09/26/2022 - Biden Administration Status Update

International Climate Agreements—The Kigali Amendment, COP26, and Other Agreements

by David Kidd, JD 2023, Hannah Perls

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The Kigali Amendment and Regulating Hydrofluorocarbons

By Hannah Perls

Following Congress’ passage of legislation to phase down the use of HFCs, EPA finalized rules implementing the requirements, which are now being litigated. On Sep. 21, 2022, the Senate voted 69 to 27 to ratify the Kigali Amendment.

Hydrofluorocarbons (HFCs) are among the most potent greenhouse gases, with thousands of times more warming potential than carbon dioxide over the short term. In 2016, the international community adopted the Kigali Amendment to the 1987 Montreal Protocol to cut the production and consumption of HFCs, which requires the US and other industrialized nations to reduce HFC consumption by 85 percent by 2036 based on usage rates between 2011 and 2013, thereby avoiding up to 0.5 degrees Celsius in global warming by 2100.[1] In Executive Order 13990, President Biden directed the secretary of state to prepare a submittal package for the Senate to approve the Kigali Amendment. The White House sent the package to the Senate for ratification on November 16, 2021, and the Senate Foreign Relations Committee voted on May 4, 2022 to send the treaty for a ratification vote by the full Senate. On Sep. 21, 2022, the Senate voted 69 to 27 to ratify the Kigali Amendment.

The Senate’s bipartisan ratification of the Kigali Amendment is symbolically significant and could spur further international action to address HFCs and other greenhouse gases. In the US, the ratification has little practical effect because Congress already acted in 2020 to reduce HFCs; on December 22, 2020, Congress directed an 85 percent phase down from a baseline period between 2011-2013 in the production and consumption of HFCs by 2036, consistent with the Kigali Amendment, as part of the American Innovation and Manufacturing (AIM) Act.[2] The act directs EPA to implement the phasedown by issuing tradable production and consumption allowances. On May 19, 2021, EPA published a proposed rule to implement that mandate, followed by a final rule published on October 5, 2021.[3] EPA also announced that it would grant, or partially grant, eleven petitions submitted under the AIM Act to restrict HFCs in various manufacturing sectors.

Refrigerant makers and contractors have challenged EPA’s final rule and litigation is ongoing in the DC Circuit.[4] Petitioners argue that the final rule exceeds EPA’s authority under the AIM Act because the rule seeks to regulate HFC blends, and that the AIM Act itself represents an unconstitutional delegation of legislative authority.[5] Petitioners filed their briefs on April 1, 2022, and oral argument is scheduled for Nov. 18, 2022.

For more, see our Regulatory Tracker page on Hydrofluorocarbons and the Kigali Amendment.

[1] U.N. Indus. Dev. Org., The Montreal Protocol evolves to fight climate change, https://www.unido.org/our-focus-safeguarding-environment-implementation-multilateral-environmental-agreements-montreal-protocol/montreal-protocol-evolves-fight-climate-change (last visited Feb. 1, 2022) [https://perma.cc/FWE3-BKGH].

[2] American Innovation and Manufacturing Act of 2020 § 103, 42 USC. § 7675.

[3] Phasedown of Hydrofluorocarbons: Establishing the Allowance Allocation and Trading Program Under the American Innovation and Manufacturing Act, 86 Fed. Reg. 27,150 (May 19, 2021); Phasedown of Hydrofluorocarbons: Establishing the Allowance Allocation and Trading Program Under the American Innovation and Manufacturing Act, 86 Fed. Reg. 55,116 (Oct. 5, 2021) (codified at 40 C.F.R. pts. 9, 84).

[4] Heating, Air-Conditioning, & Refrigeration Dist. Intl. (HARDI) v. EPA, No. 21-1251 (D.C. Cir.) (consol. with RMS of Georgia, LLC v. EPA, No. 21-1253 (D.C. Cir.) and Worthington Ind. Inc. V. EPA, No. 21-1252 (D.C. Cir.)).

[5] Pet’r’s Non-Binding Statement of Issues, Heating, Air-Conditioning, & Refrigeration Dist., v. EPA, Docket No. 21-01251 (D.C. Cir. Dec. 2, 2021).

COP26 and Other International Commitments

By David Kidd (JD 2023) and Hannah Perls

The US rejoined the Paris Agreement and made several non-binding commitments at the COP26 in Glasgow addressing greenhouse gas emissions and international financing.

On his first day in office, President Biden committed to rejoining the Paris Agreement. Leading up to the annual conference of the parties (COP26), held in Glasgow in November 2021, the US released an ambitious nationally determined contribution (NDC), pledging to reduce national greenhouse gas emissions 50 to 52 percent from 2005 levels by 2030. At COP26, the US made additional promises, including phasing down coal, halting and reversing deforestation, slashing global methane emissions, and working more closely with China to enhance climate action.

These commitments reflect new global ambitions to comply with the Paris Agreement and achieve other environmental goals. However, they include few accountability metrics and no enforcement mechanisms. Only the Paris Agreement’s procedural processes—including submitting an updated NDC every five years and reporting national progress at each COP—are legally binding on the signatories, not the substantive obligations. For the treaty to create domestically enforceable, substantive obligations for the US government, it would have to be ratified by two-thirds of the Senate. Given current Congressional dynamics, ratification is highly unlikely.[6] Nevertheless, the US’ commitments signal to the international community that the executive branch is newly committed to addressing climate change.

The Biden administration has also doubled its commitment to fulfill a promise made at the Copenhagen Summit in 2009 (COP15), where wealthy nations committed to providing “developing nations” with $100 billion in climate finance funding per year by 2020. That promise has not been met, and to-date, the US has contributed a total of $1 billion to the Green Climate Fund. In September 2021, President Biden pledged to work with Congress to raise at least $11.4 billion per year by 2024 for the fund. However, Congress has yet to appropriate the requested funds, most recently approving roughly $1 billion in international climate finance as part of the 2022 omnibus spending package. Most of those funds are for emission mitigation projects.[7]

For more information on the Paris Agreement, see our Regulatory Tracker page on the Paris Climate Agreement. Also see our analysis on US Regulatory Barriers to An Ambitious Paris Agreement Commitment.

[6] In the US, plaintiffs have attempted to surpass these enforcement limitations by bringing rights-based claims that rely on the US’ NDC and other international commitments to force the federal government to reduce its emissions more rapidly. See e.g. Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020). However, it is unlikely that federal courts will agree with these claims given the Senate has not ratified the Paris Agreement.

[7] Sara Schonhardt, US Spending For Global Climate Response ‘Pitifully Too Low’, E&E News, Mar. 14 2022, https://www.eenews.net/articles/u-s-spending-for-global-climate-response-pitifully-too-low/.