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  August 11, 2017

Federal Court Nixes Environmental Law Trump Actually Supports

William Snape III, of The Center for Biological Diversity, discusses US Court of Appeals overturning of EPA ban on hydrofluorocarbons, which are thousands of times more powerful greenhouse gases than carbon dioxide
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Bill Snape is the Senior Counsel at the Center for Biological Diversity where he coordinates the Center’s legal and policy work on endangered species, wilderness, and energy from Washington, DC. He did his undergraduate work at the University of California at Los Angeles and received his law degree from George Washington University. He has written numerous articles, as well as a book, on natural-resource issues in his 20-year career, has taught environmental and international law, and was with Defenders of Wildlife before joining the Center. In addition to his work with the Center he coaches swimming at Gallaudet University.


DHARNA NOOR: Welcome to the Real News Network. I'm Dharna Noor joining you from Baltimore. We've talked a lot on the Real News Network about the Trump administration's gutting of the EPA. But a Federal court struck down an Obama era protection agency rule that the Trump administration was actually attempting to preserve. The EPA rule banned the use of Hydroflourocarbons, or HFCs, which are greenhouse gases used for refrigeration and cooling. But on Tuesday in a two to one decision, the US court of appeals in Washington ruled that the ban on HFCs overstepped the agency's authority under the Clean Air Act. HFCs are pound per pound thousands of times more potent than carbon dioxide when released into the earth's atmosphere. To discuss all this, we're joined from Washington, D.C. by William Snape the third. He's the senior counsel with the Center for Biological Diversity, and he's also the editor of "Biodiversity and the Law," published by Island Press. Thanks so much for joining us again Bill.

WILLIAM SNAPE: Thanks for having me.

DHARNA NOOR: One of the judges in this case, judge Brett Cavanaugh, wrote in the court's decision that HFCs don't damage the earth's ozone layer. What does the science say about this? Is this true?

WILLIAM SNAPE: Well all parties in the case did agree that the issue with HFCs is their enormous global warming capacity, not their ozone depleting capacity. That was one of the oddities of this case. But I want to take a step back and just talk about the two judges who ruled against this EPA rule. They are two of the most far right leaning judges certainly in the DC circuit, arguably in all of the courts of appeal in the United States. I think whether this happens or not would be an interesting question, but I think that if this case were to go to a full unbound hearing of the full DC circuit, I feel pretty confident that there would be a different result. I think that the plain language of this decision by the two judge majority doesn't even make sense in some areas. We can talk about that in a second. But I think this decision becomes quite interesting for reasons that you pointed out in the introduction, which is it may be the Trump administration that has to create some order out of this chaos. The ironies are rich.

DHARNA NOOR: The use of HFCs came in response to the ban of the more commonly known Chlorofluorocarbons, or CFC's in 1992. What do we know about HFC's effect on climate change? As you said, it's widely known to have an effect. What is that effect?

WILLIAM SNAPE: Well, what we saw when we substituted the HFCs is while they helped in terms of solving our ozone problem, in fact the ozone layer, our tropospheric ozone layer is doing pretty well now. Certainly better than it was doing several decades ago. But these HFCs unbeknownst to us at the time, have huge global warming capacities, as you mentioned in the prelude. Thousands of times more powerful than carbon dioxide. What the Obama administration did within the context of a multilateral negotiation by all 200 countries on the planet, as an important fact to remember in this situation, is that they used their authorities under the clean air act to basically say well now based upon the language of the statute, we've determined HFCs are also injurious to the environment, which is what the statute says. They went through a process of substituting for HFCs. The ways HFCs had substituted for CFC's.

It's that that Cavanaugh and Judge Brown said "No you can't do that." To me, the most interesting part of this decision is the dissent. It's a very powerful dissent by Judge Wilkins, who's a very well respected judge in the DC circuit. He took great issue with how Cavanaugh was giving a tortured definition of the word 'replace,' which is a key word in this decision. I think Cavanaugh was up to bigger mischief than just HFCs in this decision. I think that there is, despite the fact that the Supreme Court, again and again, even with the late Justice Scalia agreeing the second time that the EPA has power to regulate climate pollutants.

What you really saw Cavanaugh doing here, I believe, was laying the groundwork through this HFC case of trying to revisit the argument about whether the EPA has to regulate climate pollutants. That's really what he was saying in this decision was "Hey, when Congress doesn't ratify a decision by the agency for a long enough period, that agency can't go off on its own and just do it." I disagree with that, because I think the Clean Air act clearly gives EPA the authority. But what Cavanaugh is doing is planting the seed that maybe all these decisions can be revisited.

DHARNA NOOR: But as you said, the Trump administration and industry have not exactly been known as defenders of environmental regulation. In fact, quite the opposite. Why in your opinion would climate denier Scott Pruitt for instance, and Trump's justice department defend this particular Obama era regulation.

WILLIAM SNAPE: Because while judge Cavanaugh was on his ideological crusade to neuter EPA, he in the process ruled in favor of a Mexican company that should have known for years that the HFC trade was coming on, the replacement was coming on. Again, this multilateral negotiation that Mexico was a part of, had been going on for over a decade. Now has handed a victory to this Mexican company, where the US company Honeywell and a couple other big US companies had been investing over the course of the last decade to get rid of HFCs and to develop alternatives to HFCs. This decision by Judge Cavanaugh actually very much harms US companies. Very much harms the multilateral fabric that was what was called the Kigali Amendment to the Montreal protocol, and puts President Trump in a very awkward position, as it relates to the upcoming renegotiation of NAFTA. It's hard to believe that this issue is not going to come up. It's a headache for the Trump administration, precisely because US industries have been preparing for this change, and in fact implementing this change for far longer than this rule was even in effect.

DHARNA NOOR: Yeah. Honeywell said "We are deeply disappointed in this ruling because it will adversely impact American innovation, manufacturing and competitiveness in commercializing next generation technologies." Let's move on a bit to talk about what chemicals were the companies using to replace HFCs and what's the effect of those chemicals on the ozone layer and on climate change?

WILLIAM SNAPE: Well, a lot of those are still being tested. The Kigali protocol that I just mentioned under the Montreal protocol and under the Vienna ozone depletion treaty is implemented over the course of the next decade. Quite frankly, not all of those substitutes have been ironed out. There are a families of new pollutant, new substitutes that will not have the same pollutant impact, both on the ozone layer, or on the climate. That's what Honeywell was talking about. Honeywell, Dupont, a lot of US companies have been investing a lot of money and reaching some success in coming up with these substitutes. That's part of what's going to be going on over the next decade. Hopefully this decision does not slow that down. I don't think that it will, but this decision is not good news for what otherwise had been a pretty orderly transition from one batch of chemicals that we had discovered were bad to a new set that we think would do the trick.

DHARNA NOOR: Is the overturn of the ban of HFCs final? Or could the EPA or the Justice department pursue this any further?

WILLIAM SNAPE: Well as a matter of law, EPA and the Trump administration, the Trump solicitor, they have at least more two bites at this apple. They can ask for an en banc hearing, which is a full DC circuit court of appeals hearing. They could ask for that. That would be what I would suggest that they do. They could also, depending on the result of that appeal to the Supreme Court. I think quite frankly this would be an interesting case for the Supreme Court. The Supreme Court has taken an interest in some of these Clean Air Act cases, so the Supreme Court taking a look at this is not outside the realm of possibility. But I think the first step is to have the full DC circuit take a look at this, because again, these two judges are pretty far outside the mainstream who were the two that just happened to be the panel that was selected here.

DHARNA NOOR: All right. William Snape the third, senior counsel for the Center for Biological Diversity and the editor of "Biodiversity and the Law." Thanks so much for joining us again Bill.


DHARNA NOOR: Thank you for joining us on the Real News Network.


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