18 AGs Request Supreme Court to Confirm EPA Authority to Restrict Harmful HFCs

FOR IMMEDIATE RELEASE
July 27, 2018
Contact: Christopher Gray
christopher.gray@nyu.edu
(929)-333-6213

AGs seek to overturn a controversial appellate court decision gutting EPA’s regulatory authority

Washington, D.C.—18 attorneys general led by Massachusetts Attorney General Maura Healey have filed an amicus brief asking the Supreme Court to confirm the Environmental Protection Agency’s (EPA) authority to regulate hydroflourocarbons (HFCs).

The attorneys general join major American chemical producers and national environmental groups in seeking to overturn a divided appellate court that is “irreconcilable with Congress’ intent,” according to the AGs’ brief.

“The decision produces the incongruous result that a statute intended to reduce overall risks could now increase risks, [rendering] EPA powerless to ban chemicals that are riskier than both newer substitutes and the ozone-depleting substances themselves,” they wrote.

“Leading manufacturers have already adopted higher standards that protect the ozone layer, and now the EPA wants to pull the rug out from under them to reward companies that damage the planet with dangerous chemicals,” said AG Healey. “We’re in this case alongside major businesses and environmental groups to defend these commonsense restrictions that make our products safer and protect public health and our environment.”

In addition to Massachusetts, Attorneys General of Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Vermont, Virginia, Washington, and the District of Columbia joined in filing the brief.

BACKGROUND

Section 612 of the Clean Air Act (the ‘safe alternatives policy’) provides the EPA with the statutory authority to ban ozone depleting chemicals, replacing them with an acceptable list of substitutes. The statue prohibits replacements that are known to have “adverse effects to human health or the environment.”

The EPA has historically used its authority under the Clean Air Act to prohibit the use of previously permissible chemicals when safer alternatives become available, even when the specific risk a newly banned chemical poses to human health or the environment is not directly related to ozone depletion.

In a highly controversial decision, a divided U.S. District Court of Appeals for the D.C. Circuit ruled in Mexichem Flour vs. EPA (2017) that the EPA’s attempt to phase out the use of HFCs was not permissible because the law allows only one substitution, and HFCs were already listed as a safe substitute for previous chemicals that had a proven direct effect on ozone depletion.

In a fiery dissent, Judge Robert Wilkins called the majority decision an “extreme position” that “makes a mockery of the statutory purpose” established by congress. 

ABOUT THE STATE ENERGY & ENVIRONMENTAL IMPACT CENTER:  The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advance clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit http://www.law.nyu.edu/centers/state-impact.