Montreal Protocol Hydrofluorocarbons Kigali Agreement

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Why it Matters

Hydrofluorocarbons (HFCs) were thought to be an acceptable substitute for ozone layer-depleting chlorofluorocarbons (CFCs), which the Montreal Protocol sought to phase out. But it is now understood that HFCs have a high global warming potential and their continued use contributes to climate change. The Kigali Amendment to the Montreal Protocol seeks to phase out them out as well.

Current Status

The Kigali Agreement has not yet entered into force. A recent court ruling casts doubt on the Environmental Protection Agency’s (EPA) ability to consider climate change when regulating HFCs, under existing law. However, environmentalists and industry supporters are filing a petition to have the case heard in the Supreme Court.

In April, 2018 EPA published a Notice of Guidance regarding the Significant New Alternatives  Policy (SNAP) Program to “dispel confusion and provide regulatory certainty for stakeholders affected by EPA’s Significant New Alternatives Policy program final rule” from July, 2015 and says that EPA “Will not apply the HFC listings in the 2015 Rule, pending a rulemaking.”

California, however, has adopted regulations prohibiting the use of HFCs “to preserve and continue in California some of the U.S. Environmental Protection Agency’s (U.S. EPA) prior prohibitions on HFCs.”

History

On July 20, 2015 EPA finalized a rule to reconsider a list of acceptable substitutes for ozone-depleting chemicals, saying “Global warming potential (GWP) is one of several criteria EPA considers in the overall evaluation of the alternatives under the SNAP [significant new alternatives policy] program.” Instead of just having an “acceptable” list, EPA would now designate chemicals as unacceptable; acceptable subject to use; or acceptable subject to narrow use, “based on information showing that other substitutes are available for the same uses that pose lower risk overall to human health and the environment.” It changed the status of many uses of HFCs from “acceptable” to “unacceptable.”

On September 17, 2015 Industry sued EPA over the rule, saying the Clean Air Act program authorizing action is about ozone depletion, not climate change, and that EPA had therefore overstepped its authority. – Mexichem Flour v. EPA, No. 15-1328.

On October 15, 2016 the international community reached agreement on the Kigali Amendment to the Montreal Protocol, to phase out HFCs because of their global warming potential.

Trump Era

On April 3, 2017 Mali became the first country to ratify the amendment; 20 countries must ratify before the agreement can enter into force on January 1, 2019.

On August 8, 2017 The D.C. Circuit vacated (cancelled) EPA’s HFC rule on the grounds — in effect —  that Title VI of the Clean Air Act only allows EPA to list “acceptable” chemicals based on their inability to deplete the ozone layer. EPA may not consider climate change when listing chemicals. This could affect the United States’ ability to meet the Kigali Amendment under current authorities.

On September 22, 2017 a coalition of environmental and industry groups petitioned the court for a rehearing. Soon after, multiple states filed a motion requesting an invitation to file a brief in support of the request for a rehearing.

On January 26, 2018 the D.C. Circuit declined to rehear the case.

In March, 2018 the coalition of environmental and industry groups said they will file a petition to have the case heard in the Supreme Court, which they must do by June 25, 2018.

On March 23, 2018 the California Air Resources Board announced California has adopted regulations prohibiting the use of HFCs “to preserve and continue in California some of the U.S. Environmental Protection Agency’s (U.S. EPA) prior prohibitions on HFCs.”

On April 27, 2018 EPA published a Notice of Guidance regarding the Significant New Alternatives  Policy (SNAP) Program to “dispel confusion and provide regulatory certainty for stakeholders affected by EPA’s Significant New Alternatives Policy program final rule” from July, 2015 and says that EPA “Will not apply the HFC listings in the 2015 Rule, pending a rulemaking.”

On June 4, 2018, thirteen GOP senators sent a letter to President Trump urging him to send the Kigali Amendment to the Montreal Protocol to the Senate for its advice and consent. The letter notes that the Montreal Protocol “has enjoyed bipartisan support since its inception” and highlights that 589,000 U.S. employees would benefit from the Kigali Amendment.

For More Information

For more on the history of this rule see the Columbia University Sabin Center for Climate Change Law’s database. Also see Sabin’s Climate Deregulation Tracker for additional updates.

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