturers to replace HFCs with substitutes for ozone-depleting substances.

  2. The Court needs to accept the scientific evidence presented to them and change the interpretation of law to include harmful chemicals that are damaging the environment. Now that the democrats have control of the House of Representatives, I hope environmental protection will be one of their primary objectives.

  3. I wonder how this decision relates to the Montreal Protocol. The Montreal Protocol is known to be most successful international treaty banning CFCs to protect the ozone layer. It goes through revisions every few years, so I wonder if this decision is now placing the US in non-compliance. This is very unfortunate since the treaty is preventing skin cancer by protecting the ozone layer.

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