Coalition of Attorneys General Files Supreme Court Brief Alongside Major Company in Support of Higher Standards

BALTIMORE, MD (July 27, 2018) – Maryland Attorney General Brian E. Frosh today joined a coalition of 18 attorneys general in urging the U.S. Supreme Court to review a ruling by the U.S. Court of Appeals for the District of Columbia that upended the U.S. Environmental Protection Agency’s (EPA) longstanding authority under the Clean Air Act to ban dangerous substitutes, such as hydrofluorocarbons (HFCs), for ozone-depleting substances.Since 1990, the Clean Air Act has required EPA to phase out the production and use of substances that harm the Earth’s stratospheric ozone layer. The Clean Air Act’s “Safe Alternatives Policy” is designed to ensure that this phase-out of harmful ozone-depleting substances does not give rise to dangerous substitute chemicals. Under the Safe Alternatives Policy, EPA is required to publish and update lists of safe and prohibited substitutes for ozonedepleting substances.

In 2015, EPA issued a rule prohibiting certain uses of HFCs as a substitute for ozone-depleting substances. HFCs are climate super-pollutants and are commonly used in millions of consumer

products, from refrigerators and air-conditioning units to cosmetics, spray cans, and household cleaners. They are among the fastest growing sources of greenhouse gas pollution globally, with hundreds to thousands of times the global-warming potential of carbon dioxide. When EPA finalized its HFC rule in 2015, EPA estimated that the rule would prevent 26 to 31 million metric tons of greenhouse gas emissions annually by 2020. This would be the equivalent of the emissions of 6.4 million passenger cars driven per year, or the annual energy use for 3.2 million homes.

The attorneys general filed the brief in support of the Natural Resources Defense Council’s and Honeywell International Inc.’s petitions for U.S. Supreme Court review of the D.C. Circuit
Court’s decision in Mexichem v. EPA. In response to a lawsuit brought by two foreign chemical companies challenging the 2015 Rule, a divided D.C. Circuit Court panel held in that case that EPA can no longer ban all uses of a prohibited substitute under the Clean Air Act’s so-called “safe alternative policy,” no matter how poisonous, explosive, or harmful to the environment.

“Our residents and our environment must be protected from harmful chemicals,” said Attorney General Frosh. “It completely undermines the purpose of the existing common sense restrictions if equally dangerous substances are allowed to be substituted for the banned chemicals.”

The attorneys general argue in the brief that the D.C. Circuit’s ruling is legally flawed and disrupted states’ decades-long reliance on EPA’s authority to ban the use of unsafe chemical substitutes.

The court upended a strong national program that efficiently and effectively protected human health and the environment from the risks of chemical substitutes, and that promoted innovation and investment in developing safe alternatives. The attorneys general contend that the decision generated enormous uncertainty for states, their consumers, and their businesses.

Following the D.C. Circuit’s ruling, former EPA Administrator Scott Pruitt effectively rescinded the 2015 HFC rule in its entirety in April 2018. Pruitt rolled back the rule by issuing guidance,
rather than through a public rulemaking process, as required by federal law. Last month, a coalition of 12 attorneys general sued the EPA over the rollback of the HFC rule. In the lawsuit, the attorneys general allege that lifting limits on the use of HFCs will damage ongoing efforts tocombat climate change.

Joining Attorney General Frosh in filing the brief are the attorneys general of Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, by and through its Pollution Control Agency, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Vermont, Virginia, Washington, and the District of Columbia.