Mexichem Fluor, Inc. v. EPA

Natural Resources Defense Council (NRDC) filed a petition for writ of certiorari in the Supreme Court seeking review of the D.C. Circuit decision striking down key components of the U.S. Environmental Protection Agency (EPA) final rule prohibiting or restricting use of certain hydrofluorocarbons (HFCs) as replacements for ozone-depleting substances due to the HFCs’ high global warming potential. NRDC had intervened to defend the rule in the D.C. Circuit. NRDC’s petition presented the question of “[w]hether EPA has authority under Section 612 to prohibit use of dangerous but non-ozone-depleting substitutes by any person, including by product manufacturers who began using such substitutes before EPA placed them on the prohibited list.” NRDC also argued that the D.C. Circuit majority’s interpretation was at odds with the statute and destroyed a “core Clean Air Act program.”

EPA joined manufacturers of hydrofluorocarbon (HFC) refrigerants in opposing Supreme Court review of the D.C. Circuit’s August 2017 decision striking down a 2015 EPA regulation that prohibited or restricted use of certain HFCs as replacements for ozone-depleting substances due to the HFCs’ high global warming potential. EPA told the Court that the case did not warrant Supreme Court review. EPA said that while it argued before the D.C. Circuit that it had authority to issue the 2015 regulation, it had revisited the issue and “now believes that the decision below reflects the better understanding” of the Clean Air Act provision at issue in the case. EPA said the question presented therefore was “of limited prospective importance” and also indicated that “[s]ome of petitioners’ concerns, moreover, may be addressed in an upcoming EPA rulemaking.”

HFC manufacturers argued that certiorari was not warranted because (1) the D.C. Circuit’s decision did not conflict with any decision of any court, (2) the question presented was not sufficiently important, and (3) the D.C. Circuit’s decision was correct.

Five of the leading U.S. manufacturers of heating, ventilation, air conditioning and commercial refrigeration (HVACR) equipment filed a brief in support of the petitioners, asserting that the D.C. Circuit’s decision had “torn up” a “well-established and reasonable path toward new, environmentally safer alternatives” and “created enormous uncertainty and associated costs.”

The challenge to EPA’s final rule prohibiting or restricting use of certain hydrofluorocarbons (HFCs) under its Significant New Alternatives Policy (SNAP) program by a manufacturer of composite preform products used in the marine and transportation industries was held in abeyance while EPA considers the manufacturer’s request for reconsideration. In May, the parties reported that EPA was still considering the merits of the manufacturer's petition for reconsideration and expected to take final action resolving the issues raised in the petition no later than February 22, 2017.

The D.C. Circuit Court of Appeals denied petitions for panel rehearing and rehearing en banc of the court’s August 2017 decision vacating the U.S. Environmental Protection Agency’s (EPA’s) rule prohibiting use of hydrofluorocarbons (HFCs) as replacement for ozone-depleting substances under EPA’s Significant New Alternatives Policy program. HFCs are powerful greenhouse gases. Rehearing was sought by Natural Resources Defense Council and by two companies that had developed “new and better substitutes” for ozone-depleting substances. The court said that a majority of judges eligible to participate did not vote in favor of the rehearing en banc petitions and noted that Judges Millett and Katsas did not participate. The petitions for panel rehearing were denied because the current panel of two judges was equally divided. The third judge on the panel, Judge Brown, retired on August 31, 2017. She joined the entirety of the majority opinion, including the portion vacating the HFC prohibition.