EPA SNAP 20 & 21 Update

EPA SNAP Rule 20 Status Update

Excellent summary by the Air Conditioning, Heating & Refrigeration Institute on the court’s decision on SNAP 20 & 21. Article posted by permission. Heat Transfer Products Group is moving forward with designing products that can be used with multiple refrigerants, including low GWP alternatives. 


Background: EPA’s SNAP Rule 20 “Prohibition on the use of certain high-GWP HFCs as alternatives” (July 20, 2015) prohibited the use of refrigerants for certain applications that had previously been approved as acceptable for the replacement of ozone-depleting substances that had been banned by the Clean Air Act and its subsequent regulations. SNAP Rule 20 was the first time that the EPA de-listed refrigerants that had previously been listed as “acceptable.” Two chemical companies filed suit in the D.C. Circuit against the EPA claiming, among other arguments, that the EPA did not have the authority to de-list HFCs.


On August 8, 2017, a three-judge panel of the D.C. Circuit issued an opinion that SNAP Rule 20 was not legally authorized and issued an order mandating the EPA to withdraw the rule “to the extent it requires manufacturers to replace HFCs with a substitute substance.” The losing parties appealed, requesting the entire bench of judges (“en banc”) of the D.C. Circuit review the case. While this appeal was pending, the August 8 order vacating SNAP Rule 20 was held in abeyance, i.e. it sat on ice with no legal effect, until the ten judges of the D.C. Circuit decided whether to reconsider the case. On January 26, 2018, the D.C. Circuit decided not to take up the appeal.


The D.C. Circuit denied the petition for rehearing en banc, what does that mean?

·         The denial of the petition ended the D.C. Circuit litigation and triggered the implementation of the August 8, 2017, order vacating SNAP Rule 20. Therefore, on February 6, 2017, SNAP Rule 20 was officially vacated “to the extent it requires manufacturers to replace HFCs with a substitute substance.”


Will there be another appeal?

·         Probably, yes. More than one of the parties to the litigation has expressed its intent to file an appeal to the Supreme Court. The parties have 90 days from January 26, 2018 (April 26, 2018) to file, unless an extension of up to 60 days is requested and granted.


If the parties appeal, what happens to the D.C. Circuit’s order?

Nothing, for now. Unlike the first appeal to the full bench of D.C. Circuit, the mere act of filing an appeal with the Supreme Court will not have any impact on the legal mandate requiring that SNAP Rule 20 is vacated “to the extent it requires manufacturers to replace HFCs with a substitute substance.”


So, SNAP Rule 20 is vacated forever, right?

Not necessarily. A decision from the U.S. Supreme Court could overturn the August 8, 2017 order.

Several steps are required before that can happen:

·         The appealing parties first have to ask the Supreme Court to take the case. Because the Supreme Court is fancy, that request is called a “Petition for a Writ of Certiorari” or “cert petition.”

·         If the cert petition is denied, the August 8, 2017, order remains in place, the litigation ends, and SNAP Rule 20, as written, cannot be revived (barring an Act of Congress).

·         If the cert petition is granted, then the Supreme Court will consider the merits of the case and make a decision affirming or overturning the D.C. Circuit’s August 8, 2017 decision.1



1 Note: over 5,000 cert petitions are filed every year. The Supreme Court takes 80-100 of them.



When we will have finality on this issue?

·       If cert petition is filed at the end of April and briefing takes about six weeks, the Court will make a determination within two weeks of the close of briefing, approximately mid-June. 

o        Note, the Justices have the summer off—if briefing is delayed beyond June 14, 2018, then the Court will not decide on the cert petition until September 2018.

·       If the Court denies the cert petition, then all appeals are exhausted and the August 8 order stands.

·       If the Court takes the case, there may be a hearing sometime between October 2018 and June 2019. Several months later, the Court will issue an opinion.

·       Therefore, the earliest possible date that legal finality will be reached is approximately June 2018. The latest possible date for a final determination is summer 2019.


What about SNAP Rule 21?

·       SNAP Rule 21 “New listings of safer substitutes and prohibition on the use of certain high-GWP alternatives” (December 1, 2016) was challenged in the D.C. Circuit on the same grounds as SNAP Rule 20.

·       The parties all agreed that instead of trying two identical cases at the same time, the SNAP Rule 21 appeal would be held in abeyance (sit on ice) until the SNAP Rule 20 case was decided.

·       Now that the SNAP Rule 20 case has been finalized by the D.C. Circuit, it is anticipated that the petitioner chemical companies will request the D.C. Circuit to dispose of the SNAP Rule 21 case in the same manner as the SNAP 20 Rule case.

·       While it may take up to 60 more days before an order is finally issued by the court finalizing the decision on SNAP Rule 21, the principle of precedent dictates that SNAP Rule 21 will be vacated in part “to the extent that it requires manufacturers to replace HFCs with a substitute substance.”


What did the court mean that the rule is vacated “to the extent it requires manufacturers to replace

HFCs with a substitute substance”?

The mandate that the court gave to the EPA was conceptual and non-specific. The judges did not consider specific refrigerants, equipment, applications, etc. The court’s ultimate decision was that the Clean Air Act Section 612 authorized the SNAP program to phase out ozone-depleting substances, and because HFCs are not ozone depleting, the EPA may not prohibit them under the SNAP program. The EPA is not required to issue a notice repealing SNAP Rule 20 for the court’s mandate to be effective.


What does the court’s order mean for my operations?

·       Generally speaking, it means that previously prohibited HFCs that were de-listed under SNAP Rule 20 are now acceptable again. However, the details of how stakeholders should apply the ruling is best clarified by EPA.

·       It is EPA’s obligation to act quickly to put forward a fact sheet applying the judicial decision to the SNAP program for stakeholders.

·       AHRI is working with EPA in developing this fact sheet, but because EPA has the ultimate enforcement authority for SNAP, it also has the ultimate responsibility to explain to stakeholders clearly what the law is and what its expectations are. As soon as EPA has published the necessary guidance, AHRI will distribute it to all of its members.

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