In a split decision, the D.C. Circuit Court of Appeals vacated the U.S. Environmental Protection Agency’s (EPA’s) 2018 rule in which EPA decided to expand the D.C. Circuit’s partial vacatur in <a href="https://climatecasechart.com/wp-content/uploads/case-documents/2017/20170808_docket-15-1328_opinion.pdf">Mexichem Fluor, Inc. v. EPA</a> of a 2015 rule barring replacement of ozone-depleting substances with hydrofluorocarbons (HFCs), which are powerful greenhouse gases. In Mexichem, the D.C. Circuit vacated the 2015 rule to the extent that it prohibited continued use of HFCs by companies that previously switched to HFCs from an ozone-depleting substance. EPA’s 2018 rule also suspended the prohibition for companies currently using ozone-depleting substances. In ruling on the challenge to the 2018 rule, the D.C. Circuit concluded that the rule was not merely a rule that interpreted Mexichem’s partial vacatur but a legislative rule that “altered the decision’s legal effect” and required notice-and-comment rulemaking. As a threshold matter, the court found that Natural Resources Defense Council (NRDC) and one of the state petitioners (New York) each had standing based on potential injuries from climate change which were caused in part by HFC emissions and which would be redressed by restrictions on such emissions. In addition, the court found that NRDC satisfied requirements for representational standing. The court also rejected the contention that the 2018 rule was not final action. The court noted that the parties agreed that the 2018 rule was the consummation of EPA’s decision-making process, but that EPA and the intervenors argued that it was Mexichem—not the 2018 rule—that determined any legal rights or obligations or effected legal consequences. The D.C. Circuit disagreed, finding that the 2018 rule changed the rights and obligations of companies that continued to use ozone-depleting substances compared to the status quo created by Mexichem. Similarly, in determining that the 2018 rule was legislative and not interpretive, the majority found that the 2018 rule had “independent effect beyond that compelled by Mexichem” and therefore reflected EPA’s “intent to exercise its delegated legislative power.” The dissenting judge would have found that the 2018 rule was an interpretive rule because it “did no more than articulate the EPA’s view of what was required by Mexichem in the ‘near term’ and pending further rulemaking.”

Challenge to EPA's decision to suspend the 2015 final rule prohibiting or restricting certain uses of HFCs under Clean Air Act's safe alternatives policy.

Natural Resources Defense Council v. Wheeler

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D.C. Circuit Said EPA Decision to Expand Partial Vacatur of HFC Prohibition Required Notice and Comment

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United States of America

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