Environmental policy has followed a recurrent pattern this year. Industry pushes Scott Pruitt’s EPA to undo an Obama-era protection for clean water, clean air or climate. Litigation then counteracts those rollbacks. For example, an appeals court reinstated a methane leak rule, and a lawsuit prompted EPA to stop delaying an ozone smog rule.
Those roles were reversed last week. The U.S. Court of Appeals in Washington overturned an Obama-era rule phasing down the use of hydrofluorocarbons (HFCs) — refrigerants that are extremely potent at warming the climate. In this case, Trump’s Justice Department and U.S. chemical companies had actually asked the court to uphold the rule.
{mosads}The court’s ruling may be just a temporary setback for a narrow rule. But it also highlights a more fundamental problem: Congress has failed to enact comprehensive climate legislation. That’s left EPA and the courts grappling with how to apply decades-old rules on air pollution to the emerging challenge of climate change.
First, the specifics of the HFC rule. HFCs are used widely in air conditioners and refrigerators. They are nonhazardous and do not destroy the ozone layer like the chlorofluorocarbons (CFCs) they replace. CFCs were phased out by the Montreal Protocol, which President Reagan signed in 1988 after unanimous approval by the Senate.
But HFCs are thousands of times as potent as carbon dioxide in warming the planet. That’s why over 170 nations agreed last year in Kigali, Rwanda, to amend the Montreal Protocol to phase down HFCs.
U.S.-based chemical companies like Honeywell International and Chemours have been leading the way in developing replacement compounds. Global demand for HFC replacements will likely soar as people in hot-weather countries like India become wealthier and purchase more air conditioners.
By jumpstarting a U.S. market for these compounds, EPA’s rule would have been “good for the companies and … good for the planet,” as Bloomberg’s chemicals analyst Christopher Perrella put it. Because HFCs are so potent, the rule was expected to cut U.S. emissions equivalent to 162 million metric tons of carbon dioxide per year. Why, then, did the court overturn the rule?
The two-to-one majority opinion by Judge Brett Kavanaugh recognized the merits of regulating HFC, but rejected EPA’s approach. EPA had tried to regulate HFCs under its authority to regulate ozone-depleting pollutants. That mirrored the Kigali Accord, which was crafted as an amendment to the ozone-protecting Montreal Protocol. But it meant using an ozone-protecting rule to phase down ozone-friendly but planet-warming gases. In Kavanaugh’s opinion, EPA “tried to jam a square peg … into a round hole.”
Kavanaugh pointed EPA to a way out, suggesting it could instead regulate HFCs under the Toxic Substances Control Act. That’s still a circuitous path, using a toxics act to regulate non-toxic gases that pose no direct immediate threat to human health locally.
The need for such contortions even for win-win climate rules illustrates the legislative void left by decades of congressional inaction. Congress passed the Clean Air Act in 1963, and amended it in 1990, primarily to address air pollutants that damage human health and the environment locally.
Then in 2007, the Supreme Court ruled in Massachusetts vs. EPA that the Clean Air Act obligates EPA to also address pollutants that endanger public health indirectly by warming the planet. But figuring out how to regulate non-toxic greenhouse gases under dated air pollution legislation has vexed EPA ever since. The ongoing court battles — over the Clean Power Plan, methane rules and now HFCs — all arise from that dilemma.
Climate change is the foremost environmental challenge of our time. The risks it poses to human health, the economy, cities and ecosystems dwarfs those from the pollutants originally regulated under the Clean Air Act. Addressing climate change merits congressional action, rather than waiting for EPA to continue seeking less round holes for its square pegs.
I have no illusions that the current Congress and president would enact legislation to adequately address climate change in a comprehensive fashion. Still, action is urgently needed to uphold our commitments under the Kigali Amendment and help American chemical companies prosper from their innovations.
Whether EPA finds a regulatory quick fix or Congress seizes the opportunity for consensus legislation, something must be done to protect the climate from highly potent HFCs.
Dan Cohan is associate professor of civil and environmental engineering at Rice University.
The views of contributors are their own and not the views of The Hill.