A Federal court ruled Tuesday that the EPA cannot use a provision in the Clean Air Act that prohibits the emission of ozone depleting gases to also prohibit gases that cause climate change.
Passed in 1990 amidst scares the ozone was disappearing, the Clean Air Act contains a provision under section 612 giving the EPA full jurisdiction to require companies to phase out and continually replace “ozone-depleting” substances. At the time, this largely meant the phasing out of CFCs or chlorofluorocarbons such as hair spray that had been deemed by scientists to be the culprit causing the hole in the ozone to widen.
Forced to find substitutes, most companies switched from CFCs to HFCs or hydrofluorocarbons, which don’t deplete the ozone but are one of the most potent greenhouse gases that retain heat in the atmosphere contributing to climate change.
Under the Obama administrations crackdown on climate change, the EPA had been regulating the emission of HFCs under the same provision, forcing companies to continually “replace” harmful substances. But two of the three judges on the appeals court panel disagreed with the agency’s reading of the term “replace.”
“EPA’s current reading stretches the word ‘replace’ beyond its ordinary meaning,” Judge Brett Kavanaugh wrote for the court, joined by Judge Janice Rogers Brown. Both were nominated to the court by former President George W. Bush.
“EPA’s authority to regulate ozone-depleting substances under Section 612 and other statutes does not give EPA authority to order the replacement of substances that are not ozone depleting but that contribute to climate change,” the court said.
Ozone depletion and climate change are two separate issues and rather than try to push through new legislation that may not pass, former President Obama utilized the loophole to try to include as many climate change-inducing substances under the ozone regulations as possible. The court did say that HFCs could be removed from the list of acceptable substances for companies to use if they haven’t already phased out ozone depleting gases.
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