The blows to a national HFC phase down plan just keep coming. It was announced today that the Supreme Court would NOT be reviewing the HFC Refrigerant court case. This appeal to the Supreme Court was the last resort to those companies and organizations who wished to see the Environmental Protection Agency’s 2015 SNAP Rule 20 stay in affect. This 2015 rule specifically targeted HFC refrigerants and put forth a plan of action to phase down and eventually phase out these Global Warming refrigerants. The original rule can be found by clicking here.
Upon the announcement of the EPA’s new rules two companies, Mexichem & Arkema, sued stating that the EPA had overstepped it’s authority. Mexichem & Arkema’s motivations for this lawsuit were strictly a stalling tactic while they came up with their own HFC alternatives, but the case still went to court nonetheless. In August of 2017 the Federal Circuit Court ruled against the Environmental Protection Agency stating that the EPA had overstepped it’s authority. As a reference, the foundation of the EPA’s Rule 20 referenced Chapter VI, 6, of the Clean Air Act. The title of this chapter is called, ‘Stratospheric Ozone Protection’ Herein lies the problem. This section of the Clean Air Act, and frankly the Montreal Protocol, focused on Ozone depleting refrigerants such as CFCs and HCFCs. These refrigerants contained Chlorine and the Chlorine is what damaged the Ozone. Without the Chlorine we have no damage to the Ozone. HFC refrigerants do not contain Chlorine and thusly cannot be phased down or out using a piece of legislation that is strictly focused on Ozone depleting substances. HFCs DO contribute go Global Warming though and are considered a Greenhouse Gas. Two very different and distinct problems.
The Federal judge who made this ruling was Brett Kavanaugh. (Some of you may have heard of this name before!) Everyone had expected the court to rule with the EPA so when this ruling came out the industry was taken aback. No one really knew what to do with the news. It only took a few weeks for an appeal to be filed by Honeywell, Chemours, and other organizations. Their appeal argued that the SNAP Rule 20 was ‘well founded,’ and that the Federal Court’s ruling was going against the foundation of the EPA’s SNAP program. Their second argument is just funny in my book. Honeywell and Chemours argued that they had already invested too much money into their new HFO refrigerants and that that was reason enough to rule in their favor.
Despite their best efforts, the appeal did not grant them any traction and the appeal was lost in early 2018. A few months later in the summer of 2018 Honeywell, Chemours, and the NRDC (National Resource Defense Council) petitioned the Supreme Court to hear the HFC refrigerant case. The decision on that potential hearing was announced today. Much to the disappointment of many within the industry, the Supreme Court will NOT be hearing this case.
Now, I love a good irony. I don’t care what your politics are, life is funny sometimes. The Judge who started all of this back in 2017 was Brett Kavanaugh. He was the one who made the initial ruling. And now, here we are over a year later, and the case ends up in the Supreme Court where Mr. Kavanaugh was just sworn into last week. I didn’t see that coming this time last year, that’s for sure. The good news is this that Mr. Kavanaugh had no part in the Supreme Court’s decision today. If this would have come up later this year chances are he would have recused himself from the case. This is normal tradition for Supreme Court Justices who have a case that they previously worked in a lower court come to them in the high court.
Something worth noting here is that the Supreme Court was asked to not review this HFC case by the Trump Administration. This is because of the new HFC rule that is being worked on by the Environmental Protection Agency. There aren’t any details yet on what the new EPA HFC refrigerant policy will be. Will it be close to what we had in 2015? Or, will it be gutted and we will be left with no actionable plan to phase down HFCs? Only time will tell here. I for one am anxious to see what the new rules will look like.
States to the Rescue
Don’t worry folks, there’s good news too! A lot of you may have already heard about this or read some of my articles from last month, but recently there has been a big push for individual States to come up with their own plans to phase down HFC refrigerants. This all started in California and as they began to adopt and pass their laws and regulations we began to see other States pick up the torch. In September we had New York announce that they would be enacting phase down plans and in that same month we had Maryland and Connecticut announce their intentions as well.
All of these states are part of what’s known as the ‘United States Climate Alliance.’ This alliance is a gathering of States that formed after the Trump Administration pulled out of the Paris Climate Accord last year. There are seventeen States in this alliance and so far four have already announced HFC phase down plans. It is only a matter of time before we see others move forward with their own plans.
If this trend continues we may not even need a formal Federal HFC policy. Instead, we’ll rely on the States to make the right decision and like a snowball going downhill it will pick up speed and size until the whole of the country is on board. Those left behind will be forced to comply due to attrition.
Thanks for reading,