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Circuit Strikes EPA Ban on Aerosol Chemical

By William Vogeler, Esq. on August 09, 2017 | Last updated on March 21, 2019

Somewhere in the contentious air over climate change, the Environmental Protection Agency went too far.

A federal appeals court said that happened when the EPA banned hydrofluorocarbons, a chemical found in aerosol spray cans that scientists have linked to global warming. The agency has authority to outlaw ozone-depleting chemicals, but HFC's are not ozone-depleting.

"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)," Judge Brett Kavanaugh wrote in Mexichem Fluor, Inc. v. Environmental Protection Agency.

The Montreal Protocol

The U.S. District Court of Appeals for the District of Columbia ruled in the case after Mexichem challenged an EPA rule from 2015. The agency drew on regulations following the 1987 international agreement called the Montreal Protocol.

The agreement, signed by all members of the United Nations, sought to stop depletion of the ozone layer. The global community agreed that ozone depletion threatened to expose people to more ultraviolet light, increasing the incidence of skin cancer and other harms.

Accordingly, Congress amended the Clean Air Act to regulate ozone-depleting substances. In 1994, the EPA said companies could replace such substances with products such as HFC's.

However, research later showed that HFC's created greenhouse effects that could contribute to global warming. In response, the EPA banned them in 2015.

Not Ozone-Depleting

Mexichem has used HFC's in a variety of products. It sued the EPA, saying the agency had overstepped its authority in banning them.

The DC Circuit agreed. In a 2-1 decision, the majority said HFC's are not ozone-depleting substances under the Clean Air Act.

"Although we understand and respect EPA's overarching effort to fill that legislative void and regulate HFC's, EPA may act only as authorized by Congress," Kavanaugh wrote.

Judge Robert Wilkins protested that the EPA's regulation was sensible, given the purpose of the law to prevent ozone-depleting substances and substitutes.

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