Hydrofluorocarbons (HFCs): EPA and State Actions

May 7, 2020

Hydrofluorocarbons (HFCs): EPA and State Actions

Many fluorinated and chlorinated substances, including

hydrofluorocarbons (HFCs) and chlorofluorocarbons

(CFCs), are potent greenhouse gases (GHGs). Multiple

scientific assessments conclude that anthropogenic GHGs

(e.g., carbon dioxide [CO2], HFCs, and CFCs) have been a

major driver of observed climate change since 1950.

Recent legislative proposals—S. 2754, the American

Innovation and Manufacturing Act of 2019, and H.R. 5544,

the American Innovation and Manufacturing Leadership

Act of 2020—would establish a schedule to reduce

domestic HFC production and consumption. S. 2754 and

H.R. 5544 would require implementation by the U.S.

Environmental Protection Agency (EPA) and an 85%

reduction by 2036 compared to a 2011-2013 baseline.

Background

HFCs are used in air conditioning, refrigeration, foam

blowing agents, insulation, and other applications. HFCs

were first manufactured in the context of efforts to reduce

damage to the earth’s stratospheric ozone layer.

Stratospheric ozone absorbs harmful incoming solar

radiation, and it also affects the earth’s climate. HFCs are

referred to as “substitute refrigerants” under Clean Air Act

(CAA) Title VI regulations, because EPA approved HFCs

as replacements for CFCs and other more potent ozone

depleting substances (ODS).

Title VI of the CAA represents the United States’ primary

response domestically to abate stratospheric ozone

depletion caused by manufactured chemicals. Title VI

contains a phase-out schedule for ODS as well as several

implementing strategies to avoid releases of ODS to the

atmosphere, such as an allowance trading program;

requirements for labeling, recovery, and recycling of ODS;

a program to approve safer substitutes for ODS; and

certification requirements for technicians who service

equipment containing ODS.

To address HFC emissions and their projected effect on

climate change, EPA promulgated changes to the regulatory

requirements for HFCs under Title VI of the CAA. The

2015 and 2016 rulemakings, discussed further below, have

been subject to legal challenges to EPA’s authority to

regulate HFCs under CAA Title VI. (For more about EPA’s

authority to regulate HFCs, see CRS Legal Sidebar

LSB10155, D.C. Circuit Rejects EPA’s Efforts to Ban

Hydrofluorocarbons: Part 2.)

Title VI also implements U.S. international responsibilities

under the Montreal Protocol on Substances that Deplete the

Ozone Layer (and its amendments). International

cooperation to phase down CFCs and other ODS has been

effective under the Montreal Protocol. Given the global

nature of HFCs and other GHGs emissions, efforts to

effectively address climate change will likely need to occur

on a global scale. In 2016, nearly 200 nations, including the

United States, agreed to the Kigali Amendment to the

Montreal Protocol, which contains commitments to phase

down global production and consumption of HFCs because

they are potent GHGs that substitute for ODS controlled

under the protocol. The United States is a party to the

Montreal Protocol. As of May 2020, the United States is not

party to the Kigali Amendment.

Absent mitigation actions, global HFC emissions and

consumption are projected to increase, especially in

developing countries as demand is expected to rise for

cooling services that would use HFCs. In developed

countries, projected emissions increases are driven

primarily by the aging and replacement of existing ODSusing equipment (EPA, Global Non-CO2 GHG Emission

Projections and Mitigation, 2015-2050, 2019). Several

means can reduce HFC production and consumption. These

include conserving and recycling HFCs, substituting other

substances (e.g., ammonia or CO2) that are less potent

GHGs than HFCs, and modifying the technologies that use

HFCs, including greater energy efficiency. (For more about

energy efficiency standards, see CRS In Focus IF11354,

Department of Energy Appliance and Equipment Standards

Program.)

Many industry groups and environmental NGOs support

U.S. ratification of the Kigali Amendment, as well as EPA

regulation to assure compliance with it. According to

industry groups that support U.S. ratification of Kigali, a

domestic commitment to phase down HFCs would allow

chemical manufacturers to remain competitive in

international markets, which have begun transitioning to

new refrigerant technologies under the treaty. Some

stakeholders oppose U.S. ratification of Kigali, citing

concerns about consumer costs, such as those from

maintaining or purchasing new air conditioners, or potential

unavailability of substitutes. (See CRS In Focus IF10904,

Potential Hydrofluorocarbon Phase Down: Issues for

Congress.) Others’ concerns include use of the Montreal

Protocol to address GHGs and limits on U.S. sovereignty of

any treaty.

Significant New Alternatives Policy

CAA Section 612 authorized EPA to establish Significant

New Alternatives Policy (SNAP), a program to approve

“safer” substitutes for ODS. Under SNAP, EPA evaluates

alternatives to ODS production and use, creating lists of

“acceptable” and “unacceptable” substitutes. CAA Section

612(c) directs EPA to consider if the substitute “reduces the

overall risk to human health and the environment” and is

“currently or potentially available.” EPA makes this

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Hydrofluorocarbons (HFCs): EPA and State Actions

determination based on seven criteria: (1) atmospheric

effects and related health and environmental impacts, (2)

general population risks from ambient exposure to

compounds with direct toxicity and to increased groundlevel ozone, (3) ecosystem risks, (4) occupational risks, (5)

consumer risks, (6) flammability, and (7) cost and

availability of the substitute (40 C.F.R. §82.180(a)(7)).

In the 1990s and early 2000s, EPA approved certain HFCs

and HFC-containing blends as acceptable substitutes for

ODSs. In 2015, EPA finalized a rule that changed the status

of various HFCs and HFC-containing blends, listing some

as unacceptable for various end-uses in the aerosols,

refrigeration and air conditioning, and foam blowing

sectors. EPA cited HFC contributions to global climate

change (“atmospheric effects”) and based the rule on its

determination that “other substitutes are available for the

same uses that pose lower risk overall” to health and the

environment (80 Federal Register 42870, July 20, 2015).

In 2017, a federal court vacated the 2015 rule “to the extent

it requires manufacturers to replace HFCs with a substitute

substance” and remanded the rule to EPA for further

proceedings (see CRS Legal Sidebar LSB10154, D.C.

Circuit Rejects EPA’s Efforts to Ban Hydrofluorocarbons:

Part 1). In 2018, EPA suspended enforcement of the HFC

limits from the 2015 rule while it addressed the court’s

remand through a notice-and-comment rulemaking (83

Federal Register 18433, April 27, 2018). As of the date of

this publication, EPA has not proposed a rule to address the

remand. In April 2020, the U.S. Court of Appeals for the

D.C. Circuit vacated EPA’s 2018 notice and remanded it to

the agency for further consideration (Natural Res. Def.

Council v. Wheeler, No. 18-1172, 2020 U.S. App. LEXIS

10846 (D.C. Cir. Apr. 7, 2020)).

Refrigerant Management Practices

CAA Section 608 requires EPA to establish a refrigerant

management program, including regulations for proper

handling of ozone-depleting refrigerants recovered during

the maintenance, service, repair, and disposal of air

conditioning and refrigeration appliances. The CAA

requires reductions of use and emissions of certain ODS to

the “lowest achievable level” and to “maximize the

recapture and recycling of such substances” (42 U.S.C.

§7671g(a)). CAA Section 608(c), referred to as the “venting

prohibition,” prohibits the knowing venting, release, or

disposal of ODS during maintenance, service, repair, or

disposal of air conditioning and refrigeration appliances.

Unless otherwise exempted, substitute refrigerants are

subject to the venting prohibition (42 U.S.C. §7671g(c)).

EPA first promulgated regulations for the refrigerant

management program in 1993 and later revised them on

various occasions. The regulations include provisions

related to leaks, referred to as “maintenance and leak

repair,” and provisions related to knowing releases (e.g.,

venting), referred to as “non-leak repair.”

In 2016, EPA revised the refrigerant management

regulations for ODS and extended the maintenance, leak

repair, and non-leak repair requirements to apply to HFCs

and other substitutes as appropriate (81 Federal Register

82272, November 18, 2016). For example, the 2016 rule

lowered the leak rate threshold for repairing certain

appliances with ODS and extended this requirement to

appliances with HFCs and other substitute refrigerants. In

2019, a federal court vacated the 2016 rule “to the extent it

requires manufacturers to replace HFCs that were

previously and lawfully installed as substitutes” for ODS

(Mexichem Fluor, Inc. v. EPA, 866 F.3d 451, 464 (D.C.

Cir. 2017)).

In 2020, EPA rescinded the portions of the 2016

rulemaking that extended maintenance and leak repair

requirements to appliances using HFCs and other substitute

refrigerants (85 Federal Register 14150, March 11, 2020).

Other provisions from the 2016 rule remain in effect,

including extension of non-leak repair requirements to

HFCs and other substitutes. EPA cited a change in its legal

interpretation as the basis for the 2020 rule, concluding that

it lacks legal authority to extend the maintenance and leak

repair requirements to substitute refrigerants. EPA

determined that the extension of non-leak repair

requirements to substitutes was within its legal authority.

EPA interprets CAA Sections 608(a) and (c) as providing

“some authority to regulate substitute refrigerants” but that

authority is more limited than for ODS (85 Federal

Register 14160, March 11, 2020).

State Actions on HFCs

In 2018, the U.S. Climate Alliance, which includes 24

states and Puerto Rico, committed to reduce HFCs and

other potent GHGs. At least four of these states—California

(SB 1013, SB 1383), Washington (HB 1112), Vermont (Act

65), and New Jersey (A-5583/S-3919)—enacted legislation

to phase down HFCs. These laws incorporate certain

provisions from EPA’s 2015 and 2016 HFC rulemakings as

they were prior to the partial vacature by federal courts. For

example, they prohibit use of certain HFC refrigerants and

authorize phasedown schedules. At least two more state

legislatures are considering bills to reduce HFCs (Oregon,

Hawaii). At least eight other states announced plans to

reduce HFCs. Some have begun developing or proposed

regulations to phase down HFCs. While this is not an

exhaustive list of state-level HFC initiatives, these

examples illustrate a range of state actions.

Potential Issues for Congress

Congress may exercise oversight or consider legislative

proposals to reduce HFC production and consumption.

Issues include potential climate and economic impacts of

federal and judicial actions as well as the influence of

policy options on projected availability and costs of HFC

replacements. Congress may consider federal and state roles

and interactions, including the influence of federal options

and states’ efforts on scope, ambition, cost, and timing of

abating climate change impacts. Congress may also

examine consistency among states’ efforts, the effect of

federal preemption of state actions to transition to HFC

replacements, and implications for certainty of business

investments. In that context, Congress may consider past

examples of federal preemption of state actions—for

example, the tailored ODS state preemption provisions in

the 1977 CAA Amendments.

Kate C. Shouse, Analyst in Environmental Policy

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Hydrofluorocarbons (HFCs): EPA and State Actions

IF11541

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