As routinely covered at Regulatory Oversight, state attorneys general have assumed an ever-more prominent role in driving national regulatory policy through advocacy and enforcement activities.[1] Underlying many of these efforts is an aggressive focus on environmental justice by the state attorneys general that reaches further than federal efforts. Most recently in U.S. EPA proceedings to develop a national allowance allocation and trading program for hydrofluorocarbons (HFCs), multiple state attorneys general proposed more stringent regulations than what EPA ultimately adopted.


An unintended consequence of the “Montreal Protocol on Substances That Deplete the Ozone Layer,” which resulted in the global phaseout of harmful chlorofluorocarbons, was the rise of HFCs. HFCs are widely used in many everyday products, including refrigeration, air conditioning, aerosols, fire suppression, and foam blowing applications. Opponents of HFCs have argued that while preferable to chlorofluorocarbons, HFCs “still have hundreds to thousands of times the heat-trapping power of carbon dioxide.”[2] This opposition recently led Congress to enact the American Innovation and Manufacturing Act (AIM Act) and EPA to develop a national HFC allowance allocation and trading program implementing the act, which will phasedown HFC usage in the United States by 85% by 2036.[3]

In May 2021, EPA proposed to implement the AIM Act by:

  1. Setting “HFC production and consumption baselines according to the statutorily prescribed formulae,”[4]
  2. Establishing “HFC production and consumption allowance allocation and transfer methodology and procedures,”[5]
  3. Prohibiting “production and consumption in excess of held allowances,”[6]
  4. Mandating “the phasedown of HFC production and consumption according to the schedule set forth in the [AIM] Act,”[7]
  5. Strictly regulating “international trade and import of HFCs,”[8] and
  6. Requiring “detailed and transparent recordkeeping and reporting to track production, import, export, transformation, use, destruction, and reclamation of HFCs.”[9]

Democratic AGs’ Emphasis on Environmental Justice

In response to EPA’s proposal, the attorneys general of Massachusetts, California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New York, Oregon, and Vermont (the “State AGs), among others, argued to EPA that it should go even further. The State AGs repeatedly emphasized the importance of reducing HFC emissions and reversing an “unlawful and misguided trend toward loosening restrictions on harmful HFC pollution.”[10] Additionally, they argued that EPA should revise its proposed framework to “maximize benefits, and fully assess and minimize any potential harms, to environmental justice communities and Native American tribal communities in its final rule.”[11]

In support of making the national HFC framework more stringent, the State AGs argued that environmental justice communities and Native American tribal communities “are already overburdened by pollution and health hazards and more vulnerable to climate-change harms,” pointing to Hispanic and Black residents in Texas in the aftermath of Hurricane Harvey.[12] They made multiple suggestions of ways EPA could account for possible adverse impacts to these communities, including:

  1. Closely monitoring “Environmental Justice Communities adjacent to existing and any future HFC- and HFC-substitute-production facilities for both related toxic air pollutants,”[13]
  2. Designing “an Allocation System with sufficient allowance-trading reporting requirements to ensure EPA can effectively monitor where and when production-related emissions are occurring and protect adjacent communities from disproportionately high emissions,”[14]
  3. Requiring “annual public reporting by each facility on the quantity of HFC related toxic air pollutants used of produced by each facility to track the burdens experienced by adjacent communities as a result of the Proposed Rule,”[15]
  4. Monitoring and accounting “for potential indirect pollution effects of its Proposed Rule that impact Environmental Justice communities,”[16]
  5. Holding “direct, in-person informational workshops in communities adjacent to HFC-production facilities, and provide for relevant translation services, to ensure that information about the Proposed Rule is disseminated and that community feedback is well represented,”[17]
  6. Consulting “with tribal governments to fully understand and address all potential impacts,”[18]
  7. Accounting “for the polluting effects of other nearby EPA-permitted facilities or other EPA programs in its issuance of allowances for any facility that could impact Environmental Justice Communities, and vice versa.”[19]

EPA Demurs

EPA ultimately declined to adopt any of the State AGs proposed environmental justice-related changes because of the:

  • Lack of data concerning future HFC and HFC alternative production,
  • Uncertainty regarding how this final rule will contribute to or reduce environmental justice concerns,
  • Uniqueness of the phasedown and allocation program, and
  • Relatively small amount of HFC facilities already highly regulated by multiple authorities.[20]

But while EPA may not yet share the State AGs’ expansive views of environmental justice, it is unlikely to deter them or other state officials from moderating their approach. In the context of HFCs, many states have already adopted their own regulations, which will provide ample opportunities for consideration of environmental justice at the state level, whether in rulemaking or future enforcement actions against regulated parties.[21] Moreover, the emphasis by state attorneys general on environmental justice is hardly limited to HFCs or even traditional environmental programs for that matter. Consistent with the expansive view advanced by the State AGs here, there are numerous emerging contexts in which the issue arises under state laws, which we will continue to profile on Regulatory Oversight.



[1] Michael Jordan et al., North Carolina AG Opens Investigation Into E-Cigarette Maker Puff Bar, Regulatory Oversight (November 18, 2021),

[2] Natural Resources Defense Council,

[3] 86 Fed. Reg. at 55,116, 55,118 (Oct. 10, 2021).

[4] Letter from Attorney Gen. Maura Healey et al. to Andy Chang, Envtl. Permit Specialist, EPA, Phasedown of Hydroflurocarbons: Establishing the Allowance Allocation and Trading Program under the American Innovation and Manufacturing Act, 5 (July, 1, 2021) (available at

[5] Maura Healey et al. at 5.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 5-11.

[12] Id. at 6.

[13] Id. at 7.

[14] Id.

[15] Id. at 8.

[16] Id.

[17] Id. at 9.

[18] Id.

[19] Id.

[20] 86 Fed. Reg at 55,116, 55,127-29 (Oct. 10, 2021).

[21] Natural Resources Defense Council, States Keep Steady Course on HFC Regulations,