Court Denies Chemours and Honeywell Petition to Overturn Ruling on HFC Ban

February 12, 2018

United States Court of Appeals for the District of Columbia Circuit has denied a petition filed by Honeywell, The Chemours Co., and the National Resources Defense Council (NRDC) appealing a summer 2017 ruling that EPA cannot ban the use of HFCs under Section 612 of the Clean Air Act. In this back-and-forth legal case, this latest iteration means that HFCs will not be banned.

How We Got Here

As part of President Obama’s 2013 Climate Action Plan, the then-president issued an executive order allowing EPA to use authority through the Significant New Alternatives Policy Program (SNAP) program of Section 612 to reduce HFC emissions. In 2015, EPA issued a rule that restricted manufacturers from making certain products that contain HFCs.

In August, 2017, following a February 2017 action from Mexichem Flour and Arkema, the court ruled 2-1 that EPA cannot ban HFCs under Section 612 of the Clean Air Act, stating that the provision was designed only to address ozone-depleting substances. The court recognized that while HFCs are among the greenhouse gases suspected of contributing to climate change, they do not deplete the ozone layer.

“EPA’s authority to regulate ozone-depleting substances under Section 612 and other statutes does not give EPA authority to order the replacement of substances that are not ozone depleting but that contribute to climate change,” the court ruled. “Congress has not yet enacted general climate change legislation. Although we understand and respect EPA’s overarching effort to fill that legislative void and regulate HFCs, EPA may act only as authorized by Congress.”

In September 2017, Honeywell, the Chemours Co., and the National Resources Defense Council (NRDC) filed a petition asking the court to review the August 2017 decision. The court declined to hear the petition in January 2018.

The Future for HFCs is Cloudy

HFCs are not looking at widespread support globally or domestically. California has previously stated that it plans to adopt the original EPA ruling.  The Kigali Amendment to the Montreal Protocol calls for a global phasedown of HFCs to approximately 15 percent of current levels of consumption by 2036. The phasedown is set to begin next year, January 1, 2019.

Air-Conditioning, Heating, and Refrigeration Institute (AHRI) has previously voiced public support for the HFC phasedown. AHRI vice president, public affairs, Francis Dietz,  said, “This decision in no way alters our industry’s commitment to the global phase down of HFCs and we are confident that avenues other than Section 612 of the Clean Air Act  exist to regulate them in the United States.”

Honeywell said through a spokesperson that it is disappointed in the court’s decision, but noted that the transition from HFCs to HFOs that reduce the greenhouse gas impact of refrigerants, aerosols, solvents, and blowing agents is already happening.