A major clarification came today from the DC Court of Appeals ordering EPA (and thus the Executive Branch Bureaucracy) to defer to Congress regarding regulation of substances claimed to cause climate change. While the issue and arguments are somewhat obscure, the clarity of the ruling is welcome. Basically, the EPA under Obama attempted to use ozone-depleting authority to regulate HFCs, claiming them as greenhouse gases. The judges decided that was a stretch too far.

The Court Decision August 8, 2017

The EPA enacted the rule in question in 2015, responding to research showing hydroflourocarbons, or HFCs, contribute to climate change.

The D.C. Circuit Court of Appeals’ 2-1 decision said EPA does not have the authority to enact a 2015 rule-making ending the use of hydrofluorocarbons commonly found in spray cans, automobile air conditioners and refrigerators. The three-judge panel said that because HFCs are not ozone-depleting substances, the EPA could not use a section of the Clean Air Act targeting those chemicals to ban HFCs.

“Indeed, before 2015, EPA itself maintained that Section 612 did not grant authority to require replacement of non ozone-depleting substances such as HFCs,” the court wrote.

“EPA’s novel reading of Section 612 is inconsistent with the statute as written. Section 612 does not require (or give EPA authority to require) manufacturers to replace non ozone-depleting substances such as HFCs,” said the opinion, written by Judge Brett Kavanaugh.

Contextual Background from the Court Document On Petitions for Review of Final Action by the United States Environmental Protection Agency Excerpts below (my bolds)

In 1987, the United States signed the Montreal Protocol. The Montreal Protocol is an international agreement that has been ratified by every nation that is a member of the United Nations. The Protocol requires nations to regulate the production and use of certain ozone-depleting substances.

As a result, in the 1990s and 2000s, many businesses stopped using ozone-depleting substances in their products. Many businesses replaced those ozone-depleting substances with HFCs. HFCs became prevalent in many products. HFCs have served as propellants in aerosol spray cans, as refrigerants in air conditioners and refrigerators, and as blowing agents that create bubbles in foams.

In 2013, President Obama announced that EPA would seek to reduce emissions of HFCs because HFCs contribute to climate change.

Consistent with the Climate Action Plan, EPA promulgated a Final Rule in 2015 that moved certain HFCs from the list of safe substitutes to the list of prohibited substitutes. . .In doing so, EPA prohibited the use of certain HFCs in aerosols, motor vehicle air conditioners, commercial refrigerators, and foams – even if manufacturers of those products had long since replaced ozonedepleting substances with HFCs. Id. at 42,872-73.

Therefore, under the 2015 Rule, manufacturers that used those HFCs in their products are no longer allowed to do so. Those manufacturers must replace the HFCs with other substances that are on the revised list of safe substitutes.

In the 2015 Rule, EPA relied on Section 612 of the Clean Air Act as its source of statutory authority. EPA said that Section 612 allows EPA to “change the listing status of a particular substitute” based on “new information.” Id. at 42,876. EPA indicated that it had new information about HFCs: Emerging research demonstrated that HFCs were greenhouse gases that contribute to climate change. See id. at 42,879. EPA therefore concluded that it had statutory authority to move HFCs from the list of safe substitutes to the list of prohibited substitutes. Because HFCs are now prohibited substitutes, EPA claimed that it could also require the replacement of HFCs under Section 612(c) of the Clean Air Act even though HFCs are not ozone-depleting substances.

EPA’s current reading stretches the word “replace” beyond its ordinary meaning. . .

Under EPA’s current interpretation of the word “replace,” manufacturers would continue to “replace” an ozone-depleting substance with a substitute even 100 years or more from now. EPA would thereby have indefinite authority to regulate a manufacturer’s use of that substitute. That boundless interpretation of EPA’s authority under Section 612(c) borders on the absurd.

In any event, the legislative history strongly supports our conclusion that Section 612(c) does not grant EPA continuing authority to require replacement of non-ozone-depleting substitutes.. . In short, although Congress contemplated giving EPA broad authority under Title VI to regulate the replacement of substances that contribute to climate change, Congress ultimately declined.

However, EPA’s authority to regulate ozone-depleting substances under Section 612 and other statutes does not give EPA authority to order the replacement of substances that are not ozone depleting but that contribute to climate change. Congress has not yet enacted general climate change legislation. Although we understand and respect EPA’s overarching effort to fill that legislative void and regulate HFCs, EPA may act only as authorized by Congress. Here, EPA has tried to jam a square peg (regulating non-ozone depleting substances that may contribute to climate change) into a round hole (the existing statutory landscape).

The Supreme Court cases that have dealt with EPA’s efforts to address climate change have taught us two lessons that are worth repeating here. See, e.g., Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014). First, EPA’s well intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate. The agency must have statutory authority for the regulations it wants to issue. Second, Congress’s failure to enact general climate change legislation does not authorize EPA to act. Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change.

Footnote: Looks like some judges found their big boy pants and applied US constitutional separation of powers against runaway executive climate actions. Would such a decision have come without a skeptical President?

Could this be the first breach in the wall of unproven, unwarranted, federally funded climate activism?