Description: Challenge to rule in EPA’s cap- and-trade program for ozone depleting substances.
Arkema, Inc. v. EPA
Filing Date Type File Action Taken Summary 08/27/2010 Opinion Download Opinion issued. The D.C. Circuit vacated portions of EPA’s cap-and-trade program for reducing ozone-depleting substances, holding that the agency illegally invalidated credit transfers. The lawsuit concerned EPA regulations designed to meet U.S. commitments under the Montreal Protocol, which requires member countries to phase out production and consumption of a range of ozone depleting substances, including hydrochlorofluorocarbons (HCFCs), a potent greenhouse gas. In 2003, EPA set rules for HCFC production and consumption between 2004 and 2009 that allowed allowances to be transferred between and within companies for one year or permanently through baseline credit transfers. In December 2009, EPA issued a rule governing 2010-14 credits that determined that the Clean Air Act barred permanent baseline transfers. In the lawsuit, plaintiffs alleged that EPA’s 2009 rule illegally invalidated baseline emissions transfers within companies. The D.C. Circuit held that the rule was illegally retroactive because it altered transactions approved under the 2003 rule that were intended to be permanent. The D.C. Circuit therefore vacated the 2009 rule in part and remanded to EPA.