Ozone treatment is climate scourge—Northeastern states to ban use of hydrofluorocarbons

Joining a growing chorus of states, many northeastern states including Massachusetts, Maine and Rhodes island, recently announced their intentions to ban the use of hydrofluorocarbons (HFCs). Upcoming regulatory actions by these states are generally expected to follow an HFC ban rulemaking model established by members of the US Climate Alliance.[1] It remains to be seen, however, whether states will seek additional regulatory options, as it was a global product ban in the late 1980s that inadvertently set the stage for now restricting HFC-containing alternatives due to their climate-enforcing potential. as a greenhouse gas. (GHG).

1. Record

Many HFCs were developed in whole or in part as replacements for chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs) and halons. The latter group of products has been widely blamed for blowing a hole in the Earth's protective ozone layer and allowing the Sun's harmful ultraviolet (UV) rays to reach Earth unhindered. Left unchecked, the perhaps self-evident problem with this is that “[o]zone is the Earth's natural sunscreen, absorbing most of the incoming [UV] radiation from the sun and protecting life from DNA-damaging radiation.”

Global environmental problems (i.e, exposure to DNA-damaging radiation), usually require global action. Consequently, countries banned the use of CFCs and HCFCs with the adoption of the Montreal Protocol in 1987. Montreal Protocol phase out the production and consumption of these ozone-depleting substances.

HFCs became the replacement product of choice soon after countries began implementing the Montreal Protocol and are expected to grow in use. However, the use of HFCs as a product replacement therapy quickly met with criticism. HFCs are a very potent form of GHGs, which absorb and trap infrared radiation or heat in the Earth's lower atmosphere. Many of the world's nations found this alarming enough to propose an amendment to the Montreal Protocol.

In 2016, an amendment to the Montreal Protocol to phase out the use of HFCs was approved in Kigali, Rwanda. In particular, the Kigali amendment called on participating countries to “…to reduce HFC production and consumption by more than 80 percent over the next 30 years.” Subsequently, the US Environmental Protection Agency (EPA) took rulemaking action to implement the Kigali Amendment in the United States by banning the use of certain HFCs in certain end uses. However, these lawsuits quickly became mired in litigation over whether the EPA had the underlying legal authority for its course of action. Ultimately, in a decision later upheld by the US Supreme Court, the D.C. Circuit Court of Appeals partially struck down the EPA rule, including the partial ban on HFCs in certain end uses.[2] Federal case closed.

2. Enter the States

Unwilling to wait for further federal action, Massachusetts, Maine, and Rhode Island are joining a group of other states (e.g, California, Vermont, Washington, Connecticut, Delaware, and New York) that have either revived or announced their intention to revive the EPA end-use ban on certain HFCs at the individual state level. All states appear to be following a path laid out through the United States Climate Alliance, which would ban certain HFCs in certain end-use categories (e.gaerosols, foams, air conditioning, cooling, etc.) gradually over a period of time, provided that the use of alternative products is feasible. Draft regulations to implement the bans are expected in the spring and summer of 2020 Massachusetts and Rhodes islandrespectively? Maine is seeking additional state legislation first, with regulatory action expected to follow.

3. State and regulated community issues

For now, we can assume that there may be exceptions and nuances to individual state regulatory proposals. However, the end result is currently expected to be a ban or prohibition of certain HFCs under certain circumstances. States choosing to step into the vacuum that may have been left by federal inaction and the regulated community should consider whether there are other possible regulatory approaches and strategies that can achieve the same or better results in reducing greenhouse gases, perhaps more fairly and effectively on a state-by-state level to ban HFCs. A few things to keep in mind about this:

• Federal inaction is not a foregone conclusion, and the DC Circuit certainly left the door open for further regulatory action by the EPA.[3]
• States could adopt reasonable labeling and warning measures for products containing HFCs.
• States could offer product rebates and incentives for product substitution and proper disposal;
• States could fund enhanced operator and maintenance training for equipment containing HFCs. This can be particularly useful for the end-use categories of refrigeration, chillers and similar equipment.
• States could take steps to use their own purchasing power to further restrict the purchase of products containing HFCs that they now seek to ban. For example, many states already have “environmentally preferred marketPolicies that could be updated to better align with state targets for HFCs.
• States could develop broader market-based compliance options. Take Massachusetts for example. The Massachusetts Global Warming Solutions Act authorizes, among other things, the state to use “market-based compliance mechanisms” to address climate change concerns.[4] Key to such an approach will be the appropriate pricing of CO₂ emissions in any market.[5] It is certainly no small task. Just CO₂ it has been priced, however, while perhaps still complicated, one would think that market pricing could be extended to other GHGs such as HFCs. Indeed, the EPA has already published a “Greenhouse Gas Equivalents Calculator” allowing estimated CO equivalence calculations₂

Bans are certainly an option in the regulatory toolbox and can be effective over time. As we have seen, however, they can also have undesirable environmental consequences. The use of any one or a combination of the above measures could better provide stakeholders with an improved degree of regulatory certainty, as well as overall success in reducing greenhouse gas emissions.

[1] The US Climate Alliance is a bipartisan coalition of state governors seeking to reduce greenhouse gas emissions to levels set in the Paris Agreement. Principles of AllianceUS Climate Alliance,http://www.usclimatealliance.org/alliance-principles> (last visited March 16, 2020). The US Climate Alliance is pursuing a “short-term climate pollutant challenge” aimed at significantly reducing these types of pollutants, which include compounds such as methane, HFCs and black carbon. SLCP challengeUS Climate Alliance http://www.usclimatealliance.org/slcpchallenge> (last visited March 27, 2020).

[2] Mexichem, Fluor. v. EPA866 F.3d 451 (D.C. Cir. 2017); rehearing en banc denied (CADC 15-1328) (January 26, 2018); certificate. den., Honeywell Intern. Inc. v. Mexichem Fluor Inc., 139 S.Ct. 322, (Oct. 09, 2018); and certificate. den., Natural Resources Defense Council v. Mexichem Fluor, Inc., 139 S.Ct. 322 (Oct. 09, 2018).

[3] Mexichem866 F.3d 451, 460 (noting several available statutory authorities to regulate HFCs).

[4] MGL c. 21N, § 7.

[5] By analogy, ISO New England has already concluded for the electricity sector that “[p]Coal under a competitive market structure is the simplest, easiest and most effective way to rapidly reduce greenhouse gas emissions…. In addition, putting a realistic price on carbon would allow consumers to pay accurate, competitive prices without the risk of paying for sunk costs.” Regional Electricity Outlook 2020ISO-NE at 24https://www.iso-ne.com/static-assets/documents/2020/02/2020_reo.pdf> (last visited March 27, 2020).