• Careers
  • Blog
  • FAQ
  • Contact our team

BLOG

US Court of Appeals for District of Columbia Finds EPA Exceeded Its Authority by Using SNAP Program to Restrict Manufacturers’ Use of HFCs in Products

Ozone Layer
On August 8, 2017, the US Court of Appeals for the District of Columbia found that the EPA exceeded the authority granted it by the Clean Air Act (CAA) by issuing a rule in 2015 that used the CAA’s Significant New Alternatives Policy (SNAP) Program, which is geared toward phasing out ozone-depleting substances, to phase out hydrofluorocarbons (HFCs), which are potent greenhouse gases that do not deplete the ozone. The lawsuit centered on the meaning of the term “replace,” as that is what the 1990 Clean Air Act Amendments granted the EPA authority to do with regards to the SNAP Program’s replacement of ozone-depleting substances with substitutes identified as safe by the EPA. In 1994, the EPA identified some HFCs as a safe substitutes for certain ozone-depleting substances, and it subsequently added additional HFCs to the list of safe substitutes over the next decade. As a result, many manufacturers replaced the ozone-depleting substances they had previously used with HFCs, and HFCs became prevalent in many products. The Obama Administration’s effort to address global climate change prompted the EPA to consider ways to reduce greenhouse gas emissions. Mindful that HFCs are potent greenhouse gases, the EPA sought ways to reduce their prevalence in products. As a result, it issued a rule in 2015 that removed HFCs from the safe substitutes list and placed them on the list of prohibited substitutes. (Protection of Stratospheric Ozone: Change of Listing Status for Certain Substitutes Under the Significant New Alternatives Policy Program, 80 Fed. Reg. 42,870 (July 20, 2015)). The EPA then determined that, because HFCs were listed as prohibited substitutes, it could accordingly require manufacturers to replace HFCs with safe substitutes. The 2015 Rule was subsequently challenged by two manufacturers of a specific HFC that, under the 2015 rule, product manufacturers were restricted from using. On August 7, 2017, the U.S. Court of Appeals for the District of Columbia found that the CAA Amendments granted the EPA authority to require the replacement of ozone-depleting substances with non-ozone-depleting substances only once and that it did not grant EPA the authority to subsequently require the replacement of non-ozone-depleting substitutes previously identified as safe. As a result of the holding, the EPA may not use the 2015 Rule to require manufacturers to replace HFCs in their products with a substitute substance. The Court did not, however, answer the question of whether the EPA reasonably removed HFCs from the list of safe substances with its 2015 Rule in the first place. Mexichem Fluor v. EPA, no. 15-1328 (D.C. Cir. Aug. 8, 2017).

On the same subject