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Post date: June 27 2018

A.G. Underwood Sues EPA Over Illegal Rollback Of Key Climate Protection Regulation

News from the New York Attorney General's Office

June 27, 2018

Attorney General's Office Press Office / 212-416-8060


AG Underwood Leads Coalition of 11 AGs, Charging EPA with Illegally Seeking to Roll Back Prohibition on Powerful Climate Change Pollutants Known as Hydrofluorocarbons

HFCs are Fastest Growing Source of GHG Emissions; Original EPA Rule Would Avoid Up to 31 Million Metric Tons of GHG a Year

NEW YORK – New York Attorney General Barbara D. Underwood, leading a coalition of 11 Attorneys General, today filed suit against the Environmental Protection Agency (EPA) for seeking to illegally roll back key climate protection regulations adopted in 2015. Specifically, the coalition charges that EPA violated the federal Clean Air Act when it effectively rescinds regulations prohibiting the use of hydrofluorocarbons (HFCs) – which are extremely potent climate change pollutants – through “guidance,” rather than a public rulemaking process, as required by the law. 

Lifting limits on the use of HFCs will damage efforts to combat climate change. When it finalized its HFC rule in 2015, EPA estimated that the rule would avoid 26 to 31 million metric tons of greenhouse gases annually by 2020. A reduction of 30 million metric tons is approximately equivalent to 6.4 million passenger vehicles driven for one year, or the annual energy use for 3.2 million homes.  

“The Trump EPA is seeking to gut critical climate protection rules through the backdoor – once again endangering New Yorkers while thumbing their nose at the law,” Attorney General Underwood said. “My office will continue to fight back against the Trump Administration’s brazen disregard for rule of law, and the health, safety, and welfare of New Yorkers.”

Joining Attorney General Underwood in the lawsuit are the Attorneys General of California, Delaware, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Vermont, Washington, and the District of Columbia, and the Pennsylvania Department of Environmental Protection. 

Since 1990, the Clean Air Act has required EPA to phase out chemicals such as chlorofluorocarbons (CFCs), which destroy the earth’s ozone layer. The law included a “Safe Alternatives Policy” to ensure that when manufacturers replaced CFCs and other ozone-depleting substances in their products, their replacements would “reduce overall risks to human health and the environment.” Pursuant to this provision of the law, in 2015, EPA finalized a rule that prohibited or limited the use of HFCs as replacements for ozone-depleting substances due to their potency as climate change pollutants.  

EPA’s 2015 rule is a vital to addressing climate change. HFCs are thousands of times more potent for global warming than carbon dioxide and are the fastest growing source of emissions in the United States and globally. Controlling HFCs are also vital to New York’s goal of reducing climate change pollution emissions 80 percent by 2050, as by 2050 the chemicals will account for 25 percent of the state’s emissions.

Two manufacturers of HFCs subsequently sued EPA over the 2015 rule.  In deciding that suit, the U.S. Court of Appeals for the District of Columbia unanimously affirmed EPA’s legal authority to designate HFCs as prohibited replacements for ozone-depleting substances. However, in a split decision, the court also ruled that the Agency lacked authority to require a manufacturer that has already replaced an ozone-depleting substance with HFCs to switch to a safer alternative. The court partially vacated the rule -- solely with respect to this requirement – and remanded it back to EPA.   

In April of this year, EPA Administrator Pruitt issued a document, styled as “guidance,” that effectively rescinds the 2015 rule in its entirety. That guidance, issued without public notice and opportunity for comment, states that the Agency is voiding the HFC limits adopted in the 2015 rule “in their entirety” – including those affirmed by the D.C. Circuit court. 

EPA’s decision to void the rule completely will likely result in a significant increase in HFC emissions. For example, EPA estimated in 2016 that there are nearly 200,000 commercial refrigeration units nationwide that use ozone-depleting substances. Because of EPA’s new guidance, those units are no longer prohibited from switching to HFCs – despite the court’s explicit ruling that this aspect of the 2015 rule was lawful.  EPA has pledged to undertake a rulemaking to address the court’s decision, but has not provided any timetable for doing so.  

Today’s lawsuit was filed in the U.S. Court of Appeals for the District of Columbia Circuit and charges that Administrator Pruitt’s use of guidance to rescind the 2015 rule violates the Clean Air Act. Under the Act, the guidance is a substantive rule that required public notice and comment prior to being finalized. 

This matter is being handled for Attorney General Underwood by Senior Counsel for Air Pollution and Climate Change Litigation Michael J. Myers, Affirmative Section Chief Morgan A. Costello, Assistant Attorney General Joshua M. Tallent, and Staff Scientist Charles Silver. The Environmental Protection Bureau is led by Bureau Chief Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Matthew Colangelo.