Ch. 11:  Protection of the Global Environment

The Kigali Agreement: Using the Montreal Protocol to Phase

out Ozone-depleting Substances that Are Greenhouse Gases


As noted in the casebook (pp. 1226-1227), in October 2016 the 28th Conference of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, meeting in Kigali, Rwanda, agreed to a global phase out of hydrofluorocarbons, a potent set of greenhouse gases that also are ozone-depleting substances. It is estimated that these measures alone may slow global warming by as much as 0.5C.  This is a tremendous achievement that is the product of years of meticulous diplomacy. The Montreal Protocol already has been responsible for greater reductions in greenhouse gas emissions than even the Kyoto Protocol.  The new measures will help reduce the impact on climate change of the rapid growth of air conditioning use in developing countries. 


However, as noted on p. 1227 of the casebook, a divided panel of the D.C. Circuit in an opinion by current Supreme Court nominee Judge Brett Kavanaugh held that EPA does not have the authority to require replacement of HFCs under Title VI of the Clean Air Act. Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017).  The publisher’s spellcheck apparently changed “Fluor” to “Flour” - the first typo we have discovered in the 8th edition.  Both U.S. manufacturers of air conditioners and NRDC are seeking Supreme Court review of this decision.  Even if Judge Kavanaugh is confirmed by the U.S. Senate, he will have to recuse himself from this case in the Supreme Court if it agrees to hear the case.  Here is a description of the cert petitions:


HONEYWELL INTERNATIONAL INC. v. MEXICHEM FLUOR, INC., No. 17-1703 & NATURAL RESOURCES DEFENSE COUNCIL, INC. v. MEXICHEM FLUOR, INC., No. 18-2

Decision Below: Mexichem Fluor, Inc v. Environmental Protection Agency 866 F.3d 451 (D.C. Cir. 2017)

Question Presented: Whether, under the “safe alternatives policy” of Section 612 of the Clean Air Act, the Environmental Protection Agency lacks authority to prohibit the use of a less-safe substitute for an ozone-depleting substance in favor of a safer alternative, just because a company has already begun using the less-safe substitute.

Whether the Environmental Protection Agency has authority under Section 612 of the Clean Air Act to prohibit the use of dangerous but non-ozone-depleting substitutes by any person, including by product manufacturers who began using such substitutes before the EPA placed them on the prohibited list.


Climate Change Litigation


    Professor Michael Gerrard of the Columbia University School of Law maintains a website tracking these cases at: http://www.climatecasechart.com/ Columbia’s Center for Climate Change Law has a blog on climate change at: http://blogs.law.columbia.edu/climatechange/