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D.C. Circuit Rejects EPA's Efforts to Ban
Hydrofluorocarbons: Part 1
September 5, 2017
A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit)
recently vacated part of an Environmental Protection Agency (EPA) rule promulgated in 2015 that would
have prohibited manufacturers from using hydrofluorocarbons (HFCs), a class of greenhouse gases
(GHGs), as substitutes for ozone-depleting substances (ODSs). Based on EPA's earlier decision to
approve HFCs as acceptable ODS substitutes in specific uses, HFCs are currently used as replacements
for ODSs in many products such as refrigerants in refrigerators and air conditioners. The court's decision
raises questions about what authority EPA could use if the agency seeks to continue to regulate HFCs and
how the United States may meet its international obligations should it ratify the Kigali Amendment to
the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), which seeks to
reduce the production and use of HFCs. Part 1 of this two-part Sidebar series provides background on the
U.S. implementation of the Montreal Protocol and analyzes the D.C. Circuit's opinion in texichent Fluot,
Inc. v. EP4. Part 2 of the series discusses the potential implications of the court's decision.
Reducing Ozone-depleting Substances (ODSs) through the Montreal
Protocol
The Montreal Protocol is an international agreement that aims to protect the stratospheric ozone layer by
phasing out the production and use of ODSs. Depletion of the stratospheric ozone layer decreases
absorption of ultraviolet solar radiation that can result in increased risks of skin cancers, cataracts, and
harm to agricultural crops and marine life. The United States ratified the Protocol in 1988 and its four
subsequent amendments with the advice and consent of the Senate. The most recent amendment to the
Protocol was adopted in October 2016 in Kigali, Rwanda. Although TIFCs are not considered ODSs,
the Kigali Amendment adds HFCs to the list of substances to be phased down under the Montreal
Protocol. According to EPA, [1]ike the ODS[s] they replaced, HFCs are potent greenhouse gases that can
be hundreds to thousands of times more potent than carbon dioxide (C02) in contributing to climate
change.... If HFC growth continues on the current trajectory, the increase in HFC emissions is projected
to offset much of the climate benefit achieved by phasing out ODS[s].
In order for the U.S. to comply with its obligations under the Montreal Protocol, Congress amended the
Clean Air Act in 1990 to regulate ODSs. With a few exceptions, Section 612 of the Clean Air Act requires
Congressional Research Service
https://crsreports.congress.gov
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