March 2021

The winds are changing at the Federal level

My original focus for this column was on the upcoming hydrofluorocarbon (HFC) rulemaking directed by a portion of an omnibus bill that was passed at the end of the Trump Administration. However, because of numerous initiatives put forth by the Biden Administration, changes were needed.

During his campaign and the transition period following the election, there was a clear indication that Climate Change would be a key focus for government agencies under President Biden. However, this would not just be a focus for the organizations you would expect, such as the U.S. Environmental Protection Agency (EPA). Instead, all government agencies would be required to examine how their actions impact the climate.

On his first day in office, President Biden signed Executive Order 13990 i, Protecting Public Health & the Environment & Restoring Science to Tackle the Climate Crisis. Contained in this executive order are several decisions aimed at combating Climate Change, including rejoining the Paris Agreement. Much to my surprise, HFCs were not mentioned in this initial action.

SPRAY readers will recall previous articles ii that discussed various court decisions iii that left the Federal government without an HFC rule and led to a significant number of States undergoing their own rulemakings to restrict the use of high global warming potential (GWP) HFCs. The Household & Commercial Products Association (HCPA) has engaged in every one of these activities to ensure consistency across the States to avoid a patchwork of requirements.

 

 

 

 

 

 

 

 

 

We expected the Biden Administration to proceed with regulating the use of HFCs; however, we did not expect President Trump to sign an omnibus appropriations bill into law that also included HFC directives near the end of his term. I certainly couldn’t predict that a bill intended to provide economic stimulus initiatives in response to the COVID-19 pandemic would also include language to phasedown the production of HFCs. Nevertheless, this was a significant action.

That legislation directed the EPA to issue a final rule and establish an allowance allocation program to phase down the production and consumption of HFCs within 270 days from the date of enactment. In order to meet the intent of Congress, the EPA would need to issue a final rule by September 2021, so we expected the EPA to move quickly.

However, a week into office, President Biden made his mark on the future of regulating HFCs in the U.S. by signing the Executive Order on Tackling the Climate Crisis at Home & Abroad.iv This executive order requires the Secretary of State to send the Senate a package to ratify the Kigali Amendment to the Montreal Protocol within 60 days.v The Kigali Amendment extends the Montreal Protocol to phase down the production and consumption of HFCs. Sounds familiar to the legislation signed by President Trump, doesn’t it?

With several Republican Senators co-sponsoring the Federal legislation to phase down HFCs, there’s a possibility that the Senate will ratify the Kigali Amendment. Regardless of action in Congress, the EPA is going to have to act quickly to promulgate rules to reduce the production and consumption of HFCs in the U.S. by 85% over the next 15 years. More than that, though, President Biden is proving through his actions that addressing Climate Change is not just a talking point on his agenda, and that the U.S. government is going to be a leader in this space.

HCPA will continue to work with each and every State to regulate the use of HFCs so that the aerosol industry has consistency across the U.S. and avoids a patchwork of requirements. It’s even possible that my map will achieve a uniform color—however, even after President Biden’s first week in office, that will still require plenty of work at the Federal level.

I knew 2021 would be a busy year, particularly from a standpoint of State activity, but it’s clear that there’s a shift here in Washington, D.C., and, if these first few weeks are any indication, it seems like it will be even busier than I anticipated.

Now I need to go revamp a planned webinar on this topic, but please contact me at [email protected] with any questions or to learn more about all of HCPA’s activities and how get involved. SPRAY

i Available here
ii Georges, N. (2019, Sept.) What does global warming potential mean for the aerosol industry? SPRAY Technology & Marketing, p. 10. and Georges, N. (2020, April). Avoiding a patchwork of State regulations for high GWP HFCs. SPRAY Technology & Marketing, p. 10.
iii Mexichem Fluor, Inc. v. EPA, No. 15-1328 (D.C. Circ. 2017); Mexichem Fluor, Inc. iv. EPA, No. 17-1024 (D.C. Cir. 2019); Natural Resource Defense Fund v. Wheeler, No. 18- 1172 (D.C. Cir. Apr. 7, 2020)
iv Available here
v Available  here