Will Congress Warm-Up to HFC Refrigerant Replacements?

By Michael Smith*

One of life’s ironies is that the machines that cool our homes, cars, and workplaces rely on chemicals that, when released into the environment, are greenhouse gases thousands of times as potent as carbon dioxide.[1]  These chemicals are called hydrofluorocarbons (HFCs for short), and in a late environmental victory for the Obama Administration, their use was substantially curtailed by a multinational agreement signed in late October of this year.

The agreement is called the Kigali Amendment (“Kigali”), the proposed ninth amendment to the venerable Montreal Protocol.[2]  Signed in September of 1987, the Montreal Protocol on Substances that Deplete the Ozone Layer was the international agreement that resulted in the commercial elimination of chlorofluorocarbons, or CFCs.[3]  CFCs are a class of chemicals that were once commonly found in refrigeration devices and aerosol cans.[4]  Unfortunately, they were also found to be depleting the ozone layer: the stratospheric blanket that shields the Earth from some of the Sun’s worst ultraviolet radiation.[5]  Widely regarded as one of the most effective multinational agreements to date, the Montreal Protocol has been amended over the years to regulate the chemical successors to CFCs.[6]  This eventually led to the adoption of HFCs, a class of alternative chemicals that, while they don’t deplete ozone, warm the earth thousands of times more than the equivalent amount of carbon dioxide.[7]

Kigali aims to reduce global emissions of HFCs 80% by the year 2047.[8]  To meet those targets, Kigali contains mechanisms that encourage developing countries to adopt HFC alternatives and provides financial help to do so.[9]  When fully implemented, the agreement is expected to, by itself, shave a half-degree Celsius off global warming by the year 2100.[10]

The problem is that, in order to be binding, Kigali must be ratified by its signatory states, including the United States.[11]  The State Department concedes that Kigali is a substantive amendment, rather than a more minor “adjustment,” to the Montreal Protocol.[12]  All past amendments to the Montreal Protocol were submitted to the Senate and received approval as treaties by the constitutionally required two-thirds majority.[13]  As of the publication of this article, however, the State Department and EPA have not yet indicated whether they will attempt to bypass the Senate by considering Kigali an executive agreement.[14]

Republican Senators have, so far, provided a frosty reception.  Senator Inhofe (R-Okla.), chairman of the Senate Committee on Environment and Public Works in the previous Congress, believes Kigali does not address the primary purpose of the Montreal Protocol: ozone depletion.[15]  Instead, the Senator sees Kigali as an attempt to shoehorn climate policy into an otherwise unrelated treaty, refusing to support it on those grounds.[16] The relevant Senate committee in which consideration will begin, however, is the Senate Foreign Relations Committee.[17]  Committee chairman Senator Corker (R. Tenn.) has stated that he expects the Administration to submit Kigali for Senate approval.[18]

Kigali might also fall victim to a political proxy battle over the Paris Agreement, signed in April, that provides global targets for reductions in carbon dioxide emissions.[19]  Senator Barrasso (R-Wyo.), chairman of the Foreign Relations subcommittee that would first address Kigali and avid defender of the coal industry, vehemently opposed the Obama Administration’s decision to treat the Paris Agreement as an executive agreement, rather than a treaty.[20] Senator Barrasso has not yet made his opinions on Kigali public, but he now holds the chairman’s gavel for the Senate Committee on Environment and Public Works.[21]  Senator Barrasso’s position will therefore be extremely important for the future of Kigali and environmental policy generally.

Hope for proponents of ratification, however, is not yet lost.  Myron Ebell, head of the Trump administration’s EPA transition team, has indicated that Kigali might stand a “fighting chance” in the Senate while the Paris Agreement would not.[22]  In addition, Kigali was warmly endorsed by the Air Conditioning, Heating & Refrigeration Institute (AHRI) almost immediately after agreement was reached.[23]  The AHRI serves as the trade association for the industry that stands to receive the most immediate and direct negative impact from Kigali’s ratification.[24]  AHRI’s support, and its expressed willingness to work with Congress to ensure ratification, would therefore be crucial if Kigali is to pass the two-thirds ratification bar in the Senate.  AHRI members supporting ratification of Kigali also include manufacturers from Senator Inhofe’s home state of Oklahoma, such as Johnson Controls, Inc., AAON Inc., and ClimateMaster, Inc.[25]

Further support has come from chemical companies such as Honeywell and Chemours.[26]  Former producers of HFCs, these companies have been manufacturing HFC replacements for European markets and in anticipation of EPA regulation in the United States.[27]  Sales of such chemicals have become more profitable, driving an increase in research and development interest.[28]  While there have been some concerns about the expense and potential hazards of some HFC replacements (some require pressurized storage and/or are flammable), replacement has also encouraged more innovative approaches, such as the use of compressed carbon dioxide in new automobile air conditioning systems.[29]

In sum, Kigali faces an uncertain, but by no means insurmountable ratification battle in the Senate.  While Republican Senators may be skeptical, Kigali faces no real opposition from any affected industry.  In fact, the chemical, air conditioning, heating, and refrigeration industries—those most likely to be hurt by the HFC phase-out—have gotten behind the treaty.  For the chemical industry, such a treaty is good for business.  With Trump administration officials leaving the door open for ratification, it remains to be seen whether Congress will warm up to the idea, or if the Kigali Amendment will be left in cold storage.

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

*Michael Smith is a Junior Editor for MJEAL.  He can be reached at michaess@umich.edu.

 [1] Fact Sheet: Nearly 200 Countries Reach a Global Deal to Phase Down Potent Greenhouse Gases and Avoid Up to 0.5°C of Warming, The White House (Oct. 15, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/10/15/fact-sheet-nearly-200-countries-reach-global-deal-phase-down-potent [hereinafter Fact Sheet].

[2] Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, adopted Oct. 15, 2016, United Nations Treaty Collection, Ref. C.N.827.2016.TREATIES.XXVII.2.f, https://treaties.un.org/doc/Publication/CN/2016/CN.872.2016-Eng.pdf.

[3] Montreal Protocol on Substances that Deplete the Ozone Layer, concluded on Sept. 16, 1987, 1522 U.N.T.S. 3.

[4] Hiroko Tabuchi & Danny Hakim, How the Chemical Industry Joined the Fight Against Climate Change, N.Y. Times (Oct. 19, 2016), http://www.nytimes.com/2016/10/17/business/how-the-chemical-industry-joined-the-fight-against-climate-change.html.

[5] Id.

[6] Jean Chemnick, Everyone Likes the HFC Amendment—Except the U.S. Senate, E&E Publ’g, LLC: ClimateWire (Oct. 25, 2016), http://www.eenews.net/climatewire/stories/1060044756/search?keyword=HFC.

[7] See, Tabuchi & Hakim, supra note 4.

[8] Fact Sheet, supra note 1.

[9] Id.

[10] Id.

[11] See, Hannah Hess, HFC Deal an ‘Empty Promise’ Without Senate—Inhofe, E&E Publ’g, LLC: Greenwire (Oct. 24, 2016), http://www.eenews.net/greenwire/stories/1060044728/search?keyword=HFC.

[12] Anthony Adragna, Senate Sign Off Likely Needed for HFC Deal, Politico (Oct. 24, 2016, 10:00 AM), http://www.politico.com/tipsheets/morning-energy/2016/10/senate-sign-off-likely-needed-for-hfc-deal-217017.

[13] See, id.

[14] Hess, supra note 11.

[15] Chemnick, supra note 6.

[16] Id.

[17] Id.

[18] Id.

[19] Paris Agreement, Dec. 12, 2015, United Nations Treaty Collection, Chapter XXVII 7.d, https://treaties.un.org/doc/Treaties/2016/02/20160215%2006-03%20PM/Ch_XXVII-7-d.pdf.

[20] Chemnick, supra note 6.

[21] Hannah Hess, Obama Admin Leaving HFC Deal to Trump White House, E&E Publ’g LLC: E&E Daily (Dec. 1, 2016), http://www.eenews.net/stories/1060046464/.

[22] Chemnick, supra note 6.

[23] AHRI Applauds Agreement to Include HFCs in Montreal Protocol, Air-Conditioning, Heating, & Refrigeration Inst. (Oct. 15, 2016), http://www.ahrinet.org/News-Events/News-and-Shipping-Releases.aspx?A=1203.

[24] Chemnick, supra note 6.

[25] AHRI Members, Air-Conditioning, Heating, & Refrigeration Inst. (last visited Nov. 11, 2016), http://www.ahrinet.org/About-Us/AHRI-Members.aspx; Chemnick, supra note 5.

[26] Tabuchi & Harkin, supra note 4.

[27] Danny Hakim, New Climate-Friendlier Coolant has a Catch: It’s Flammable, N.Y. Times (Oct. 22, 2016), http://www.nytimes.com/2016/10/23/business/energy-environment/auto-coolant-global-warming-at-what-cost.html.

[28] See generally, Tabuchi & Harkin, supra note 4.

[29] See, Hakim, supra note 27.

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