Eleven states sue EPA for voiding HFC regulation

New York Attorney General Barbara D. Underwood, leading a coalition of 11 Attorneys General, on Wednesday filed suit in the U.S. Court of Appeals for the District Columbia Circuit against the U.S. Environmental Protection Agency (EPA) challenging its decision to completely void 2015 regulations pertaining to the use of HFCs.

The coaltion includes Attorneys General from 10 states (New York, California, Delaware, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Vermont and Washington) plus the District of Columbia; the Pennsylvania Department of Environmental Protection also joined the action.

The coaltion charges that the EPA violated the federal Clean Air Act in April when it issued a guidance completely rescinding regulations enacted in 2015 under the Significant New Alternatives Policy (SNAP) program that prohibited the use of HFCs in certain applications by certain dates. The EPA, the suit alleges, needed to go through a public rulemaking process "as required by law" before it had the authority to rescind those regulations. The EPA did initiate this rulemaking process, but only after issuing the guidance.

The guidance was the EPA's response to a lawsuit filed by Mexichem Fluor and Arkema,  Mexichem Fluor, Inc. v. EPA, also in the U.S. Court of Appeals for the District Columbia Circuit.  A three-judge panel of that court ruled 2-1 last August that the EPA lacked authority to require a manufacturer that already replaced an ozone-depleting substance like R22 with HFCs to then switch again to a safer alternative such as a natural refrigerant. But the court more broadly affirmed the EPA's authority to designate HFCs as prohibited replacements for ozone-depleting substances in cases where those substances were still in use.

In its guidance, however, the EPA said it lacked the authority to prohibit HFCs in all cases.

"The Trump EPA is seeking to gut critical climate protection rules through the backdoor – once again endangering New Yorkers while thumbing their nose at the law," said Underwood in a statement. "My office will continue to fight back against the Trump Administration's brazen disregard for rule of law, and the health, safety and welfare of New Yorkers."

The original SNAP program was aimed at replacing ozone-depleting CFCs and HCFCs with a non-ozone-depleting alternative. HFCs were selected at the time, but were later found to have very high global warming potentials (GWPs). Alternatives like ammonia, CO2 and hydrocarbons are being used instead of HFCs.

“Communities across our state are already spending millions fighting the impacts of climate change,” said Massachusetts Attorney General Maura Healey, in a separate statement.  “Throwing out these common-sense restrictions on this potent pollutant is contrary to the law and science, and it is disruptive to the manufacturers that have invested in alternatives. We are suing to protect the health of our residents and the planet.”

This week chemical companies and an environmental group also announced they had appealed the D.C. Court’s ruling to the Supreme Court.

The states’ decision to sue the EPA ratchets up the pressure on the U.S. to take action on phasing down HFCs at federal level.

During May and June, industry groups, Republican Senators and conservative groups urged President Trump in separate letters to refer to the Senate for ratification the global HFC agreement known as the Kigali Amendment to the Montreal Protocol.

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