Mexichem Fluor, Inc. v. EPA

In an unpublished judgment, the D.C. Circuit Court of Appeals granted petitions for review challenging the second of two U.S. Environmental Protection Agency (EPA) rules that made certain hydrofluorocarbons (HFCs) unacceptable substitutes for ozone-depleting substances due to the HFCs’ global warming potential. The D.C. Circuit said it was bound by its 2017 opinion that held that EPA could not require manufacturers to replace HFCs they had already lawfully installed as substitutes. The court rejected the arguments of respondent-intervenors that the challenges to the substitution requirement were not timely. Although the D.C. Circuit had not expressly decided the timeliness issue in its 2017 opinion, the court concluded that the argument was barred under the doctrine of offensive issue preclusion.

Mexichem Fluor, Inc. and Arkema Inc.—manufacturers of industrial chemicals, including hydrofluorocarbons (HFCs)—filed an opening brief in their challenge to a 2016 EPA rule that expanded a ban on using HFCs and HFC blends as replacements for ozone-depleting substances. In a 2015 rule, EPA previously had classified HFCs and HFC blends as unacceptable for 25 uses pursuant to the Significant New Alternatives Program (SNAP) under Clean Air Act Section 612; the 2016 rule extended the ban to other sectors. In 2017, the D.C. Circuit ruled that EPA acted outside its authority in promulgating the 2015 rule. In their brief concerning the 2016 rule, the manufacturers said the 2017 decision was controlling and that the 2016 rule was “invalid insofar as the ban applies to those who have already replaced ozone-depleting substances.” The manufacturers also argued that jurisdictional arguments raised by respondent-intervenors were foreclosed by stare decisis and collateral estoppel, and that, in any event, the arguments lacked merit.