- One bright spot in the exchange between the judges and plaintiffs occurred when Judge Brett Kavanaugh stated that originally EPA described the replacements as “safe alternatives.”
- He also examined its original intent when using the word “replace.”
On February 17, 2017, judges from the Federal Appeals Court of Washington, DC heard arguments related to the Environmental Protection Agency’s SNAP Final Rule 20 (SNAP 20). That ruling of September 26, 2016 expanded the EPA’s target list of various HFC (hydrofluorocarbon) and HFC-containing blends that were previously listed as acceptable alternative refrigerants deemed now to be unacceptable, and therefore due to be removed from use by various dates, between now and the year 2025.
Many in the HVACR industry believe this to be a significant overreach by EPA and a misreading of Sec. 612 of SNAP (Significant New Alternatives Program), one that is not sanctioned in the original language of the EPA Significant New Alternatives Policy (SNAP). Favorite gases to be removed from the market over time include R-404A, R-407B, R507A, and many more, based on application. It’s a significant challenge for all stakeholders.
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EPA views SNAP as a living, breathing document, and it defends the expanded list because of what it describes as new findings related to climate change: “HFCs are potent greenhouse gases, and although they represent a small fraction of the current total volume of GHG emissions, their warming impact is very strong,” says the ruling. EPA also says emissions of HFCs are increasing more quickly than any other greenhouse gases, and are projected to double by 2020 and triple by 2030.
In attempting to use SNAP for this purpose, EPA has exceeded its authority under that statute, the SNAP regulations, the initial SNAP rule, and prior agency practice. In the process, EPA has turned a limited program into a limitless one, Himmelfarb said.
Attorney Daniel Himmelfarb —speaking on behalf of Mexichem Fluorochemicals, Inc. — stated the main question and argument of the challenge: is the EPA allowed to use the SNAP program to ban non-ozone depleting substances that have already replaced ozone-depleting substances in particular uses? In attempting to use SNAP for this purpose, EPA has exceeded its authority under that statute, the SNAP regulations, the initial SNAP rule, and prior agency practice. In the process, EPA has turned a limited program into a limitless one.”
Mr. Himmelfarb argued that SNAP is powerless when trying to move beyond its original intent. “The SNAP Program no longer has any work to do,” Himmelfarb said, “and if EPA wants to do something about non-ozone depleting substances that have replaced ozone-depleting substances, it has to look somewhere else.”
Attorney Dustin Maghamfar argued on behalf of the Department of Justice. He contended that Section 612 is not limited to only replacing ozone-depleting substances. Section 612, he argued, is about regulating the substitutes to ozone-depleting substances. And there are other sections of title six that focus on the ozone-depleting substitutes themselves.
“Sec. 612 not only allows but requires EPA — where it finds that there are other substitutes currently or potentially available that reduce overall risk to human health and the environment — to put those on the acceptable list and to de-list, to remove as acceptable, the substitutes that pose a higher overall risk to human health and the environment. Nowhere in this statute, and certainly not in EPA’s regulations, is there a limitation to only having that authority if the substitute itself is an ozone-depleting substance,” Maghamfar said.
One bright spot in the exchange between the judges and plaintiffs occurred when Judge Brett Kavanaugh stated that originally EPA described the replacements as “safe alternatives.” He also examined its original intent when using the word “replace.”
“‘Replace’ does seem like a one-time thing. You replace the ozone-depleting substance with a safe alternative, period. Okay, now you’re telling them, ‘Actually, what we thought was safe we no longer think is safe, so you have to go back and replace the safe alternative with something else.’ That’s common parlance, I believe, on ‘replace,’” Judge Kavanaugh said. He added that the EPA’s new listing would seem to “pull the rug out” from under someone who relied on its original listing as final.
The arguments lasted a total of 48 minutes. A clerk informed me it could be a few months before a decision is reached. The wheels of justice grind slowly indeed.