EPA Finalizes Regulations that Phase Down the Use of Potent Greenhouse Gases

Last fall we blogged about a proposed rule from the U.S. Environmental Protection Agency (EPA) that would walk back deadlines for phasing down the use of hydrofluorocarbons (HFCs). 

For the uninitiated: HFCs are chemicals used largely as refrigerants (but also in the manufacture of semiconductors) that have greenhouse gas effects that are hundreds of times as potent as carbon dioxide.            

The EPA on May 26 finalized that rule.  It should surprise no one that the final rule mirrors the proposed rule.

On the other hand, the history of these regulations is remarkable.

Here’s why:

In 2015 and 2016, EPA under the Obama Administration promulgated regulations intended to phase down the use of HFCs, citing section 612 of the Clean Air Act as its authority for the regulations. 

However, section 612 deals with ozone-depleting substances only, and HFCs do not deplete ozone. Consequently, those regulations were challenged in court and struck down in 2017.

In late 2020, Congress passed a bill that authorized EPA to promulgate regulations to impose a gradual, nationwide phase down on the production and consumption of HFCs, which President Trump signed into law. 

That law contemplated that federal regulations limiting the production and consumption of HFCs were to be promulgated following a “negotiated rulemaking” among EPA and stakeholders but also permitted EPA to forego the “negotiated rulemaking” based on petitions submitted to it.

To be clear, in this context it is fair to conclude that “negotiated rulemaking” means that industry writes the rules.

Under the Biden Administration EPA chose to forego the “negotiated rulemaking” and instead promulgated regulations in 2023 that limited the production and consumption of HFCs based on 12 petitions that were submitted by stakeholders, including state governments, environmentalists, and industrial producers and users of HFCs. 

These petitions generally sought to reinstate the requirements of the 2015 and 2016 Obama era regulations.

“The pendulum has swung back to where it was in 2020,” GASP Senior Attorney John Baillie said.  “The history of the HFC regulations shows not only that it is important to follow the law, but also that what one president can do with the stroke of a pen, the next president can undo the same way.”