Hydrofluorocarbons (HFCs): EPA and State Actions
May 7, 2020
Hydrofluorocarbons (HFCs): EPA and State Actions
Many fluorinated and chlorinated substances, including
nature of HFCs and other GHGs emissions, efforts to
hydrofluorocarbons (HFCs) and chlorofluorocarbons
effectively address climate change will likely need to occur
(CFCs), are potent greenhouse gases (GHGs). Multiple
on a global scale. In 2016, nearly 200 nations, including the
scientific assessments conclude that anthropogenic GHGs
United States, agreed to the Kigali Amendment to the
(e.g., carbon dioxide [CO2], HFCs, and CFCs) have been a
Montreal Protocol, which contains commitments to phase
major driver of observed climate change since 1950.
down global production and consumption of HFCs because
they are potent GHGs that substitute for ODS controlled
Recent legislative proposals—S. 2754, the American
under the protocol. The United States is a party to the
Innovation and Manufacturing Act of 2019, and H.R. 5544,
Montreal Protocol. As of May 2020, the United States is not
the American Innovation and Manufacturing Leadership
party to the Kigali Amendment.
Act of 2020—would establish a schedule to reduce
domestic HFC production and consumption. S. 2754 and
Absent mitigation actions, global HFC emissions and
H.R. 5544 would require implementation by the U.S.
consumption are projected to increase, especially in
Environmental Protection Agency (EPA) and an 85%
developing countries as demand is expected to rise for
reduction by 2036 compared to a 2011-2013 baseline.
cooling services that would use HFCs. In developed
countries, projected emissions increases are driven
Background
primarily by the aging and replacement of existing ODS-
HFCs are used in air conditioning, refrigeration, foam
using equipment (EPA, Global Non-CO2 GHG Emission
blowing agents, insulation, and other applications. HFCs
Projections and Mitigation, 2015-2050, 2019). Several
were first manufactured in the context of efforts to reduce
means can reduce HFC production and consumption. These
damage to the earth’s stratospheric ozone layer.
include conserving and recycling HFCs, substituting other
Stratospheric ozone absorbs harmful incoming solar
substances (e.g., ammonia or CO2) that are less potent
radiation, and it also affects the earth’s climate. HFCs are
GHGs than HFCs, and modifying the technologies that use
referred to as “substitute refrigerants” under Clean Air Act
HFCs, including greater energy efficiency. (For more about
(CAA) Title VI regulations, because EPA approved HFCs
energy efficiency standards, see CRS In Focus IF11354,
as replacements for CFCs and other more potent ozone
Department of Energy Appliance and Equipment Standards
depleting substances (ODS).
Program.)
Title VI of the CAA represents the United States’ primary
Many industry groups and environmental NGOs support
response domestically to abate stratospheric ozone
U.S. ratification of the Kigali Amendment, as well as EPA
depletion caused by manufactured chemicals. Title VI
regulation to assure compliance with it. According to
contains a phase-out schedule for ODS as well as several
industry groups that support U.S. ratification of Kigali, a
implementing strategies to avoid releases of ODS to the
domestic commitment to phase down HFCs would allow
atmosphere, such as an allowance trading program;
chemical manufacturers to remain competitive in
requirements for labeling, recovery, and recycling of ODS;
international markets, which have begun transitioning to
a program to approve safer substitutes for ODS; and
new refrigerant technologies under the treaty. Some
certification requirements for technicians who service
stakeholders oppose U.S. ratification of Kigali, citing
equipment containing ODS.
concerns about consumer costs, such as those from
maintaining or purchasing new air conditioners, or potential
To address HFC emissions and their projected effect on
unavailability of substitutes. (See CRS In Focus IF10904,
climate change, EPA promulgated changes to the regulatory
Potential Hydrofluorocarbon Phase Down: Issues for
requirements for HFCs under Title VI of the CAA. The
Congress.) Others’ concerns include use of the Montreal
2015 and 2016 rulemakings, discussed further below, have
Protocol to address GHGs and limits on U.S. sovereignty of
been subject to legal challenges to EPA’s authority to
any treaty.
regulate HFCs under CAA Title VI. (For more about EPA’s
authority to regulate HFCs, see CRS Legal Sidebar
Significant New Alternatives Policy
LSB10155, D.C. Circuit Rejects EPA’s Efforts to Ban
CAA Section 612 authorized EPA to establish Significant
Hydrofluorocarbons: Part 2.)
New Alternatives Policy (SNAP), a program to approve
“safer” substitutes for ODS. Under SNAP, EPA evaluates
Title VI also implements U.S. international responsibilities
alternatives to ODS production and use, creating lists of
under the Montreal Protocol on Substances that Deplete the
“acceptable” and “unacceptable” substitutes. CAA Section
Ozone Layer (and its amendments). International
612(c) directs EPA to consider if the substitute “reduces the
cooperation to phase down CFCs and other ODS has been
overall risk to human health and the environment” and is
effective under the Montreal Protocol. Given the global
“currently or potentially available.” EPA makes this
https://crsreports.congress.gov
Hydrofluorocarbons (HFCs): EPA and State Actions
determination based on seven criteria: (1) atmospheric
82272, November 18, 2016). For example, the 2016 rule
effects and related health and environmental impacts, (2)
lowered the leak rate threshold for repairing certain
general population risks from ambient exposure to
appliances with ODS and extended this requirement to
compounds with direct toxicity and to increased ground-
appliances with HFCs and other substitute refrigerants. In
level ozone, (3) ecosystem risks, (4) occupational risks, (5)
2019, a federal court vacated the 2016 rule “to the extent it
consumer risks, (6) flammability, and (7) cost and
requires manufacturers to replace HFCs that were
availability of the substitute (40 C.F.R. §82.180(a)(7)).
previously and lawfully installed as substitutes” for ODS
(Mexichem Fluor, Inc. v. EPA, 866 F.3d 451, 464 (D.C.
In the 1990s and early 2000s, EPA approved certain HFCs
Cir. 2017)).
and HFC-containing blends as acceptable substitutes for
ODSs. In 2015, EPA finalized a rule that changed the status
In 2020, EPA rescinded the portions of the 2016
of various HFCs and HFC-containing blends, listing some
rulemaking that extended maintenance and leak repair
as unacceptable for various end-uses in the aerosols,
requirements to appliances using HFCs and other substitute
refrigeration and air conditioning, and foam blowing
refrigerants (85 Federal Register 14150, March 11, 2020).
sectors. EPA cited HFC contributions to global climate
Other provisions from the 2016 rule remain in effect,
change (“atmospheric effects”) and based the rule on its
including extension of non-leak repair requirements to
determination that “other substitutes are available for the
HFCs and other substitutes. EPA cited a change in its legal
same uses that pose lower risk overall” to health and the
interpretation as the basis for the 2020 rule, concluding that
environment (80 Federal Register 42870, July 20, 2015).
it lacks legal authority to extend the maintenance and leak
repair requirements to substitute refrigerants. EPA
In 2017, a federal court vacated the 2015 rule “to the extent
determined that the extension of non-leak repair
it requires manufacturers to replace HFCs with a substitute
requirements to substitutes was within its legal authority.
substance” and remanded the rule to EPA for further
EPA interprets CAA Sections 608(a) and (c) as providing
proceedings (see CRS Legal Sidebar LSB10154, D.C.
“some authority to regulate substitute refrigerants” but that
Circuit Rejects EPA’s Efforts to Ban Hydrofluorocarbons:
authority is more limited than for ODS (85 Federal
Part 1). In 2018, EPA suspended enforcement of the HFC
Register 14160, March 11, 2020).
limits from the 2015 rule while it addressed the court’s
remand through a notice-and-comment rulemaking (83
State Actions on HFCs
Federal Register 18433, April 27, 2018). As of the date of
In 2018, the U.S. Climate Alliance, which includes 24
this publication, EPA has not proposed a rule to address the
states and Puerto Rico, committed to reduce HFCs and
remand. In April 2020, the U.S. Court of Appeals for the
other potent GHGs. At least four of these states—California
D.C. Circuit vacated EPA’s 2018 notice and remanded it to
(SB 1013, SB 1383), Washington (HB 1112), Vermont (Act
the agency for further consideration (Natural Res. Def.
65), and New Jersey (A-5583/S-3919)—enacted legislation
Council v. Wheeler, No. 18-1172, 2020 U.S. App. LEXIS
to phase down HFCs. These laws incorporate certain
10846 (D.C. Cir. Apr. 7, 2020)).
provisions from EPA’s 2015 and 2016 HFC rulemakings as
they were prior to the partial vacature by federal courts. For
Refrigerant Management Practices
example, they prohibit use of certain HFC refrigerants and
CAA Section 608 requires EPA to establish a refrigerant
authorize phasedown schedules. At least two more state
management program, including regulations for proper
legislatures are considering bills to reduce HFCs (Oregon,
handling of ozone-depleting refrigerants recovered during
Hawaii). At least eight other states announced plans to
the maintenance, service, repair, and disposal of air
reduce HFCs. Some have begun developing or proposed
conditioning and refrigeration appliances. The CAA
regulations to phase down HFCs. While this is not an
requires reductions of use and emissions of certain ODS to
exhaustive list of state-level HFC initiatives, these
the “lowest achievable level” and to “maximize the
examples illustrate a range of state actions.
recapture and recycling of such substances” (42 U.S.C.
§7671g(a)). CAA Section 608(c), referred to as the “venting
Potential Issues for Congress
prohibition,” prohibits the knowing venting, release, or
Congress may exercise oversight or consider legislative
disposal of ODS during maintenance, service, repair, or
proposals to reduce HFC production and consumption.
disposal of air conditioning and refrigeration appliances.
Issues include potential climate and economic impacts of
Unless otherwise exempted, substitute refrigerants are
federal and judicial actions as well as the influence of
subject to the venting prohibition (42 U.S.C. §7671g(c)).
policy options on projected availability and costs of HFC
replacements. Congress may consider federal and state roles
EPA first promulgated regulations for the refrigerant
and interactions, including the influence of federal options
management program in 1993 and later revised them on
and states’ efforts on scope, ambition, cost, and timing of
various occasions. The regulations include provisions
abating climate change impacts. Congress may also
related to leaks, referred to as “maintenance and leak
examine consistency among states’ efforts, the effect of
repair,” and provisions related to knowing releases (e.g.,
federal preemption of state actions to transition to HFC
venting), referred to as “non-leak repair.”
replacements, and implications for certainty of business
investments. In that context, Congress may consider past
In 2016, EPA revised the refrigerant management
examples of federal preemption of state actions—for
regulations for ODS and extended the maintenance, leak
example, the tailored ODS state preemption provisions in
repair, and non-leak repair requirements to apply to HFCs
the 1977 CAA Amendments.
and other substitutes as appropriate (81 Federal Register
Kate C. Shouse, Analyst in Environmental Policy
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Hydrofluorocarbons (HFCs): EPA and State Actions
IF11541
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