From the New Jersey Office of the Attorney General: 

AG Joins Brief Urging Court to Reverse Decision by Judge Brett Kavanaugh that Limits EPA’s Ability to Replace Super-Polluting Chemicals

TRENTON – Acting again to protect New Jersey residents from the harmful effects of climate change, Attorney General Gurbir S. Grewal joined other states in calling on the U.S. Supreme Court to reverse a lower court ruling that opened the door for widespread use of super-polluting chemicals known as hydrofluorocarbons (HFCs).

Filed today, a multi-state brief explains that HFCs are climate super- pollutants that have thousands of times the global warming potential of carbon dioxide.  That is why the federal Environmental Protection Agency (EPA) banned them for use in manufacturing in 2015.  But the U.S. Court of Appeals for the D.C. Circuit – in an opinion by Judge Brett Kavanaugh – found that EPA can no longer prohibit all uses of HFCs.  The brief by the Attorneys General explains that this decision guts EPA’s regulatory program and “exposes human health and the environment to grave risks.”

“Climate change is the greatest environmental threat to our state and our planet. That is why we are calling on the nation’s highest court to uphold EPA’s rules tackling especially powerful greenhouse gases,” said Attorney General Grewal. “We cannot count on the federal government to fight for strict rules that limit greenhouse gases, and so it falls to New Jersey and my fellow state Attorneys General to do so.”

One of the fastest-growing sources of greenhouse gas emissions, HFCs are used as propellants in foam products and as refrigerants. They are especially powerful pollutants and contribute significantly to climate change.

In 1994, EPA approved HFCs as substitutes for ozone-depleting chemicals, but in 2015 determined that, for certain products and uses, better alternatives could reduce the overall risk to human health and the environment.   So EPA prohibited the use of HFCs where safer available alternatives could be used instead.

After industry challenged the EPA’s action (Mexichem Fluor v. EPA), earlier this year the D.C. Circuit – in a 2-1 decision – vacated part of the EPA’s 2015 rule “to the extent it requires manufacturers to replace HFCs.”  EPA then announced that it would suspend the rule altogether, meaning that it would not require any manufacturers or users to avoid using HFCs.

The multi-state brief filed today assails Judge Kavanaugh’s opinion as “plainly wrong” and founded on an “implausibly cramped” and “illogical” reading of the federal Clean Air Act.  Unless the decision is reversed, the states explain, EPA can no longer be counted on to safeguard air quality.

“If the decision below stands,” the amicus brief argues, “states can no longer rely on the [EPA] to ensure that millions of air conditioners, refrigerators, cosmetics, spray cans, household cleaners and myriad other substitute-containing products do not pose undue dangers. States also can no longer rely on [EPA] to send strong incentives to the global chemical industry to invest in the development of cleaner, safer alternatives.”      

Today’s SCOTUS filing is the latest in a series of legal actions by Attorney General Grewal to prevent the weakening or elimination of rules that address climate change. Among other actions, Attorney General Grewal has fought rules that roll back vehicle emissions standards and the penalties for violating national fuel economy standards, and joined letters and multi-state comments opposing the expansion of offshore drilling off New Jersey’s coast.

Just yesterday, Attorney General Grewal joined Massachusetts and Attorneys General for four other states and the District of Columbia in calling on the Federal Energy Regulatory Commission (FERC) to consider the impacts of new natural gas pipelines on contributing to climate change before issuing approvals of those new pipelines.