United States Court of Appeals, District of Columbia Circuit
February 17, 2017
Petitions for Review of Final Action by the United States
Environmental Protection Agency
Himmelfarb argued the cause for petitioners. With him on the
joint briefs were John S. Hahn, Roger W. Patrick, Matthew A.
Waring, William J. Hamel, W. Caffey Norman, T. Michael
Guiffré, and Kristina V. Foehrkolb.
J. Maghamfar, Attorney, U.S. Department of Justice, argued
the cause for respondent. On the brief were John C. Cruden,
Assistant Attorney General, Elizabeth B. Dawson, Attorney,
U.S. Department of Justice, and Jan Tierney and Diane
McConkey, Attorneys, U.S. Environmental Protection Agency.
A. Lorenzen argued the cause for intervenors The Chemours
Company FC, LLC, and Honeywell International Inc. in support
of respondent. With him on the brief were Robert J. Meyers,
Sherrie A. Armstrong, Jonathan S. Martel, and Eric A. Rey.
Doniger, Benjamin Longstreth, Melissa J. Lynch, and Emily K.
Davis were on the brief for intervenor Natural Resources
Defense Council in support of respondent.
Before: Brown, Kavanaugh, and Wilkins, Circuit Judges.
Opinion for the Court filed by Circuit Judge Kavanaugh, with
whom Circuit Judge Brown joins, and with whom Circuit Judge
Wilkins joins as to Part I and Part III.
KAVANAUGH, CIRCUIT JUDGE
separation of powers and statutory interpretation issue that
arises again and again in this Court is whether an executive
or independent agency has statutory authority from Congress
to issue a particular regulation. In this case, we consider
whether EPA had statutory authority to issue a 2015 Rule
regulating the use of hydrofluorocarbons, known as HFCs.
to EPA, emissions of HFCs contribute to climate change. In
2015, EPA therefore issued a rule that restricted
manufacturers from making certain products that contain HFCs.
HFCs have long been used in a variety of familiar products -
in particular, in aerosol spray cans, motor vehicle air
conditioners, commercial refrigerators, and foams. But as a
result of the 2015 Rule, some of the manufacturers that
previously used HFCs in their products no longer may do so.
Instead, those manufacturers must use other EPA-approved
substances in their products.
statutory authority for the 2015 Rule, EPA has relied on
Section 612 of the Clean Air Act. 42 U.S.C. § 7671k.
Section 612 requires manufacturers to replace
ozone-depleting substances with safe substitutes.
fundamental problem for EPA is that HFCs are not
ozone-depleting substances, as all parties agree. Because
HFCs are not ozone-depleting substances, Section 612 would
not seem to grant EPA authority to require replacement of
HFCs. Indeed, before 2015, EPA itself maintained that Section
612 did not grant authority to require replacement
of non-ozone-depleting substances such as HFCs. But in the
2015 Rule, for the first time since Section 612 was enacted
in 1990, EPA required manufacturers to replace
non-ozone-depleting substances (HFCs) that had previously
been deemed acceptable by the agency. In particular, EPA
concluded that some HFCs could no longer be used by
manufacturers in certain products, even if the manufacturers
had long since replaced ozone-depleting substances with HFCs.
novel reading of Section 612 is inconsistent with the statute
as written. Section 612 does not require (or give EPA
authority to require) manufacturers to replace
non-ozone-depleting substances such as HFCs. We therefore
vacate the 2015 Rule to the extent it requires manufacturers
to replace HFCs, and we remand to EPA for further proceedings
consistent with this opinion.
1980s, an international movement developed to combat
depletion of the ozone layer. Depletion of the ozone layer
exposes people to more of the sun's harmful ultraviolet
light, thereby increasing the incidence of skin cancer, among
other harms. The international efforts to address ozone
depletion culminated in the Montreal Protocol, an
international agreement signed in 1987 by the United States
and subsequently ratified by every nation in the United
Nations. The Protocol requires signatory nations to regulate
the production and use of a variety of ozone-depleting
substances. Montreal Protocol on Substances that Deplete the
Ozone Layer, opened for signature Sept. 16, 1987, S.
Treaty Doc. No. 100-10, 1522 U.N.T.S. 29.
implemented U.S. obligations under the Montreal Protocol by
enacting, with President George H.W. Bush's signature,
the 1990 Amendments to the Clean Air Act. Those amendments
added a new Title VI to the Clean Air Act. Title VI regulates
VI identifies two classes of ozone-depleting substances:
"class I" and "class II" substances. 42
U.S.C. § 7671a(a), (b). Section 612(a), one of the key
provisions of Title VI, requires manufacturers to replace
those ozone-depleting substances: "To the maximum extent
practicable, class I and class II substances shall be
replaced by chemicals, product substitutes, or alternative
manufacturing processes that reduce overall risks to human
health and the environment." Id. §
7671k(a). With a few exceptions, Title VI requires
manufacturers to phase out their use of some ozone-depleting
substances by 2000, and to phase out their use of other
ozone-depleting substances by 2015. Id. §§
manufacturers stop using ozone-depleting substances in their
products, manufacturers may need to replace those substances
with a substitute substance. Under Section 612(a), EPA may
require manufacturers to use safe substitutes when the
manufacturers replace ozone-depleting substances.
Id. § 7671k(a).
implement the Section 612(a) requirement that ozone-depleting
substances be replaced with safe substitutes, Section 612(c)
requires EPA to publish a list of both safe and prohibited
Within 2 years after November 15, 1990, the Administrator
shall promulgate rules under this section providing that it
shall be unlawful to replace any class I or class II
substance with any substitute substance which the
Administrator determines may present adverse effects to human
health or the environment, where the Administrator has
identified an alternative to such replacement that -
(1) reduces the overall risk to human health and the
(2) is currently or potentially available.
The Administrator shall publish a list of (A) the substitutes
prohibited under this subsection for specific uses and (B)
the safe alternatives identified under this subsection for
Id. § 7671k(c). In short, Section 612(c)
requires EPA to issue a list of both authorized and
prohibited substitute substances based on the safety and
availability of the substances.
the lists of safe substitutes and prohibited substitutes are
not set in stone. Section 612(d) provides: "Any person
may petition the Administrator to add a substance to the
lists under subsection (c) of this section or to remove a
substance from either of such lists." Id.
§ 7671k(d). In other words, if EPA places a substance on
the list of safe substitutes, EPA may later change its
classification and move the substance to the list of
prohibited substitutes (or vice versa).
1994, EPA promulgated regulations to implement Section
612(c). See Protection of Stratospheric Ozone, 59
Fed. Reg. 13, 044 (Mar. 18, 1994). At the time, EPA indicated
that once a manufacturer has replaced its ozone-depleting
substances with a non-ozone-depleting substitute, Section
612(c) does not give EPA authority to require the
manufacturer to later replace that substitute with a
different substitute. EPA explained that Section 612(c)
"does not authorize EPA to review substitutes for
substances that are not themselves" ozone-depleting
substances covered under Title VI. EPA Response to Comments
on 1994 Significant New Alternatives Policy Rule, J.A. 50.
known as HFCs, are substances that contain hydrogen,
fluorine, and carbon. When HFCs are emitted, they trap heat
in the atmosphere. They are therefore "greenhouse
gases." But HFCs do not deplete the ozone layer. As a
result, HFCs are not ozone-depleting substances covered by
Title VI of the Clean Air Act. Instead, HFCs are potential
substitutes for ozone-depleting substances in
1994, acting pursuant to its authority under Section 612(c),
EPA concluded that certain HFCs were safe substitutes for
ozone-depleting substances when used in aerosols, motor
vehicle air conditioners, commercial refrigerators, and
foams, among other things. See Protection of
Stratospheric Ozone, 59 Fed. Reg. at 13, 122-46. Over the
next decade, EPA added HFCs to the list of safe substitutes
for a number of other products. See, e.g.,
Protection of Stratospheric Ozone: Listing of Substitutes for
Ozone-Depleting Substances, 68 Fed. Reg. 4004, 4005 (Jan. 27,
2003); Protection of Stratospheric Ozone; Listing of
Substitutes for Ozone-Depleting Substances, 64 Fed. Reg. 22,
982, 22, 984 (Apr. 28, 1999).
result, in the 1990s and 2000s, many businesses stopped using
ozone-depleting substances in their products. Many businesses
replaced those ozone-depleting substances with HFCs. HFCs
became prevalent in many products. HFCs have served as
propellants in aerosol spray cans, as refrigerants in air
conditioners and refrigerators, and as blowing agents that
create bubbles in foams.
time, EPA learned more about the effects of greenhouse gases
such as HFCs. In 2009, EPA concluded that greenhouse gases
may contribute to climate change, increasing the incidence of
mortality and the likelihood of extreme weather events such
as floods and hurricanes. See Endangerment and Cause
or Contribute Findings for Greenhouse Gases Under Section
202(a) of the Clean Air Act, 74 Fed. Reg. 66, 496, 66, 497-98
(Dec. 15, 2009).
2013, President Obama announced that EPA would seek to reduce
emissions of HFCs because HFCs contribute to climate change.
Executive Office of the President, The President's
Climate Action Plan 10 (2013). The President's Climate
Action Plan indicated that "the Environmental Protection
Agency will use its authority through the Significant New
Alternatives Policy Program" of Section 612 to reduce
HFC emissions. Id.
with the Climate Action Plan, EPA promulgated a Final Rule in
2015 that moved certain HFCs from the list of safe
substitutes to the list of prohibited substitutes. Protection
of Stratospheric Ozone: Change of Listing Status for Certain
Substitutes Under the Significant New Alternatives Policy
Program, 80 Fed. Reg. 42, 870 (July 20, 2015) [hereinafter
Final Rule]. In doing so, EPA prohibited the use of certain
HFCs in aerosols, motor vehicle air conditioners, commercial
refrigerators, and foams - even if manufacturers of those
products had long since replaced ozone-depleting substances
with HFCs. Id. at 42, 872-73.
under the 2015 Rule, manufacturers that used those HFCs in
their products are no longer allowed to do so. Those
manufacturers must replace the HFCs with other substances
that are on the revised list of safe substitutes.
2015 Rule, EPA relied on Section 612 of the Clean Air Act as
its source of statutory authority. EPA said that Section 612
allows EPA to "change the listing status of a particular
substitute" based on "new information."
Id. at 42, 876. EPA indicated that it had new
information about HFCs: Emerging research demonstrated that
HFCs were greenhouse gases that contribute to climate change.
See id. at 42, 879. EPA therefore concluded that it
had statutory authority to move HFCs from the list of safe
substitutes to the list of prohibited substitutes. Because
HFCs are now prohibited substitutes, EPA claimed that it
could also require the replacement of HFCs under Section
612(c) of the Clean Air Act even though HFCs are not
Fluor and Arkema are businesses that make HFC-134a for use in
a variety of products. The 2015 Rule prohibits the use of
HFC-134a in certain products. The companies have petitioned
for review of the 2015 Rule. They raise two main arguments.
First, they argue that the 2015 Rule exceeds
EPA's statutory authority under Section 612 of the Clean
Air Act. In particular, they contend that EPA does not have
statutory authority to require manufacturers to replace HFCs,
which are non-ozone-depleting substances, with alternative
substances. Second, they allege that EPA's
decision in the 2015 Rule to remove HFCs from the list of
safe substitutes was arbitrary and capricious because EPA
failed to adequately explain its decision and failed to
consider several important aspects of the problem. We address
those arguments in turn.
first consider whether Section 612 of the Clean Air Act