SUPREME COURT NIXES EPA CLIMATE PROGRAM

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H. Sterling Burnett

Managing Editor, Environment & Climate News at The Heartland Institute

H. Sterling Burnett, Ph.D. is managing editor of Environment & Climate News and a research fellow for environment and energy policy at The Heartland Institute. Burnett worked at the National Center for Policy Analysis for 18 years, most recently as a senior fellow in charge of NCPA’s environmental policy program. He has held various positions in professional and public policy organizations, including serving as a member of the Environment and Natural Resources Task Force in the Texas Comptroller’s e-Texas commission.

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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.