Honeywell International Inc., et al. v. Mexichem Fluor Inc., et al.

Section 612 of the Clean Air Act makes it unlawful to “replace” an ozone-depleting substance with any “substitute substance” that EPA “determines may present adverse effects to human health or the FOWJSPONFOU w
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alternative to such replacement that … reduces the overall risk to human health and the environment.” 42 U.S.C. § 7671k(c). In 1994, EPA approved hydronPVSPDBSCPOT
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ozone-depleting chemicals in several end uses. But in 2015, EPA determined that, for certain products and uses, available alternatives reduce the overall risk to health and the environment compared to certain HFCs. Accordingly, and per § 612’s instruction, EPA prohibited the use of those HFCs where safer available alternatives may be used instead. In the decision below, however, the D.C. Circuit held that the word “replace” in § 612 refers only to the initial replacement of an ozone-depleting substance with a non-ozone-depleting substitute, not to subsequent uses of that same substitute or any other substitute. The court held that EPA cannot apply § 612 to any manufacturer or user that has already “replaced” an ozone-depleting substance with a non-ozonedepleting substitute, like an HFC. The court held that such entities are forever free to continue using the original substitutes, no matter how harmful they are compared to safer substitutes that enter the market. The question presented is whether, under the “safe alternatives policy” of § 612 of the Clean Air Act, EPA lacks authority to prohibit the use of a lesssafe substitute for an ozone-depleting substance in favor of a safer alternative, just because a company has already begun using the less-safe substitute.