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The U.S. Supreme Court rejected a lawsuit challenging an August 2017 ruling, written by Justice Brett Kavanaugh when he was a judge on the DC Circuit Court of Appeals, which struck down a 2015 U.S. Environmental Protection Agency (EPA) regulation banning the use of hydroflourocarbons (HFC), a coolant used in refrigerators and air conditioners, as a greenhouse gas.
HFCs replaced chlorofluorocarbons as a refrigerant when the latter were banned under the Montreal Protocol and subsequently regulated under the Clean Air Act in response to fears they were contributing to a thinning of the ozone layer. HFCs do not harm the ozone layer. Under President Barack Obama, however, EPA attempted to stretch the Montreal Protocol’s limits on ozone-depleting chemicals to justify a ban on HFCs as a powerful greenhouse gas.
HFC manufacturers sued to overturn EPA’s regulation, arguing the Montreal Protocol did not regulate greenhouse gases and the agency’s ban therefore went beyond its legal authority.
As a judge on the appeals court, Kavanaugh, who did not participate in the Supreme Court’s decision not to take up the case, agreed with the manufacturers, authoring a ruling overturning EPA’s HFC regulation.
“[T]he fundamental problem for EPA is that HFCs are not ozone-depleting substances,” wrote Kavanaugh for the court in its August 8, 2017 ruling. “EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate.
“Under the Constitution, congressional inaction does not license an agency to take matters into its own hands. … EPA may act only within the boundaries of its statutory authority. Here, EPA exceeded that authority,” Kavanaugh wrote.