09/27/2017 - Regulatory Rollback

Hydrofluorocarbons and Kigali Amendment to Montreal Protocol

by EELP Staff

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

Hydrofluorocarbons (HFCs) were thought to be an acceptable substitute for ozone layer-depleting chlorofluorocarbons (CFCs), which the Montreal Protocol sought to phase out. It is now understood that HFCs, despite not being listed as ozone-depleting chemicals by the Environmental Protection Agency (EPA), have a high global warming potential and their continued use contributes to climate change. The Kigali Amendment to the Montreal Protocol seeks to phase out HFCs by cutting emissions by 10 percent in 2019 and 40 percent in 2024, finally phasing them down to 15 percent of 2011-13 levels by 2036. Ratification of the Kigali Amendment would protect the ozone layer and could avoid up to 0.5 degree Celsius of global temperature rise by 2100. Even absent ratification of the Kigali Amendment, domestic regulations could also phase out HFCs in the United States.

Current Status

Jan. 1, 2019 The Kigali Amendment enters into force after it was ratified by 65 countries. The United States has yet to ratify the amendment.

History

July 20, 2015 EPA finalizes a rule to reconsider a list of acceptable substitutes for ozone-depleting chemicals, saying “Global warming potential (GWP) is one of several criteria EPA considers in the overall evaluation of the alternatives under the SNAP [Significant New Alternatives Policy] program.” Instead of just having an “acceptable” list, EPA will now designate chemicals as unacceptable; acceptable subject to use; or acceptable subject to narrow use, “based on information showing that other substitutes are available for the same uses that pose lower risk overall to human health and the environment.” It changed the status of many uses of HFCs from “acceptable” to “unacceptable.”

Sep. 17, 2015 Industry sues EPA over the rule, saying the Clean Air Act program authorizing action is about ozone depletion, not climate change, and that EPA has therefore overstepped its authority. Mexichem Flour v. EPA, No. 15-1328.

Oct. 15, 2016 The international community reaches agreement on the Kigali Amendment to the Montreal Protocol, to phase out HFCs because of their global warming potential.

Trump Era

April 3, 2017 Mali becomes the first country to ratify the Kigali Amendment. Over 50 countries have now ratified the amendment, which means it can enter into force on Jan. 1, 2019. The United States has yet to ratify the amendment.

Aug. 8, 2017 The D.C. Circuit vacates (cancels) EPA’s HFC rule on the grounds — in effect —  that Title VI of the Clean Air Act only allows EPA to list “acceptable” chemicals based on their inability to deplete the ozone layer. EPA may not consider climate change when listing chemicals. Mexichem Flour v. EPA, No. 15-1328.

March 23, 2018 The California Air Resources Board adopts regulations prohibiting the use of HFCs “to preserve and continue in California some of the EPA’s prior prohibitions on HFCs.” New York, Maryland, and Connecticut have since proposed similar state-level regulations to phase out HFCs.

April 27, 2018 EPA publishes a Notice of Guidance regarding the Significant New Alternatives  Policy (SNAP) Program to “dispel confusion and provide regulatory certainty for stakeholders affected by EPA’s Significant New Alternatives Policy program final rule” from July 2015, and says that EPA “will not apply the HFC listings in the 2015 Rule, pending a rulemaking.”

June 4, 2018 Thirteen GOP senators send a letter to President Trump urging him to send the Kigali Amendment to the Senate for its advice and consent. The letter notes that the Montreal Protocol “has enjoyed bipartisan support since its inception” and highlights that 589,000 U.S. employees would benefit from the Kigali Amendment.

June 25, 2018 Two chemical manufacturers and National Resources Defense Council file a petition for writ of certiorari in the U.S. Supreme Court seeking review of the D.C. Circuit decision in Mexichem Flour v. EPA, which struck down key components of the EPA final rule prohibiting or restricting use of certain HFCs. The brief filed by the Department of Justice revealed that EPA changed its stance and now believes that it lacks the authority to require a phase-out of HFCs.

Sep. 18, 2018 The Environmental Protection Agency (EPA) issues a proposed rule, Protection of Stratospheric Ozone: Revisions to the Refrigerant Management Program’s Extension to SubstitutesThe agency is proposing to rescind a 2016 modification of provisions that regulate repair, maintenance, and disposal of appliances containing ozone-depleting substances. The 2016 modification extended the regulations to cover appliances using substitute refrigerants such as hydrofluorocarbons (HFCs). The EPA is now taking the position that it does not have the authority to extend these provisions to substitute refrigerants. The proposed rule also requests public comment on rescinding other provisions that were extended to substitute refrigerants. This proposal would not affect the requirements for ozone-depleting refrigerants. Comments on the proposal are due on Nov. 15, 2018 submitted directly to regulations.gov.

Oct. 9, 2018 The Supreme Court declines to hear the appeal of the case challenging the legality of the Obama administration’s rule that aimed to phase out HFCs in the United States. This makes final the D.C. Circuit’s decision in Mexichem Flour v. EPA, No. 15-1328. In 2017, the D.C. Circuit struck down the phase-out rule and ruled that EPA could not consider climate change when listing chemicals as acceptable for use, because it was beyond the scope of the relevant Clean Air Act provision.