On Jan. 26, 2018, the United States Court of Appeals for the District of Columbia Circuit declined petitions for rehearing of its August 8, 2017 ruling that the United States Environmental Protection Agency (EPA) did not have authority under its Significant New Alternatives Policy (SNAP) program to ban the use of HFCs.
The Court’s original decision stated that EPA’s legal right to regulate replacement refrigerants and foam blowing agents under SNAP is limited to their effect on ozone depletion and not global warming potential. The delisting of certain HFCs does not replace ozone depleting substances (i.e. CFCs and HCFCs). On September 22, 2017 petitions for rehearing were filed by several intervening parties, but not by EPA itself. The Court has now denied these petitions and issued a mandate sending Rule 20 back to EPA. This action officially invalidates HFC delistings published in Rule 20 in July of 2015. Interested parties may attempt one final appeal through the Supreme Court but this appeal process does not affect the current mandate.
This decision also affects SNAP Rule 21, published in December of 2016. A legal challenge on Rule 21 was being held in abeyance pending the outcome of the Court’s decision on Rule 20. Since the arguments would apply equally to both Rules, it is expected that Rule 21 will follow the same path.
Arkema continues to be a strong supporter of reducing HFC emissions, which includes the development and use of low Global Warning Potential (GWP) HFCs and HFOs. We believe that any effort to require use of lower GWP alternatives should be holistic and should establish an overall cap while giving customers the flexibility to pick the best products for an efficient, and safe transition without market disruptions as experienced with past transitions – these critical elements were missing with the current use of the SNAP program. Like many in the U.S. industry, Arkema supports the recently negotiated Kigali Amendment to The Montreal Protocol (the Kigali Agreement) as the correct vehicle to achieve this goal. It creates a clear framework of a regulation rather than a patchwork of application and product-specific regulations.
Arkema believes that the Court’s action paves the way for a safe, practical and efficient transition to the next generation of refrigerants and foam blowing agents that will benefit our industry and the environment, while allowing the market to select the best products and technologies.