The Montreal Protocol Is Not a Climate Change Statute

Earlier this week, the D.C. Circuit Court of Appeals struck down part of an EPA rule promulgated pursuant to the Montreal Protocol.  The section that was struck down would have required manufacturers of HFC-134a, which is not ozone-depleting and which had previously been determined by EPA to be an acceptable replacement for ozone-depleting compounds, to find other replacements, because EPA determined in 2015 that HFC-134a did not “reduce overall risks to human health and the environment.”  Why?  Because HFC-134a is a potent greenhouse gas.

There’s been a lot of commentary about this decision from both sides of the aisle.  I think it’s all overblown and I think that the decision is correct under the “Give me a break” theory of statutory interpretation.

On the merits, the Court concluded that, because HFC-134a had previously been deemed less risky, and because HFC-134a had long ago “replaced” ozone-depleting substances, it’s continued use could not reasonably be considered to be “replacing” anything.  The Court thus struck down the rule on the basis of step one of Chevron.  I’m with the Court on this one.  The dissent just seems to tie itself in knots in order to find an ambiguity in the statute so it can get to step 2 of Chevron.

I’ll go further on the Chevron question.  I think it would be a mistake for environmentalists who support this rule because it would be environmentally beneficial to go too far.  If the dissent were to prevail here, it would only add legitimate fuel to the fire that those who oppose Chevron are trying to set.  If there’s an ambiguity here, it’s difficult to conceive of many statutes that aren’t ambiguous, leaving all interpretation to agencies.  That’s not supposed to be what Chevron is about, though it is what Chevron’s critics say it is about. Supporters of Chevron should not be giving ammunition to its critics.

On the implications of the decision, I’d advise everyone to calm down.  Conservatives are excited and liberals concerned because Judge Kavanaugh stated that “climate change is not a blank check for the President.”  For those who believe in the rule of law, that should hardly be a controversial statement.

On the other hand, perhaps liberals should be excited and conservatives concerned, because Judge Kavanaugh had no problem affirming EPA’s underlying judgment that climate change provided a sufficient to determine that HFC-134a would not, going forward, be seen as a safe substitute for ozone-depleting substances.  He also identified several other statutory regimes that might provide EPA with authority to regulate existing uses of HFC-134a.

The case really is not that broad.  All the majority opinion does is preclude EPA from determining retroactively that HFC-134a was not a safe replacement.  As a result, EPA may not require those who used HFC-134a to replace ozone-depleting compounds, because EPA told them that they could, to find another substitute.

Everyone on both sides may now pause and take a deep breath.

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