Petition for Writ of Certiorari — Honeywell International Inc., et al., Petitioners v. Mexichem Fluor Inc., et al.

Supreme Court briefJun 25, 2018

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No. 17IN T H E

Supreme Court of the United States

HONEYWELL INTERNATIONAL INC., ET AL.,

Petitioners,

MEXICHEM FLUOR, INC., ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the

District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS A. LORENZEN

ROBERT J. MEYERS

CROWELL & MORING LLP

1001 Penn. Ave., NW

Washington, DC 20004

(202) 624-2500

tlorenzen@crowell.com

Counsel for Petitioner

The Chemours Company

FC, LLC

LISA S. BLATT

Counsel of Record

JONATHAN S. MARTEL

ELISABETH S. THEODORE

ANDREW T. TUTT

STEPHEN K. WIRTH

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Mass. Ave., NW

Washington, DC 20001

(202) 942-5000

lisa.blatt@arnoldporter.com

DAVID B. RIVKIN JR.

BAKER & HOSTETLER LLP

1050 Conn. Ave., NW

Washington, DC 20036

(202) 861-1500

drivkin@bakerlaw.com

Counsel for Petitioner

Honeywell International

Inc.

QUESTION PRESENTED

Section 612 of the Clean Air Act makes it unlawful to “replace” an ozone-depleting substance with

any “substitute substance” that EPA “determines

may present adverse effects to human health or the

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alternative to such replacement that … reduces the

overall risk to human health and the environment.”

42 U.S.C. § 7671k(c). In 1994, EPA approved hydronPVSPDBSCPOT )'$T BT iOFBSUFSNw TVCTUJUVUFT GPS

ozone-depleting chemicals in several end uses. But

in 2015, EPA determined that, for certain products

and uses, available alternatives reduce the overall

risk to health and the environment compared to certain HFCs. Accordingly, and per § 612’s instruction,

EPA prohibited the use of those HFCs where safer

available alternatives may be used instead.

In the decision below, however, the D.C. Circuit

held that the word “replace” in § 612 refers only to the

initial replacement of an ozone-depleting substance

with a non-ozone-depleting substitute, not to subsequent uses of that same substitute or any other substitute. The court held that EPA cannot apply § 612 to

any manufacturer or user that has already “replaced”

an ozone-depleting substance with a non-ozonedepleting substitute, like an HFC. The court held that

such entities are forever free to continue using the

original substitutes, no matter how harmful they are

compared to safer substitutes that enter the market.

The question presented is whether, under the

“safe alternatives policy” of § 612 of the Clean Air

Act, EPA lacks authority to prohibit the use of a lesssafe substitute for an ozone-depleting substance in

favor of a safer alternative, just because a company

has already begun using the less-safe substitute.

PARTIES TO THE PROCEEDING

Petitioners, who intervened as respondents below, are Honeywell International Inc., and The

Chemours Company FC, LLC. The Natural Resources Defense Council, which also intervened below, is petitioning separately.

Respondents Arkema Inc. and Mexichem Fluor,

Inc., were petitioners below. Respondent Environmental Protection Agency was respondent below.

CORPORATE DISCLOSURE STATEMENT

Honeywell International Inc. has no parent corporations and there are no publicly held corporations

known to Honeywell that own 10% or more of the

outstanding shares of Honeywell’s common stock.

The Chemours Company FC, LLC, is a wholly

owned subsidiary of The Chemours Company, which

is a publicly traded company. No publicly held corporation other than The Chemours Company owns 10%

or more of The Chemours Company FC, LLC’s stock.

iii

TABLE OF CONTENTS

Page

Question Presented ..................................................... i

Parties to the Proceeding ........................................... ii

Corporate Disclosure Statement............................... iii

Table of Authorities ....................................................vi

Opinions Below ............................................................1

Jurisdiction ..................................................................1

Statutes and Regulatory Provisions Involved ............1

Statement of the Case .................................................2

A. The 1990 Clean Air Act Amendments and

the Significant New Alternatives Policy .......6

B. The 2015 Rule ................................................9

C. Proceedings Below ....................................... 11

Reasons the Petition Should Be Granted ................. 15

The Decision Below Upends an Important

Federal Regulatory Scheme, Undermines

Investments, and Will Harm the

Environment ...................................................... 15

A. The Decision Below Disrupts a Critical,

Carefully-Crafted Federal Program

Designed to Promote the Safety of

Millions of Products ..................................... 17

B. The Environmental and Health

Consequences of the Decision Below Are

Enormous ..................................................... 23

C. The Decision Below Has Thrown EPA’s

Implementation of the Safe Alternatives

Policy into Chaos.......................................... 27

II. The Decision Below Is Wrong ........................... 31

Conclusion ................................................................. 37

Table of Contents—Continued

Page

Appendices

Appendix A: Opinion of the U.S. Court of

Appeals for the District of

Columbia Circuit (Aug. 8, 2017) .... 1a

Appendix B: Order Denying Rehearing En

Banc (Jan. 26, 2018) ..................... 47a

Appendix C: 40 C.F.R. Part 82, Subpart G—

Significant New Alternatives

Policy Program ............................. 49a

Appendix D: Protection of Stratospheric

Ozone: Change of Listing Status

for Certain Substitutes Under the

Significant New Alternatives Policy Program, 80 Fed. Reg. 42,870

(July 20, 2015) (excerpts) ............. 73a

TABLE OF AUTHORITIES

Cases

Page(s)

Chevron U.S.A., Inc. v. Nat. Resources Defense

Council, Inc.,

467 U.S. 837 (1984) ...........................................13, 34

E.P.A. v. EME Homer City Generation, L.P.,

134 S. Ct. 1584 (2014) ............................................ 31

Encino Motorcars, LLC v. Navarro,

136 S. Ct. 2117 (2016) ............................................ 22

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ................................................ 31

F.C.C. v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ................................................ 36

Massachusetts v. E.P.A.,

549 U.S. 497 (2007) ................................................ 31

Michigan v. E.P.A.,

135 S. Ct. 2699 (2015) ............................................ 31

Util. Air Regulatory Grp. v. E.P.A.,

134 S. Ct. 2427 (2014) ............................................ 31

Statutes

28 U.S.C. § 1254(1) ...................................................... 1

42 U.S.C.

§ 7607(b)(1) ............................................................. 31

§ 7671a(a) .................................................................. 7

§ 7671a(b) .................................................................. 7

§ 7671k ............................................................ passim

§ 7671k(a) ........................................................ passim

§ 7671k(b) .................................................................. 3

§ 7671k(b)(1) ........................................................... 23

§ 7671k(b)(3) ........................................................... 23

§ 7671k(c) ........................................................ passim

§ 7671k(d) ...................................................... 7, 18, 35

§ 7671k(e) ................................................................ 36

vii

Regulations

Page(s)

40 C.F.R. pt. 82, subpt. G

§ 82.170(a) ................................................................. 8

§ 82.174 ............................................................... 8, 27

§ 82.174(d) ............................................................... 31

§ 82.180(a)(7) ............................................................ 8

§ 82.180(b) ................................................................. 8

59 Fed. Reg. 13,044 (Mar. 18, 1994) ................. passim

64 Fed. Reg. 3865 (Jan. 26, 1999) ............................. 26

74 Fed. Reg. 66,496 (Dec. 15, 2009) .......................... 10

76 Fed. Reg. 17,488 (Mar. 29, 2011) ................... 10, 33

79 Fed. Reg. 46,126 (Aug. 6, 2014) ..................... 19, 24

80 Fed. Reg. 42,053 (July 16, 2015) .......................... 23

80 Fed. Reg. 42,870 (July 20, 2015) .................. passim

80 Fed. Reg. 69,458 (Nov. 9, 2015) ........................... 19

81 Fed. Reg. 20,535 (Apr. 8, 2016) ............................ 18

83 Fed. Reg. 18,431 (Apr. 27, 2018) .................. passim

Other Authorities

136 Cong. Rec. 3939 (1990) ...................................... 21

American Heritage Dictionary of the English

Language (5th ed. online 2018) ............................. 32

EPA, Risk Management for Trichloroethylene

(TCE) (Dec. 14, 2017) ............................................. 23

EPA, 4JHOJmDBOU/FX"MUFSOBUJWFT1PMJDZ

(SNAP): SNAP Regulations ..................................... 9

Dictionary.com Unabridged (2018) .......................... 32

Merriam-Webster Dictionary (online ed. 2018) ....... 32

Oxford English Dictionary (2d ed. 1989) ................. 32

U.S. Global Change Research Program, Climate Change Impacts in the United States:

Third National Climate Assessment (2014) .......... 25

viii

Other Authorities—Continued

Page(s)

U.S. Dep’t of Def., 2014 Climate Change Adaptation Roadmap (2014) .......................................... 25

Webster’s Third New International Dictionary

(1993)...................................................................... 32

Yangyang Xu et al., The Role of HFCs in Mitigating 21st Century Climate Change, 13 Atmos. Chem. Phys. 6087 (2013) ............................... 24

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the

D.C. Circuit is reported at 866 F.3d 451. App. 1a.

JURISDICTION

The D.C. Circuit issued its opinion on August 8,

2017. App. 1a. The court denied rehearing en banc

on January 26, 2018. App. 47a. On March 8, 2018,

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for certiorari until June 25, 2018. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTES AND REGULATORY

PROVISIONS INVOLVED

Section 612 of the Clean Air Act, Pub. L. No.

101-549, tit. VI, § 602(a), 104 Stat. 2667 (1990) (codJmFEBU64$fL QSPWJEFT

(a) Policy

To the maximum extent practicable, class

I and class II substances [i.e., ozone-depleting

substances] shall be replaced by chemicals,

product substitutes, or alternative manufacturing processes that reduce overall risks to

human health and the environment.

…

Within 2 years after November 15, 1990,

the Administrator shall promulgate rules under this section providing that it shall be unlawful to replace any class I or class II substance with any substitute substance which

the Administrator determines may present

adverse effects to human health or the environment, where the Administrator has idenUJmFE BO BMUFSOBUJWF UP TVDI SFQMBDFNFOU

that—

(1) reduces the overall risk to human

health and the environment; and

(2) is currently or potentially available.

The Administrator shall publish a list of

(A) the substitutes prohibited under this subTFDUJPO GPS TQFDJmD VTFT BOE # UIF TBGF BM

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(d) Right to petition

Any person may petition the Administrator to add a substance to the lists under subsection (c) of this section or to remove a substance from either of such lists. The Administrator shall grant or deny the petition within

90 days after receipt of any such petition. If

the Administrator denies the petition, the

Administrator shall publish an explanation of

why the petition was denied. If the Administrator grants such petition the Administrator

shall publish such revised list within 6

months thereafter. …

Relevant portions of EPA’s regulations implementing § 612 of the Clean Air Act are reproduced at

App. 49a-128a.

STATEMENT OF THE CASE

In 1990, Congress enacted Title VI of the Clean

Air Act, with three goals: to phase out the use of

ozone-depleting chemicals, to replace those chemicals

with the safest possible alternatives, and to incentivize the development of safer alternatives. To that

end, Congress enacted § 612, the aptly-titled “safe alternatives policy.” Section 612 mandates the substitution not simply of non-ozone-depleting alternatives,

but of alternatives that “reduce overall risks to hu-

man health and the environment.”

42 U.S.C.

§ 7671k(a) (emphasis added); see id. § 7671k(b), (c).

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develop safer alternatives, Congress required EPA to

maintain and update lists of prohibited and permissible alternatives, and allowed any person to petition

EPA to move substances from one list to the other.

Id. § 7671k(c), (d).

In 1994, EPA implemented Congress’s mandate

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“SNAP”—program. Since then, EPA has periodically

moved substances from the acceptable to the unacceptable list as technology evolved and safer alternaUJWFTCFDBNFBWBJMBCMF*OUIFmOBMSVMFIFSFBU

issue, EPA prohibited the use of certain HFCs, which

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cantly to global warming, in certain products such as

new commercial refrigeration systems and motorvehicle air conditioners. EPA relied on the development of alternative chemicals that contribute almost

nothing to global warming.

In the decision below, a divided D.C. Circuit disregarded the plain text of the Clean Air Act, gutting

this crucial 25-year-old environmental program and

upending over a billion dollars in U.S. investments

made in reliance on the program. The court held

that EPA is powerless under § 612 to regulate any

company that has previously replaced ozonedepleting chemicals with non-ozone-depleting chemicals—even if the replacement turns out to be worse

overall for human health and the environment than

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and even if safer non-ozone-depleting alternatives

have become available. The court reasoned, in essence, that there can be only one “replacement” per

regulated party, and EPA can only regulate that ini-

tial replacement. The court thus held that EPA

could add HFCs to the prohibited list where a safer

alternative became available, but that EPA could not

apply the prohibition to manufacturers or others that

had already begun using HFCs. Under this Alice-inWonderland approach, the very entities Congress

sought to target—the ones actually manufacturing or

using products with an unsafe substitute—are immune from regulation.

The decision calls out for this Court’s review. It

cuts out the heart of EPA’s statutory authority to ensure the adoption of safer alternative chemicals in

millions of everyday products, from aerosols to airconditioning to refrigeration. SNAP is not a new or

controversial program, and the regulatory provision

banning use of substances on the prohibited list has

been around since 1994. But as Judge Wilkins explained in dissent, the majority’s “extreme” interpretation of § 612 “makes a mockery of the statutory

purpose” to replace ozone-depleting chemicals with

the safest available alternatives. App. 34a-35a.

Petitioners Honeywell and Chemours and their

suppliers have invested over $1 billion in creating

and commercializing alternative CFC replacements

that are safer than HFCs. They made this investment in reliance on the decades-old statutory and

regulatory framework promising to reward innovation in the U.S. market, while their non-U.S. competitors continued to make older, less safe products. The

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vestment, perversely rewards the companies who did

nothing by keeping the U.S. market open to their

products no matter how unsafe, and all but eliminates industry’s incentive to invest in new innovative

and safe chemicals going forward.

The environmental consequences of this decision

are equally alarming. EPA prohibited certain uses of

HFCs because they are so-called super greenhouse

gases that contribute enormously to climate change.

80 Fed. Reg. 42,870, 42,879, 42,944 (2015); J.A. 213.1

HFC use continues to grow rapidly; by 2050, the annual global-warming impact of HFC emissions could

be equivalent to 27% to 69% of the world’s carbon dioxide emissions. Id. The alternative compounds that

petitioners developed have a negligible globalwarming potential, less than 1/1000th of the impact

of HFCs. Id. Whether § 612 of the Clean Air Act allows EPA to prohibit those who have begun using

HFCs from continuing to do so will have profound effects on the climate.

But make no mistake: the health and safety effects of the decision below extend far beyond climate

impacts. The majority held that EPA cannot regulate any product manufacturer once it has “replaced”

its ozone-depleting chemicals with non-ozone depleting substitutes, even if those substitutes later turn

out to cause cancer or kidney damage—or any other

disease. The manufacturer is forever free to continue

using the unsafe substitute. A manufacturer could

even switch from a benign substitute to one EPA has

prohibited for decades.

The decision is irreconcilable with the text and

purpose of the statute and with decades of EPA practice and oversight, and it has created enormous nationwide uncertainty, both for industry and regulators. In a recent guidance document attempting to

apply the court’s decision, EPA admitted that it could

not say what the court even meant by its distinction

“J.A.” refers to the Joint Appendix filed in the D.C. Circuit.

between manufacturers who had already “replaced”

ozone-depleting chemicals and those who had not—

given that manufacturers and others make and use

multiple products in multiple end-uses at multiple

facilities. 83 Fed. Reg. 18,431, 18,435-36 (Apr. 27,

2018). Nor does EPA have any idea how to apply the

decision to retailers or end-users who—to give just

one example—may have replaced ozone-depleting

chemicals with HFCs in some equipment at some

stores but not others.

In the end, EPA gave up trying, stating that it

would not apply any aspect of the 2015 Rule’s HFC

prohibitions against anyone, manufacturer or otherwise, pending a full-blown rulemaking to try to make

sense of the mess the decision below has created.

The result will be an extended period of uncertainty

that could last for years, inevitably followed by many

more years of litigation challenging EPA’s guidance

and the new rulemaking.

The situation is untenable, and this Court should

grant review. A decision of this magnitude gutting

an important, longstanding regulatory scheme would

merit review in any event, but the irreversible environmental consequences and the chaos the decision

has unleashed on a multi-billion-dollar industry render immediate review imperative. The D.C. Circuit

has exclusive jurisdiction over challenges to SNAP

rules. There is no possibility of further percolation,

and the decision below will be permanent unless this

Court steps in.

A. The 1990 Clean Air Act Amendments and

the Significant New Alternatives Policy

1. In 1990, Congress amended the Clean Air Act

to add Title VI, which phases out the use of ozonedepleting substances, commonly used in products

like aerosols, air conditioners, and refrigeration sysUFNT1VC-/P 4UBU DPEJmFEBU

42 U.S.C. §§ 7671-71q). Most relevant here, Title VI

also directs EPA to promulgate regulations governing the development and use of alternatives to certain ozone-depleting substances, particularly chloronVPSPDBSCPOT $'$T BOE IZESPDIMPSPnVPSPDBSCPOT

(HCFCs), which Title VI designates “class I” and

“class II” substances, respectively.

42 U.S.C.

§ 7671a(a)-(b).

Importantly, Congress was not simply concerned

with eliminating ozone-depleting chemicals themselves, but also with ensuring that their elimination

does not result in other dangers to human health or

the environment. Section 612(a) thus provides that,

“[t]o the maximum extent practicable, [ozonedepleting] substances shall be replaced by chemicals,

product substitutes, or alternative manufacturing

processes that reduce overall risks to human health

and the environment.” Id. § 7671k(a) (emphases

added). Section 612(c) implements this directive by

providing that “it shall be unlawful to replace any

[ozone-depleting] substance with any substitute substance which the Administrator determines may present adverse effects to human health or the environment” where alternatives that “reduce[] the overall risk to human health and the environment” are

“currently or potentially available.” Id. § 7671k(c).

Section 612(c) further requires EPA to publish a

list of prohibited substitutes and safe alternatives for

TQFDJmD VTFT Id. And § 612(d) requires EPA to update these lists continually. It allows any person to

petition EPA at any time to “add a substance to” or

“remove a substance from” either list. Id. § 7671k(d).

The statute requires EPA to respond within 90 days

and to publish any revisions to the lists within six

months. Id.

2. In 1994, EPA promulgated regulations establishing the SNAP program, a framework for carrying

out the Agency’s obligation under § 612 to identify

safe alternatives and prohibit the use of less-safe

ones. See 40 C.F.R. pt. 82, subpt. G; 59 Fed. Reg.

13,044 (Mar. 18, 1994). As Congress mandated in

§ 612, SNAP promotes the use of alternatives that

not only present lower overall risks to human health

and the environment relative to the ozone-depleting

substances being phased out, but also lower risks

relative to other potential substitutes. See 40 C.F.R.

§ 82.170(a).

The SNAP regulation adopted a “comparative

risk framework,” under which EPA continually evaluates substitutes by end-use, such as motor-vehicle

air conditioning or aerosol propellants. For each enduse, EPA restricts the use of substitutes that present

relatively higher risks to human health or the environment, considering the cost and availability of alternative substitutes. See 59 Fed. Reg. at 13,046.

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C.F.R. § 82.180(a)(7), (b). The 1994 rule declared that

“[n]o person may use a substitute after” the effective

date of a rule adding the substitute to the unacceptable list. 40 C.F.R. § 82.174(d).

The 1994 rule also made clear that listings, once

made, are not set in stone. EPA interpreted § 612 in

1994 to permit the Agency to change the acceptability status of substitutes based on new data regarding

other substitutes, so that substitutes could be prohibited in favor of safer substitutes as they were developed. 59 Fed. Reg. at 13,047, 13,063. EPA explained

that its ability to remove substances from the acceptable list would maintain “marketplace incentive[s] for continuing research and investment into

new, potentially environmentally superior substiUVUFTw 3FTQPOTF UP $PNNFOUT PO UIF 4JHOJmDBOU

New Alternatives Policy Rule (1994 RTC) 10 (Mar.

15, 1994) (reproduced at J.A. 37-129).

EPA further explained that “[ozone-depleting

substances] are ‘replaced’ within the meaning of section 612(c) each time a substitute is used, so that

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future use of such substitute is prohibited.” 59 Fed.

Reg. at 13,048. In other words, when a product manufacturer that used ozone-depleting chemicals makes

a refrigerator with a substitute chemical on Monday,

it is still “replacing” ozone-depleting chemicals when

it makes a second refrigerator with a substitute on

Tuesday. Otherwise, EPA noted, a manufacturer

could end-run the Agency’s regulatory authority by

starting to use a non-ozone-depleting substitute before EPA had a chance to deem it unacceptable, thus

forever insulating use of potentially dangerous substitutes from regulation. Id.

3. EPA has continually maintained and updated

the lists of acceptable and unacceptable substitutes

for each end-use. Since 1994, the Agency has issued

21 rules and 33 notices concerning the SNAP program, and has consistently exercised its authority to

add substances to the prohibited list as safer substitutes became available. See EPA, 4JHOJmDBOU /FX

Alternatives Policy (SNAP): SNAP Regulations,

goo.gl/Uq1GjC.

B. The 2015 Rule

1. When EPA promulgated the 1994 rule, the

Agency approved certain HFCs, like HFC-134a, as

“near-term option[s]” to replace certain ozonedepleting chemicals. See 59 Fed. Reg. at 13,072.

HFCs are used in a variety of applications, including

aerosols, foams, refrigeration, and air conditioners.

But while HFCs do not deplete the ozone layer, they

are extremely potent greenhouse gases and major

contributors to climate change. J.A. 201, 205. Recognizing as much, and consistent with EPA’s view

that it could disapprove previously-approved substitutes, the Agency in 1994 approved HFCs but reserved the option to prohibit their continued use later. 59 Fed. Reg. at 13,071-72.

Since then, HFC use has increased dramatically—and is expected to accelerate with increased demand for refrigeration and air conditioning worldwide. J.A. 237. At the same time, EPA and the scienUJmD DPNNVOJUZ IBWF DPNF UP CFUUFS VOEFSTUBOE UIF

harmful effects of greenhouse gases, including HFCs,

on human health and the environment. EPA has

concluded that the adverse effects of climate

change—both observed and projected—include sickOFTTPSNPSUBMJUZGSPNSFEVDFEBJSRVBMJUZ JOUFOTJmFE

heat waves, and more frequent and intense storms

and droughts.

74 Fed. Reg. 66,496, 66,497-99,

66,516-36 (Dec. 15, 2009).

2. Honeywell and Chemours have invested sigOJmDBOUMZ UP SFTFBSDI BOE EFWFMPQ OFX TBGFS TVCTUJ

tutes for CFCs that neither deplete the stratospheric

ozone layer nor materially contribute to climate

change. These investments culminated in the invention of the breakthrough product HFO-1234yf and

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HFO-1234yf as a substitute for CFC-12 for use in

motor-vehicle air-conditioning systems. 76 Fed. Reg.

17,488, 17,489 (Mar. 29, 2011). HFO-1234yf does not

deplete the ozone layer and has a global-warming po-

tential that is 99.98% less than that of HFC-134a, an

original substitute for CFCs. See 80 Fed. Reg. at

42,888.

Similarly, Honeywell developed HFO1233zd(E), which can replace ozone-depleting chemicals in foam blowing and other applications and reduces carbon-dioxide equivalent emissions by 99.3%

to 99.9% compared to HFCs. J.A. 247.

3. In 2015, after a lengthy rulemaking process,

EPA determined that certain HFCs should be removed from the SNAP acceptable-substitutes list and

placed on the unacceptable list for certain end-uses.

80 Fed. Reg. at 42,870. EPA concluded that certain

HFCs in certain products and uses posed a greater

risk to human health and the environment than other available CFC substitutes. Id. at 42,871-73. EPA

explained that its decision furthered “the overall goal

of the SNAP program … to ensure that substitutes

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risk[s] to human health and the environment than

other available substitutes.” Id. at 42,877.

EPA tailored its analysis by sector (e.g., aerosols,

foams, refrigeration, or air conditioning) and by speDJmD FOEVTF e.g., aerosol propellants or aerosol solvents). For example, EPA determined that HFC134a remains acceptable for use in certain cleaning

products due to the lack of safer available alternatives. But EPA determined that HFC-134a is no

longer acceptable in most new motor-vehicle air conditioners beginning in 2021, because HFO-1234yf

and other substitutes are both safer and available for

that end-use. Id. at 42,888.

C. Proceedings Below

1. Respondents Mexichem Fluor and Arkema are

multinational corporations that make HFC-134a for

use in a variety of products, but have not developed

and do not produce HFC alternatives. They petitioned for review of the 2015 Rule in the D.C. Circuit.

They argued that EPA lacked authority to prohibit

HFCs, on the theory that HFCs had already “replaced” ozone-depleting chemicals in various sectors

and that EPA could not order “replacements of replacements.” App. 38a (quoting Pet’rs’ Br. 29). They

further claimed that EPA’s decision to move certain

HFCs to the unacceptable-substitute list was arbitrary and capricious. Petitioners Honeywell and

Chemours, along with the Natural Resources Defense Council, intervened below in support of the

EPA.

2. The court of appeals unanimously concluded

that § 612 allows EPA to consider the risks of climate

change, and that EPA could permissibly move HFCs

to the unacceptable substitute list because HFOs and

other alternatives with substantially lower globalwarming potentials are now available. App. 22a-25a.

The court held that EPA had properly concluded that

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than these safer, available alternatives. App. 23a.

But, in a divided decision, the court held that

EPA lacks authority under § 612(c) to apply the prohibition against continued use of HFCs to manufacturers that had already “replaced” ozone-depleting

substances with HFCs. In both the 1994 regulations

and the 2015 Rule, EPA had explained that § 612(c)

renders it “unlawful to replace any [ozone-depleting

substance] with any substitute substance” where an

available alternative substitute would reduce overall

risk to human health or the environment. EPA advised the court that the 2015 Rule simply rendered it

unlawful to continue to replace ozone-depleting substances with certain HFCs for end-uses where safer

alternatives were now available. App. 13a-14a. Un-

der Chevron, the court was required to defer to EPA’s

reasonable interpretation of § 612. But the court did

not defer. It held that, under step one of Chevron,

“replace” has only one meaning—to “take the place

of” the thing that came immediately before—and

that, consequently, a “replacement” of an ozonedepleting substance can only happen once. App. 14a16a.

The court accordingly held that if a product

manufacturer had substituted HFCs for an ozonedepleting chemical at any point prior to 2015, then

any subsequent chemical the manufacturer used did

not “replace” an ozone-depleting chemical, even if the

chemical’s sole purpose was to perform the function

of the ozone-depleting chemical. App. 11a-15a. The

court thus “vacate[d] the 2015 rule to the extent it

requires manufacturers to replace HFCs with a substitute substance.” App. 26a. The court stated in a

footnote that its reasoning “applie[d] to any regulated parties,” not just manufacturers. App. 10a.

3. Judge Wilkins dissented. He explained that

the plain text of the statute at minimum permitted

EPA’s interpretation, because “the term ‘replace’ is

susceptible of multiple interpretations in this context.” App. 27a. Indeed, while the majority asserted

that “replace” can only mean “to take the place of,”

Judge Wilkins observed that every dictionary the

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supported EPA’s interpretation. App. 30a. The dictionaries provide that “replace” can also mean “to

provide a substitute for,” in the sense that HFCs and

HFOs both serve as substitutes for ozone-depleting

substances. Id. Judge Wilkins criticized the majority for disregarding Chevron. App. 37a.

Judge Wilkins further observed that the court’s

holding “makes a mockery of the statutory purpose”

to replace ozone-depleting chemicals “[t]o the maximum extent practicable” with substitutes that “reduce overall risks to human health and the environment.” App. 34a (quoting 42 U.S.C. § 7671k(a)). Under the majority’s interpretation, manufacturers and

others who replace an ozone-depleting chemical with

a substitute have a permanent grandfather clause

for use of that substitute, no matter how harmful it

turns out to be or how safe newer substitutes are in

comparison. Id. And they can easily circumvent the

statutory scheme simply by replacing an ozonedepleting chemical with a non-ozone-depleting substitute before EPA has a chance to evaluate it. Id.

Judge Wilkins noted that the majority’s

“cramped” interpretation of § 612 was so “extreme”

that not even Mexichem and Arkema had advanced

it. App. 35a. He observed that the majority’s interpretation rendered EPA “powerless” under § 612 and

had “no semblance of consistency” with Congress’s

purpose to reduce “overall risks” to human health

and the environment. App. 34a-35a.

4. On remand, EPA and industry stakeholders

have struggled to understand, much less apply, the

court’s opinion and judgment. In recently published

guidance, EPA has explained that, not only has the

partial vacatur of the 2015 Rule caused “substantial

confusion and uncertainty,” but EPA is incapable of

implementing it. 83 Fed. Reg. at 18,433-34. Although the court vacated the 2015 Rule only “to the

extent it requires manufacturers to replace HFCs

with a substitute substance,” App. 26a, EPA stated

that the distinction the court drew was irreconcilable

with the way the SNAP program has operated since

1994. EPA accordingly declared that, pending a new

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time, it “w[ould] not apply the HFC use restrictions

or unacceptability listings in the 2015 rule for any

purpose”—even for purposes the D.C. Circuit upheld

as lawful, such as prohibiting manufacturers from

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18,433 (emphasis added).

REASONS THE PETITION SHOULD BE GRANTED

The Decision Below Upends an Important

Federal Regulatory Scheme, Undermines

Investments, and Will Harm the Environment

The “safe alternatives policy” mandated by § 612

is an immensely consequential federal program designed to foster the development and use of the safest available substitutes for ozone-depleting substances in millions of products. The decision below

eviscerated it. The vast majority of manufacturers

today have already begun using substitutes for

ozone-depleting chemicals, but many substitutes

threaten harm to health and the environment. The

decision robs EPA of the authority to regulate substitutes in precisely the circumstances on which § 612

focuses: where companies are in fact using less-safe

substitutes despite the ready availability of safer

ones. The decision drains an extremely effective 25year-old federal statute of nearly all its force, and

this Court’s review is warranted for that reason

alone.

At the same time, the decision upends investment-backed expectations of petitioners and other

companies who heeded Congress’s call to innovate,

based on the promise that EPA would bar unsafe

products as safer alternatives were developed. Petitioners and their suppliers invested over $1 billion in

reliance on this longstanding statutory and regulato-

ry regime. The decision below renders the statutory

incentives a nullity and will spur a race to the bottom in which manufacturers may compete to supply

and use the cheapest substitutes on the market, disregarding environmental or health consequences.

And those consequences will be severe and irreparable. The court held that § 612 permits manufacturers who are using HFCs as substitutes for ozonedepleting chemicals across the air-conditioning, refrigeration, aerosol, and countless other sectors to

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though HFCs are the fastest-growing contributor to

climate change; scientists estimate that by 2050 the

climate effects of HFC emissions could be equivalent

to 27% to 69% of the world’s total carbon dioxide

emissions. EPA has no viable regulatory authority in

this space other than § 612.

The decision is also causing chaos for U.S. businesses. EPA has explained that it can neither administer nor enforce the D.C. Circuit’s distinction between manufacturers who have already “replaced”

ozone-depleting chemicals and those who have not.

83 Fed. Reg. at 18,435. EPA has accordingly given up

on carrying out the regulatory scheme. The Agency

announced that it will not apply its prohibition of

HFCs at all—even as to manufacturers and others

who have not yet “replaced” ozone-depleting chemicals—pending a rulemaking that has yet to commence and that is of uncertain scope and duration.

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disruptive to the express statutory purpose, to the

environment, and to industry than the decision below. This Court’s review is urgently needed.

A. The Decision Below Disrupts a Critical,

Carefully-Crafted

Federal

Program

Designed to Promote the Safety of Millions

of Products

1. The decision below dramatically curtails EPA’s

authority under § 612 of the Clean Air Act and guts

an immensely consequential regulatory program.

Since 1994, § 612 has been the principal means

by which the government regulates the health and

environmental impacts of refrigerants, foam-blowing

agents, and propellants used in air conditioners, refrigeration, foams, aerosols, and solvents—ubiquitous

products that historically were ozone-depleting. 80

Fed. Reg. at 42,874; J.A. 504-05. In Title VI, Congress directed the phase-out of these ozone-depleting

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cally directs EPA to ensure that companies use the

safest available substitutes, the ones that “reduce

overall risks.” 42 U.S.C. § 7671k(a), (c). EPA’s continually-updated lists of acceptable and unacceptable

substitutes are the statutorily mandated mechanism

by which the Agency implements Congress’s directive. Id. Since 1994, EPA has issued more than a

dozen rules requiring companies ranging from automobile manufacturers to supermarkets to phase out

harmful substitutes where safer substitutes are

available.

The decision below renders Congress’s express

directive a dead letter. As Judge Wilkins observed in

dissent, the decision means that, once a manufacturer has substituted a non-ozone-depleting substance

for an ozone-depleting substance, EPA loses all authority under § 612 to ensure the safety of that substitute. App. 34a-35a. The lists of prohibited and

permissible substitutes that §§ 612(c) and (d) require

EPA to maintain and continually update will become

toothless, as will the petition process in § 612(d). The

decision below means that EPA cannot require the

very parties that are using the prohibited substitute

to stop. EPA is limited instead to applying its prohibition to the few companies still using ozonedepleting substances. In short, the decision perversely immunizes the continued use of the very

chemicals that are most widespread and that cause

the most risk to human health and the environment—such as HFCs. And the decision impedes

their replacement by newer and safer chemicals,

frustrating Congress’s goal in enacting § 612 and

creating the SNAP program.

2. The consequences are breathtaking. Under

the decision below, every manufacturer or end user

that has ever replaced an ozone-depleting chemical

with an HFC now has a license to continue using

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can serve the same function. HFCs, like the ozonedepleting products for which they substitute, are

used in nearly every aspect of everyday life to create

foam, propel liquids and gases, and adjust temperatures. They are used in commercial, industrial, and

consumer refrigeration and air-conditioning equipment, vehicle air conditioners, foam products, aeroTPMT mSFQSPUFDUJPOTZTUFNT BOETPMWFOUT+"

It is hard to overestimate the sheer number of

products this decision unsettles. U.S. manufacturers

sold nearly four billion units of aerosol products in

2011. J.A. 506. A mere subset of HFC-containing

aerosol products known as “consumer aerosols” includes “[c]osmetics, hairspray, body sprays, and deoEPSBOUT BVUPNPUJWF QSPEVDUT TVDI BT UJSF JOnBUPST

auto lubricants, and brake cleaners; noise horns and

safety horns; animal repellants; spray adhesives …;

household cleaning products; hand-held spray paint

cans; eyeglass and keyboard dusters; consumer

freeze sprays …; air fresheners; food dispensing

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ers, and cork poppers.” 79 Fed. Reg. at 46,136.

Mobile air conditioning offers a paradigmatic

window into the importance of the decision below. As

of 2017, the U.S. produced more than 11 million new

cars and light trucks annually; 98% have air conditioning.2 In other words, just with respect to cars

and trucks, the decision below frees manufacturers to

produce millions of vehicles in the coming decade using HFCs, notwithstanding the availability of alternatives with 1/1000th of the global-warming impact.

80 Fed. Reg. at 42,879.

The impact on refrigeration is likewise enormous. As of 2013 there were roughly 6 million commercial refrigeration systems in use in the United

States, with roughly 600,000 new units sold each

year. J.A. 528. Many of these systems leak refrigerants at a rate of 20% per year or more. 80 Fed. Reg.

69,458, 69,488-89 (Nov. 9, 2015). The decision frees

millions of new refrigeration systems to use HFCs in

the coming decade, notwithstanding that there are

available substitutes with zero global-warming potential. 80 Fed. Reg. at 42,904.

3. The immediate impact of the decision below,

moreover, is not limited to HFCs or to global warming. It also guts EPA’s authority under SNAP to require manufacturers to discontinue use of carcinoHFOT UPYJOT nBNNBCMF QSPEVDUT BOE PUIFS IBSNGVM

chemicals even where safer alternatives are readily

Automotive News Data Center, North American Car & LightTruck Production (Jan. 2018), available at autonews.com; J.A.

522.

available. The decision permanently grandfathers all

non-ozone-depleting substitutes. For example, the

decision below effectively stops EPA from ever revisiting the use of a solvent like trichloroethylene (TCE)

as a substitute cleaning solvent, even though EPA

has determined that it is highly toxic and a likely

carcinogen. 81 Fed. Reg. 20,535, 20,536 (Apr. 8,

2016). To be sure, under the decision below, EPA

may still add TCE to the prohibited list, but it will be

powerless to apply the prohibition against those already using TCE.

Going forward, the decision effectively eliminates

EPA’s ability to regulate cautiously or incrementally,

by radically amplifying the stakes of EPA’s initial decision to allow or prohibit a particular substitute. As

an example, EPA in 1994 approved HFCs as a “nearterm” substitute for CFCs while the industry developed safer alternatives with less global-warming potential. 80 Fed. Reg. at 42,939 (citing 59 Fed. Reg. at

13,071-72). But the D.C. Circuit’s decision means

there can be no such thing as a “near term” substitute. The moment a non-ozone depleting substitute

is used, it is grandfathered forever. EPA can completely prohibit that substitute only by banning it

immediately upon its development, before it has ever

been used. If the substitute’s dangers are discovered

later, it is nonetheless immune from regulation.

Indeed, the holding below reaches further still,

encouraging and rewarding gamesmanship by manufacturers. As Judge Wilkins explained, the statute

only prohibits the use of substitutes on the prohibited list; it does not mandate the use of substitutes on

the acceptable list. App. 34a. Thus, under the decision below, a manufacturer could forever escape

SNAP oversight simply by commencing use of a substitute before EPA is able to complete its initial eval-

uation. Id. The decision thus incentivizes manufacturers to rush to replace remaining ozone-depleting

chemicals with the cheapest substitutes before EPA

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Judge Wilkins explained that “Congress desired

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concept that promotes those alternatives that pose

the least overall risk to human health and the environment.” App. 36a. The decision below does the opposite, and this Court’s review is imperative.

4. Beyond rewarding companies that switch to

unsafe substitutes, the decision below also destroys

the substantial reliance interests of petitioners and

others who invested to develop safer alternatives to

ozone-depleting chemicals based on Congress’s promise in § 612. And the decision obliterates incentives

to innovate in the future.

A key goal of § 612’s aptly-named “safe alternatives policy” is fostering innovation to continually reduce risks to health and the environment. The statute rewards innovators by requiring EPA to ban continued use of older, unsafe chemicals once innovative

alternative substitutes are “currently or potentially

available.” § 7671k(c). Congress placed its “faith in

the ingenuity of the manufacturers in this realm of

industry” to make “investments that are needed,

which should start now, on truly safe substitutes.”

136 Cong. Rec. 3939 (1990) (statement of Sen. Gore).

Over the past decade, petitioners and their suppliers have invested more than $1 billion to develop

and manufacture safer alternatives to ozonedepleting chemicals. Honeywell and its suppliers

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R&D and production capacity, and recently opened a

$300 million manufacturing facility in Louisiana.

Chemours has similarly invested hundreds of millions of dollars bringing alternative products to market, and recently broke ground on a $300 million

production facility in Ingleside, Texas, that will triple

the company’s capacity to produce HFO-1234yf.

Honeywell’s and Chemours’s substantial investments resulted in the invention and commercialization of HFOs, revolutionary substances that have

nearly all of the desirable performance characteristics of CFCs but none of the ozone-depleting impacts,

and virtually none of the global-warming impacts of

HFCs. Petitioners made these investments in environmentally superior technology in reliance on § 612

and the SNAP program, on the understanding that

successful development of a safer substitute would be

rewarded. As this Court has often recognized, agency

regulations can “engender[] serious reliance interests.” Encino Motorcars, LLC v. Navarro, 136 S. Ct.

2117, 2126 (2016). 5IF EFDJTJPO CFMPX TJHOJmDBOUMZ

prejudices companies that invested and structured

their activities in reliance on SNAP, and therefore

merits review.

Going forward, the decision eviscerates incentives to engage in future research and development

of safer alternatives to ozone-depleting chemicals,

and advantages cheap foreign substitutes being

dumped on the market, because EPA now lacks the

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substitutes. This is unfortunate, because SNAP has

been an instrumental driver of innovation in a number of industries. Consider the evolution of cleaning

solvents since 1990. Originally, many industrial solvent makers replaced CFCs with TCE, an inexpensive but highly toxic and potentially carcinogenic solvent. See The U.S. Solvent Cleaning Industry and the

Transition to Non-Ozone Depleting Substances i-iii,

26-27 (2004).3 SNAP spurred Chemours to develop

progressively safer substitutes, culminating in the

introduction in 2015 of MPHE, a cleaning agent that

is non-ozone-depleting, non-carcinogenic, and lowtoxicity. See 80 Fed. Reg. 42,053, 42,053-66 (July 16,

2015). Despite TCE’s dangers, however, it is not an

ozone-depleting chemical, and the decision below

thus immunizes current users of TCE against any

SNAP prohibition.

For years, the SNAP program has delivered on

its key goal of promoting research and development

of safer alternatives. 42 U.S.C. § 7671k(b)(1), (3).

But, left undisturbed, the decision below will eliminate the economic incentive to innovate. Less-safe

chemicals are often less expensive, and in the wake

of the decision below, the remaining incentive is to

develop and use cheaper chemicals, not safer ones.

This Court’s review is necessary to stop the inevitable race to the bottom the decision encourages, and to

restore the incentives to innovate that Congress envisioned and made law.

B. The Environmental and Health Consequences of the Decision Below Are Enormous

1. The decision below demonstrably increases the

likelihood of disastrous climate impacts from global

warming. HFCs are super greenhouse gases, over a

thousand times more powerful than carbon dioxide,

80 Fed. Reg. at 42,879; J.A. 213. HFC-134a, the most

abundant HFC in use today, is “1,430 times more

damaging to the climate system than carbon dioxide.” 80 Fed. Reg. at 42,879. As a result, even small

quantities of HFCs in the atmosphere can do serious

EPA, Risk Management for Trichloroethylene (TCE) (Dec. 14,

2017), goo.gl/FPscXP.

climate damage. 79 Fed. Reg. at 46,135; 80 Fed. Reg.

at 42,936; J.A. 135, 260.

EPA’s 2015 Rule, ending use of certain HFCs

where there are CFC substitutes with dramatically

lower global-warming impacts, went a long way toward checking the growth in use of these chemicals.

HFCs were predominantly commercialized to replace

CFCs and HCFCs. J.A. 212, 223, 237. As noted previously, in listing HFCs as acceptable substitutes for

CFCs in 1994, EPA, aware that HFCs “could contribute to global warming,” labeled them a “near-term

option for moving away from CFCs.” 80 Fed. Reg. at

42,939 (citing 59 Fed. Reg. at 13,071-72). EPA never

expected them to be a permanent solution. But HFC

emissions are now increasing more quickly in the

United States than any other greenhouse gas, and

their contribution is only expected to grow in the

coming decades. 80 Fed. Reg. at 42,879. Atmospheric concentrations of HFCs are increasing by 10% per

year or more. Id.

The consequence of the decision below, however,

is that any manufacturer that has once replaced

ozone-depleting chemicals with HFCs is free to continue using them forever, at enormous cost to the environment. Globally, the continued unchecked use of

HFCs, by themselves, could lead to a 1° Fahrenheit

increase in temperatures over the next 100 years.4

Left unchecked, by 2050 the climate effects of annual

HFC emissions could be equivalent to 27% to 69% of

the world’s annual carbon dioxide emissions. 80 Fed.

Reg. at 42,879.

Yangyang Xu et al., The Role of HFCs in Mitigating 21st Century Climate Change, 13 Atmos. Chem. Phys. 6087 (2013),

goo.gl/e99Uod.

By effectively insulating HFCs from regulation

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tribute to the harms projected to occur from climate

change: stronger and more frequent heat waves,

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hurricanes and storms, changes in the location and

amount of arable cropland worldwide, widespread deGPSFTUBUJPOBOEEFTFSUJmDBUJPO UIFEFDJNBUJPOPGTFW

eral island nations, the dissolution of the northern

polar ice cap, the death of the Great Barrier reef, the

displacement of millions of people, and the loss, ultimately, of several major coastal cities to rising seas.

J.A. 135, 275-76.5 This Court’s review is warranted

for that reason alone.

2. The decision below is doubly important because its costs so disproportionately outweigh its

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from HFCs to HFOs would be minimal. For air conditioners in light-duty vehicles, the cost is “less than

1% relative to the total direct manufacturer cost for a

light duty vehicle.” 80 Fed. Reg. at 42,898. EPA determined that across all sectors of the economy, the

2015 Rule would have an impact “well below” $100

million per year. 80 Fed. Reg. at 42,944, 42,949. Although 500,000 small businesses could be affected by

the rule, more than 99% of those businesses were expected to experience zero compliance costs. 80 Fed.

Reg. at 42,949.

In contrast to these negligible compliance costs,

EPA calculated that the rule would have a tremen5

See, e.g., U.S. Dep’t of Def., 2014 Climate Change Adaptation

Roadmap 2 (2014), goo.gl/KLBs27; U.S. Global Change Research Program, Climate Change Impacts in the United States:

Third National Climate Assessment 7-17 (2014), goo.gl/B8uJQP.

dous positive impact on climate change, potentially

preventing the annual emission of the equivalent of

100 million metric tons of carbon dioxide by 2030.

Id. The disparity strongly militates in favor of this

Court’s review.

3. The health and environmental consequences of

the decision extend far beyond global warming. Although this matter concerns HFCs, which contribute

substantially to climate change, nothing in the D.C.

Circuit’s decision was limited to that particular risk.

The holding below equally restricts EPA from

addressing other health and safety risks from nonozone-depleting substitutes already in use. Some

such substitutes (e.g., ammonia) are toxic. Others

(e.g. IZESPDBSCPOT BSF nBNNBCMF BOE QPUFOUJBMMZ

explosive. The decision below bars EPA from prohibiting the use of any such substitutes under SNAP, no

matter what risks they may pose in comparison to

other available alternatives.

This is not a hypothetical concern. For example,

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(HFP), which is non-ozone-depleting, as a substitute

for ozone-depleting chemicals in the refrigeration

and air-conditioning sectors. But in 1999, EPA added HFP to the unacceptable substitute list after

learning that it caused kidney damage. 64 Fed. Reg.

3865, 3867 (Jan. 26, 1999). Under the decision below,

however, EPA would have been powerless to prevent

manufacturers or anyone else from using HFP as a

substitute for ozone-depleting chemicals so long as

they had been early adopters. Indeed, under the decision below, a company that is currently using a safe

substitute could start using HFPs now. Such nonsensical results militate in favor of this Court’s review.

C. The Decision Below Has Thrown EPA’s

Implementation of the Safe Alternatives

Policy into Chaos

This Court’s review is further warranted because

the decision below is causing chaos at EPA and in the

industry. EPA took the position that the distinction

the D.C. Circuit drew between manufacturers who

have and have not stopped using ozone-depleting

chemicals is irreconcilable with the statutory language and regulatory scheme and cannot even be

administered. As a consequence, EPA has overstepped the court’s decision, announcing that henceforth it will not apply the 2015 Rule at all—even the

parts the D.C. Circuit upheld—until it can engage in

a new rulemaking.

1. In a guidance document issued shortly after

the D.C. Circuit denied rehearing en banc, EPA put it

starkly: “[R]egulated entities are experiencing substantial confusion and uncertainty regarding the

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tions.” 83 Fed. Reg. at 18,434. That is because, since

1994, EPA’s regulations have provided that “[n]o person may use a substitute after” EPA has added the

substitute to the unacceptable list.

40 C.F.R.

§ 82.174. As EPA explained, the 1994 rule “has applied to all users (e.g., product manufacturers, intermediate users, end-users) within a regulated end-use

without making distinctions between product manufacturers and other users or between those who were

using ozone-depleting substances (ODS) at the time

a substitute was listed as unacceptable and those

who were not.” 83 Fed. Reg. at 18,433. Similarly, the

2015 Rule that the D.C. Circuit partially vacated

made no such distinctions. Id.

As a consequence, EPA explained, the distinction

the D.C. Circuit drew makes no sense in the context

of the SNAP program and is not a distinction that

the program, as currently structured, can accommodate. The court’s ruling makes the identity of the

product manufacturer—and whether that particular

manufacturer has ever stopped using ozonedepleting chemicals—of central importance. As EPA

explained, however, even deciding who is a “manufacturer” in the context of a particular product covered

by SNAP would require rulemaking, because “some

appliances are shipped fully assembled and charged”

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Id. at 18,434. And manufacturers have never before

been required to document the date of a switch from

CFCs to HFCs. Id. at 18,434-35.

EPA observed that the distinction the D.C. CirDVJUESFXXJMMCFFYUSFNFMZEJGmDVMUUPBDDPNNPEBUF

even through a rulemaking. Id. at 18,435. Manufacturers own multiple facilities, have multiple production lines, and make multiple products, including

products that could operate with or without ozonedepleting chemicals. EPA cannot simply distinguish

between manufacturers that have “replaced ozonedepleting substances with HFCs” and those who

have not, App. 12a, as the court below put it. For example, EPA explained, a manufacturer of supermarket refrigeration equipment might currently produce

new equipment designed to operate with HFCs but

also assist customers with replacing parts of systems

that use ozone-depleting chemicals. 83 Fed. Reg. at

18,435. May EPA regulate that manufacturer? The

court does not say.

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cant. The D.C. Circuit noted in a footnote that its interpretation “applies to any regulated parties,” App.

10a, suggesting that an end-user such as a supermarket that has replaced ozone-depleting chemicals

with HFCs in its refrigeration systems could not be

required to use HFOs instead, while a supermarket

that still used some ozone-depleting chemicals could

be required to use HFOs. How are these things to be

measured? If a chain of supermarkets uses HFCs in

some of its stores and ozone-depleting chemicals in

others, is the chain subject to EPA regulation? Only

the stores that haven’t switched? Only the refrigerators within a store that have ozone-depleting chemicals but not the refrigerators with HFCs? Again, the

court does not say.

The court’s interpretation threatens to immensely complicate the regulatory scheme and increase the

burden on end-users. As EPA noted, until now, endusers—which include many smaller businesses—

have relied on manufacturers to ensure their own

compliance with the statute; if the manufacturer was

still using a chemical for a particular end-use, the

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permissible. 83 Fed. Reg. at 18,436. But the decision

below renders such reliance impossible, because a

manufacturer may be exempt from § 612 but an enduser may not be. Each end-user will now have to individually monitor its own “replacement” status,

product by product and perhaps unit by unit. Id. at

18,435-36.

In short, as EPA explained, “[t]he court’s interpretation of CAA section 612 raises potentially comQMFY BOE EJGmDVMU JNQMFNFOUBUJPO RVFTUJPOT GPS UIF

SNAP program.” Id. at 18,435. Put differently, the

decision below has created an utter mess.

2. EPA has taken the position that it is impossible to implement the partial vacatur the D.C. Circuit

ordered. EPA declared in its recent guidance document that, until it completes a new rulemaking ad-

dressing the questions just described and others, it

will not apply the HFC prohibitions in the 2015 Rule

at all. 83 Fed. Reg. at 18,435. In other words, because of the confusion the decision has created, a

manufacturer that has never made the switch from

ozone-depleting chemicals to HFCs may now switch

to HFCs in violation of the 2015 Rule and then continue to use HFCs forever. That is so even though

the D.C. Circuit held unequivocally that the 2015

Rule is lawful as applied to such a manufacturer.

3. This Court’s intervention is necessary to clear

up the confusion created by the decision and the

guidance and stave off their severe consequences.

The distinctions EPA is being called upon to draw

are at once so byzantine and so arbitrary that they

effectively prove the wrongness of the decision below.

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EPA should not be required to go through a lengthy

and complex rulemaking—one that leaves regulated

parties and innovative companies in limbo for possibly several years—when this Court’s review could

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place by restoring the proper interpretation of the

statute.

The decision’s impenetrability, and EPA’s resultant inability to understand what it needs to do in response, multiplies the effects of the error below. Because EPA has ceased applying the new SNAP rule,

there will be a delay of years before any HFC prohibitions are in effect. Every year’s delay multiplies

the economic and environmental consequences of inaction. Every year’s delay means millions more new

products with HFCs, millions more dollars on R&D

foregone, millions more past investment dollars

wasted, and the equivalent of millions more metric

tons of carbon dioxide released to warm the planet.

The consequences of the error below are too grave to

neglect.

***

This Court’s review is warranted immediately.

The D.C. Circuit has exclusive jurisdiction over challenges to Clean Air Act rules implementing § 612, see

42 U.S.C. § 7607(b)(1), meaning there is no possibility

of further percolation and no possibility that a split

will develop. This Court regularly reviews decisions

striking down or upholding EPA regulations and othFSmOBMBDUJPOTJOUIFBCTFODFPGBTQMJUE.g., Michigan v. E.P.A., 135 S. Ct. 2699 (2015); E.P.A. v. EME

Homer City Generation, L.P., 134 S. Ct. 1584 (2014);

Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427

(2014); Entergy Corp. v. Riverkeeper, Inc., 556 U.S.

208, 217 (2009); Massachusetts v. E.P.A., 549 U.S. 497

(2007). Left standing, the decision below will permanently and erroneously constrain EPA’s authority

to protect human health and the environment.

II. The Decision Below Is Wrong

This Court’s review is also warranted because

the decision below is incorrect. The rule that “no

person” may use a chemical EPA had deemed unacceptable was not some new invention; it has been on

the books since 1994. See 40 C.F.R. § 82.174(d). The

court was wrong to upset this nearly 25-year-old understanding based on a challenge in 2015. See 42

U.S.C. § 7607(b)(1) (imposing 60-day jurisdictional

limitation on judicial review of Clean Air Act regulations).

Under § 612(c), it is “unlawful to replace” an

ozone-depleting substance with a substitute that

EPA lists as prohibited because a safer alternative is

available. 42 U.S.C. § 7671k(c). The majority held

that in this context the word “replace” can only mean

one thing: “to take the place of” what immediately

DBNFCFGPSF*OUIFNBKPSJUZTWJFX BMMPUIFSEFmOJ

tions of “replace” are unreasonable. From there, the

majority concluded that an ozone-depleting substance may be “replaced” once and only once, such

that after a manufacturer has transitioned to a nonozone-depleting substitute, there can be no further

iSFQMBDFNFOUw "QQ B 5IJT OBSSPX EFmOJUJPO JT

wrong as a matter of common-sense English usage,

and it is irreconcilable with the structure and express purpose of § 612(c). At a minimum, EPA’s contrary interpretation is a reasonable construction of

the statute.

1. The term “replace” has multiple meanings, including to “substitute for” or “to assume the former

role, position, or function of” something that came beGPSF%JDUJPOBSJFTDPOmSNUIJTDPNNPOTFOTFVOEFS

standing. See The American Heritage Dictionary of

the English Language (5th ed. online 2018); Webster’s Third New International Dictionary 1925

(1993); The Oxford English Dictionary 642 (2d ed.

1989);

Dictionary.com

Unabridged

(2018),

goo.gl/xGD3jb. The term “replacement,” also used in

§ 612(c), likewise has multiple meanings, including

something “that replaces another especially in a job

or function.”

E.g., Merriam-Webster Dictionary

(online ed. 2018) (emphasis added). Section 612(c)

incorporates that meaning when it uses the terms

“substitute substance” and “replacement” interchangeably. See 42 U.S.C. § 7671k(c) (“unlawful to

replace … with any substitute substance” where EPA

IBT JEFOUJmFE B TBGFS iBMUFSOBUJWF UP TVDI SFQMBDF

ment”). Section 612(c)’s language is thus capacious

enough to mean that a user “replaces” an ozonedepleting substance each time it uses another chemi-

DBM UP QFSGPSN UIF TBNF GVODUJPO JO B TQFDJmD FOE

use.

For example, each time an automaker manufactures a car using HFC-134a instead of CFC-12 as an

air-conditioner refrigerant, it uses HFC-134a as a

CFC-12 replacement or substitute. The “replaceNFOU wPSTVCTUJUVUJPO EPFTOPUFOEXJUIUIFmSTUDBS

mSTU NPEFM PS mSTU NPEFMZFBS WFSTJPO QSPEVDFE VT

ing HFC-134a. So long as the substance serves the

same function as CFC-12, it is “replacing” CFC-12.

Contrary to the majority’s suggestion, App. 12a, EPA

approved HFO-1234yf as a replacement for an ozonedepleting substance, namely CFC-12, not for HFC134a (i.e., a “replacement of a replacement”). 76 Fed.

Reg. at 17,489. That is apparent from the fact that

HFO-1234yf was added to the list of acceptable substitutes in 2011, four years before EPA removed

HFC-134a from that list. All EPA did in 2015 was

move HFC-134a from the acceptable substitute list to

UIF QSPIJCJUFE MJTU GPS TQFDJmFE VTFTB NPWF UIF

court below unanimously upheld. This regulatory

IJTUPSZ DPOmSNT UIBU iSFQMBDJOHw P[POFEFQMFUJOH

substances is not a one-time event; it is an ongoing

FOEFBWPS TVQQPSUFE CZ DPOUJOVFE TDJFOUJmD JORVJSZ

and innovation. As new, safer substitutes for ozonedepleting substances are developed, they are replacing the ozone-depleting substances, no less than

HFCs once did.

The majority’s narrow interpretation, based upon

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is contrary to common usage and common sense.

Take sugar. When a person uses saccharin to sweeten coffee, one would naturally say that she used saccharin to “replace” sugar, even if she also used saccharin the day before. Similarly, when Coca-Cola experimented with sucralose instead of aspartame to

sweeten Diet Coke, one would naturally say the company used sucralose as a sugar replacement. As

Judge Wilkins observed, the “ubiquitous product”

(sugar), is “replaced” by any number of functional

substitutes (saccharin, aspartame, sucralose, stevia)

developed “over the course of years” and “not at a

TQFDJmDQPJOUJOUJNF OPUKVTUPODF BOEOPUCZBTJO

gle substitute.” App. 30a-31a.

In any case, the statutory text cannot support

the majority’s insistence that “replace” has only one

reasonable meaning. At a bare minimum, the term

“replace” is ambiguous, and “to substitute for” or “assume … the function of” just as likely manifests

$POHSFTTT JOUFOU BT UIF EFmOJUJPO BEPQUFE CZ UIF

majority below. The decision below is irreconcilable

with the central teaching of Chevron that EPA’s reasonable interpretation of a statutory term merits

deference.

5IF NBKPSJUZT JOUFSQSFUBUJPO OVMMJmFT $PO

gress’ intent that ozone-depleting substances be replaced “[t]o the maximum extent practicable … by

chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment.”

42 U.S.C.

§ 7671k(a).

Since 1994, EPA has exercised authority to “initiate changes to SNAP determinations independent

PG BOZ QFUJUJPOT PS OPUJmDBUJPOT SFDFJWFE w CBTFE PO

“new data on either additional substitutes or on

characteristics of substitutes previously reviewed,”

and considering risks to human health and the environment other than ozone depletion. 59 Fed. Reg. at

13,047. The majority thus acknowledged that “the

lists of safe substitutes and prohibited substitutes

are not set in stone.” App. 6a. “[I]f EPA places a

substitute on the list of safe substitutes, EPA may

MBUFS DIBOHF JUT DMBTTJmDBUJPOw Id. Indeed, § 612(d)

explicitly authorizes anyone, at any time, to petition

EPA to make a change, and requires EPA to act upon

UIBU QFUJUJPO QSPNQUMZ OP NBUUFS XIFO JU XBT mMFE

42 U.S.C. § 7671k(d).

#VU UIF NBKPSJUZ SFOEFSFE &1"T SFDMBTTJmDBUJPO

power all but a nullity by permitting manufacturers

and indeed the entire regulated community to use a

non-ozone-depleting substitute in perpetuity so long

as the user employs that substitute before it is listed

as unacceptable, no matter how unsafe it may later

turn out to be. And the majority did not even attempt to square its decision with the statutory directive that EPA order the substitution of the safest

substitutes “[t]o the maximum extent practicable.”

42 U.S.C. § 7671k(a). Interpreting the statute to bar

EPA from prohibiting continued use of an unsafe

substitute by incumbent users is irreconcilable with

that language.

Taking the majority’s interpretation to its logical

conclusion highlights just how far the decision below

strayed from Congress’s intent. Under the apparent

logic of the decision below, nothing would stop a

manufacturer that previously switched away from

ozone-depleting chemicals from later adopting a substance that has been on the prohibited list since

1994. It could switch to a known carcinogen, and

EPA could do nothing about it. Per the majority, the

“replacement” of the ozone-depleting substance has

already occurred; from that point on, EPA cannot

regulate any further “replacements of replacements.”

App. 38a (Wilkins, J., dissenting) (quoting Pet’rs’ Br.

29).

3. The majority’s statement that EPA previously

disclaimed its authority to prohibit use of non-ozoneEFQMFUJOHTVCTUJUVUFTJTEJGmDVMUUPGBUIPN"QQB

13a. In fact, since 1994, EPA has consistently maintained that “[ozone-depleting substances] are ‘replaced’ within the meaning of section 612(c) each

UJNFBTVCTUJUVUFJTVTFE TPUIBUPODF&1"JEFOUJmFT

an unacceptable substitute, any future use of such

substitute is prohibited.” 59 Fed. Reg. at 13,048.

EPA’s prior statements concerning separate data and

reporting requirements under § 612(e), 42 U.S.C.

§ 7671k(e), have nothing to do with the issue here.

App. 41a-44a (Wilkins, J., dissenting); see 59 Fed.

Reg. at 13,052. In any event, even if the EPA had

changed its position (which it did not), its 2015 interpretation would still warrant the fullest deference.

See F.C.C. v. Fox Television Stations, Inc., 556 U.S.

502, 514 (2009).

The majority also suggested in passing that EPA

could address these problems through “other statutory authorities,” such as the Toxic Substances Control

Act. App. 17a. But the majority provided no support

for its assertion that these other pathways are viable,

particularly for purposes of regulating substances

based on global-warming potential or comparative

risk. Nor are they practical for industry. Section 612

is simply the only statutory authority EPA has to

prohibit the use of ozone-depleting substance substitutes based on comparative risks. Indeed, Congress

presumably enacted § 612’s comparative risk regime

CFDBVTF$POHSFTTWJFXFEFYJTUJOHMBXBTJOTVGmDJFOU

CONCLUSION

The Court should grant certiorari.

Respectfully submitted,

THOMAS A. LORENZEN

LISA S. BLATT

ROBERT J. MEYERS

Counsel of Record

CROWELL & MORING LLP JONATHAN S. MARTEL

1001 Penn. Ave., NW

ELISABETH S. THEODORE

Washington, DC 20004 ANDREW T. TUTT

(202) 624-2500

STEPHEN K. WIRTH

tlorenzen@crowell.com

ARNOLD & PORTER

KAYE SCHOLER LLP

Counsel for Petitioner

601

Mass. Ave., NW

The Chemours Company

Washington,

DC 20001

FC, LLC

(202) 942-5000

lisa.blatt@arnoldporter.com

DAVID B. RIVKIN JR.

BAKER & HOSTETLER LLP

1050 Conn. Ave., NW

Washington, DC 20036

(202) 861-1500

drivkin@bakerlaw.com

Counsel for Petitioner

Honeywell International

Inc.

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 17, 2017

Decided August 8, 2017

No. 15-1328

MEXICHEM FLUOR, INC.

PETITIONER

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

THE CHEMOURS COMPANY FC, LLC, ET AL.,

INTERVENORS

Consolidated with 15-1329

On Petitions for Review of Final Action by the

United States Environmental Protection Agency

Dan Himmelfarb argued the cause for petitioners. With him on the joint briefs were John S. Hahn,

Roger W. Patrick, Matthew A. Waring, William J.

Hamel, W. Caffey Norman, T. Michael Guiffré, and

Kristina V. Foehrkolb.

Dustin J. Maghamfar, Attorney, U.S. Department of Justice, argued the cause for respondent. On

the brief were John C. Cruden, Assistant Attorney

General, Elizabeth B. Dawson, Attorney, U.S. Department of Justice, and Jan Tierney and Diane

McConkey, Attorneys, U.S. Environmental Protection

Agency.

Thomas A. Lorenzen argued the cause for intervenors The Chemours Company FC, LLC, and Honeywell International Inc. in support of respondent.

With him on the brief were Robert J. Meyers, Sherrie

A. Armstrong, Jonathan S. Martel, and Eric A. Rey.

David Doniger, Benjamin Longstreth, Melissa J.

Lynch, and Emily K. Davis were on the brief for intervenor Natural Resources Defense Council in support of respondent.

Before: BROWN, KAVANAUGH, and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit Judge BROWN joins,

and with whom Circuit Judge WILKINS joins as to

Part I and Part III.

Opinion concurring in part and dissenting in

part filed by Circuit Judge WILKINS.

KAVANAUGH, Circuit Judge: The separation of

powers and statutory interpretation issue that arises

again and again in this Court is whether an executive or independent agency has statutory authority

from Congress to issue a particular regulation. In

this case, we consider whether EPA had statutory

authority to issue a 2015 Rule regulating the use of

hydrofluorocarbons, known as HFCs.

According to EPA, emissions of HFCs contribute

to climate change. In 2015, EPA therefore issued a

rule that restricted manufacturers from making certain products that contain HFCs. HFCs have long

been used in a variety of familiar products—in particular, in aerosol spray cans, motor vehicle air conditioners, commercial refrigerators, and foams. But

as a result of the 2015 Rule, some of the manufactur-

ers that previously used HFCs in their products no

longer may do so. Instead, those manufacturers must

use other EPA-approved substances in their products.

As statutory authority for the 2015 Rule, EPA

has relied on Section 612 of the Clean Air Act. 42

U.S.C. § 7671k. Section 612 requires manufacturers

to replace ozone-depleting substances with safe substitutes.

The fundamental problem for EPA is that HFCs

are not ozone-depleting substances, as all parties

agree. Because HFCs are not ozone-depleting substances, Section 612 would not seem to grant EPA

authority to require replacement of HFCs. Indeed,

before 2015, EPA itself maintained that Section 612

did not grant authority to require replacement of

non-ozone-depleting substances such as HFCs. But

in the 2015 Rule, for the first time since Section 612

was enacted in 1990, EPA required manufacturers to

replace non-ozone-depleting substances (HFCs) that

had previously been deemed acceptable by the agency. In particular, EPA concluded that some HFCs

could no longer be used by manufacturers in certain

products, even if the manufacturers had long since

replaced ozone-depleting substances with HFCs.

EPA’s novel reading of Section 612 is inconsistent with the statute as written. Section 612 does

not require (or give EPA authority to require) manufacturers to replace non-ozone-depleting substances

such as HFCs. We therefore vacate the 2015 Rule to

the extent it requires manufacturers to replace

HFCs, and we remand to EPA for further proceedings consistent with this opinion.

In the 1980s, an international movement developed to combat depletion of the ozone layer. Depletion of the ozone layer exposes people to more of the

sun’s harmful ultraviolet light, thereby increasing

the incidence of skin cancer, among other harms. The

international efforts to address ozone depletion culminated in the Montreal Protocol, an international

agreement signed in 1987 by the United States and

subsequently ratified by every nation in the United

Nations. The Protocol requires signatory nations to

regulate the production and use of a variety of ozonedepleting substances. Montreal Protocol on Substances that Deplete the Ozone Layer, opened for

signature Sept. 16, 1987, S. Treaty Doc. No. 100-10,

1522 U.N.T.S. 29.

Congress implemented U.S. obligations under

the Montreal Protocol by enacting, with President

George H.W. Bush’s signature, the 1990 Amendments to the Clean Air Act. Those amendments added a new Title VI to the Clean Air Act. Title VI regulates ozone-depleting substances.

Title VI identifies two classes of ozone-depleting

substances: “class I” and “class II” substances. 42

U.S.C. § 7671a(a), (b). Section 612(a), one of the key

provisions of Title VI, requires manufacturers to replace those ozone-depleting substances: “To the maximum extent practicable, class I and class II substances shall be replaced by chemicals, product substitutes, or alternative manufacturing processes that

reduce overall risks to human health and the environment.” Id. § 7671k(a). With a few exceptions, Title

VI requires manufacturers to phase out their use of

some ozone-depleting substances by 2000, and to

phase out their use of other ozone-depleting substances by 2015. Id. §§ 7671c(b)-(c), 7671d(a).

When manufacturers stop using ozone-depleting

substances in their products, manufacturers may

need to replace those substances with a substitute

substance. Under Section 612(a), EPA may require

manufacturers to use safe substitutes when the

manufacturers replace ozone-depleting substances.

Id. § 7671k(a).

To implement the Section 612(a) requirement

that ozone-depleting substances be replaced with

safe substitutes, Section 612(c) requires EPA to publish a list of both safe and prohibited substitutes:

Within 2 years after November 15, 1990, the

Administrator shall promulgate rules under

this section providing that it shall be unlawful to replace any class I or class II substance

with any substitute substance which the Administrator determines may present adverse

effects to human health or the environment,

where the Administrator has identified an alternative to such replacement that—

(1) reduces the overall risk to human

health and the environment; and

(2) is currently or potentially available.

The Administrator shall publish a list of (A)

the substitutes prohibited under this subsection for specific uses and (B) the safe alternatives identified under this subsection for specific uses.

Id. § 7671k(c). In short, Section 612(c) requires EPA

to issue a list of both authorized and prohibited sub-

stitute substances based on the safety and availability of the substances.

Importantly, the lists of safe substitutes and

prohibited substitutes are not set in stone. Section

612(d) provides: “Any person may petition the Administrator to add a substance to the lists under

subsection (c) of this section or to remove a substance

from either of such lists.” Id. § 7671k(d). In other

words, if EPA places a substance on the list of safe

substitutes, EPA may later change its classification

and move the substance to the list of prohibited substitutes (or vice versa).

In 1994, EPA promulgated regulations to implement Section 612(c). See Protection of Stratospheric

Ozone, 59 Fed. Reg. 13,044 (Mar. 18, 1994). At the

time, EPA indicated that once a manufacturer has

replaced its ozone-depleting substances with a nonozone-depleting substitute, Section 612(c) does not

give EPA authority to require the manufacturer to

later replace that substitute with a different substitute. EPA explained that Section 612(c) “does not authorize EPA to review substitutes for substances that

are not themselves” ozone-depleting substances covered under Title VI. EPA Response to Comments on

1994 Significant New Alternatives Policy Rule, J.A.

50.

Hydrofluorocarbons, known as HFCs, are substances that contain hydrogen, fluorine, and carbon.

When HFCs are emitted, they trap heat in the atmosphere. They are therefore “greenhouse gases.”

But HFCs do not deplete the ozone layer. As a result,

HFCs are not ozone-depleting substances covered by

Title VI of the Clean Air Act. Instead, HFCs are po-

tential substitutes for ozone-depleting substances in

certain products.

In 1994, acting pursuant to its authority under

Section 612(c), EPA concluded that certain HFCs

were safe substitutes for ozone-depleting substances

when used in aerosols, motor vehicle air conditioners, commercial refrigerators, and foams, among other things. See Protection of Stratospheric Ozone, 59

Fed. Reg. at 13,122-46. Over the next decade, EPA

added HFCs to the list of safe substitutes for a number of other products. See, e.g., Protection of Stratospheric Ozone: Listing of Substitutes for OzoneDepleting Substances, 68 Fed. Reg. 4004, 4005 (Jan.

27, 2003); Protection of Stratospheric Ozone; Listing

of Substitutes for Ozone-Depleting Substances, 64

Fed. Reg. 22,982, 22,984 (Apr. 28, 1999).

As a result, in the 1990s and 2000s, many businesses stopped using ozone-depleting substances in

their products. Many businesses replaced those

ozone-depleting substances with HFCs. HFCs became prevalent in many products. HFCs have served

as propellants in aerosol spray cans, as refrigerants

in air conditioners and refrigerators, and as blowing

agents that create bubbles in foams.

Over time, EPA learned more about the effects of

greenhouse gases such as HFCs. In 2009, EPA concluded that greenhouse gases may contribute to climate change, increasing the incidence of mortality

and the likelihood of extreme weather events such as

floods and hurricanes. See Endangerment and Cause

or Contribute Findings for Greenhouse Gases Under

Section 202(a) of the Clean Air Act, 74 Fed. Reg.

66,496, 66,497-98 (Dec. 15, 2009).

In 2013, President Obama announced that EPA

would seek to reduce emissions of HFCs because

HFCs contribute to climate change. EXECUTIVE OFFICE OF THE PRESIDENT, THE PRESIDENT’S CLIMATE

ACTION PLAN 10 (2013). The President’s Climate Action Plan indicated that “the Environmental Protection Agency will use its authority through the Significant New Alternatives Policy Program” of Section

612 to reduce HFC emissions. Id.

Consistent with the Climate Action Plan, EPA

promulgated a Final Rule in 2015 that moved certain

HFCs from the list of safe substitutes to the list of

prohibited substitutes. Protection of Stratospheric

Ozone: Change of Listing Status for Certain Substitutes Under the Significant New Alternatives Policy

Program, 80 Fed. Reg. 42,870 (July 20, 2015) [hereinafter Final Rule]. In doing so, EPA prohibited the

use of certain HFCs in aerosols, motor vehicle air

conditioners, commercial refrigerators, and foams—

even if manufacturers of those products had long

since replaced ozone-depleting substances with

HFCs. Id. at 42,872-73.

Therefore, under the 2015 Rule, manufacturers

that used those HFCs in their products are no longer

allowed to do so. Those manufacturers must replace

the HFCs with other substances that are on the revised list of safe substitutes.

In the 2015 Rule, EPA relied on Section 612 of

the Clean Air Act as its source of statutory authority.

EPA said that Section 612 allows EPA to “change the

listing status of a particular substitute” based on

“new information.” Id. at 42,876. EPA indicated that

it had new information about HFCs: Emerging research demonstrated that HFCs were greenhouse

gases that contribute to climate change. See id. at

42,879. EPA therefore concluded that it had statutory authority to move HFCs from the list of safe substitutes to the list of prohibited substitutes. Because

HFCs are now prohibited substitutes, EPA claimed

that it could also require the replacement of HFCs

under Section 612(c) of the Clean Air Act even

though HFCs are not ozone-depleting substances.

Mexichem Fluor and Arkema are businesses that

make HFC-134a for use in a variety of products. The

2015 Rule prohibits the use of HFC-134a in certain

products. The companies have petitioned for review

of the 2015 Rule. They raise two main arguments.

First, they argue that the 2015 Rule exceeds EPA’s

statutory authority under Section 612 of the Clean

Air Act. In particular, they contend that EPA does

not have statutory authority to require manufacturers to replace HFCs, which are non-ozone-depleting

substances, with alternative substances. Second,

they allege that EPA’s decision in the 2015 Rule to

remove HFCs from the list of safe substitutes was

arbitrary and capricious because EPA failed to adequately explain its decision and failed to consider

several important aspects of the problem. We address those arguments in turn.

We first consider whether Section 612 of the

Clean Air Act authorizes the 2015 Rule.

In 1987, the United States signed the Montreal

Protocol. The Montreal Protocol is an international

agreement that has been ratified by every nation

that is a member of the United Nations. The Protocol

requires nations to regulate the production and use

10a

of certain ozone-depleting substances. See Montreal

Protocol on Substances that Deplete the Ozone Layer, opened for signature Sept. 16, 1987, S. Treaty

Doc. No. 100-10, 1522 U.N.T.S. 29.

In 1990, in part to implement U.S. obligations

under the Protocol and to regulate the production

and use of ozone-depleting substances, Congress

added a new Title to the Clean Air Act: Title VI.

Among Title VI’s provisions is Section 612.

Section 612(a) of the Act provides: “To the maximum extent practicable,” ozone-depleting substances

that are covered under Title VI “shall be replaced by

chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment.” 42 U.S.C.

§ 7671k(a). Title VI sets phase-out dates for those

ozone-depleting substances. Id. §§ 7671c, 7671d.

To implement Section 612(a), EPA maintains

lists of both safe substitutes and prohibited substitutes for ozone-depleting substances. The provision

governing those lists, Section 612(c), provides: It

“shall be unlawful to replace any” ozone-depleting

substance that is covered under Title VI “with any

substitute substance” that is on EPA’s list of “prohibited” substitutes. Id. § 7671k(c). A manufacturer that

violates Section 612(c) can be subject to substantial

civil and criminal penalties. See id. § 7413(b), (c).1

In the years since 1990, many manufacturers of

the products relevant here—aerosols, motor vehicle

Although we focus primarily on product manufacturers in

this case, our interpretation of Section 612(c) applies to any

regulated parties that must replace ozone-depleting substances

within the timelines specified by Title VI. See, e.g., 42 U.S.C.

§§ 7671c, 7671d.

11a

air conditioners, commercial refrigerators, and

foams—have stopped using ozone-depleting substances in those products. Manufacturers have often

replaced those ozone-depleting substances with

HFCs that have long been on the list of safe substitutes.

In the 2015 Rule, acting under the authority of

Section 612(c), EPA moved some HFCs from the list

of safe substitutes to the list of prohibited substitutes. As a result, manufacturers replacing ozonedepleting substances can no longer use those HFCs

as a safe substitute. Even more importantly for present purposes, under the Rule, manufacturers that

have already replaced ozone-depleting substances

with HFCs can no longer use those HFCs in their

products.

In this case, all parties agree that EPA possesses

statutory authority to require manufacturers to replace ozone-depleting substances within the timelines specified by Title VI—generally by 2000 for

some ozone-depleting substances, and by 2015 for

other ozone-depleting substances. See, e.g., 42 U.S.C.

§§ 7671c, 7671d. If a substance on the safe substitutes list is later found to be an ozone-depleting substance, EPA possesses direct statutory authority to

order the replacement of that ozone-depleting substance in accordance with those statutory timelines.

All parties in this case also agree that EPA may

change the lists of safe and prohibited substitutes

based on EPA’s assessment of the risks that those

substitutes pose for “human health and the environment.” Id. § 7671k(c); see id. § 7671k(d). It follows

that Section 612(c) allows EPA to move a substitute

from the list of safe substitutes to the list of prohibit-

12a

ed substitutes. Therefore, assuming that all other

statutory criteria are satisfied, EPA may move HFCs

from the list of safe substitutes to the list of prohibited substitutes, as it did in the 2015 Rule.

In addition, all parties agree that, under Section

612(c), EPA may prohibit a manufacturer from replacing an ozone-depleting substance that is covered

under Title VI with a prohibited substitute. It follows

that EPA may bar any manufacturers that still make

products that contain ozone-depleting substances

from replacing those ozone-depleting substances with

HFCs. Of course, that aspect of the 2015 Rule is not

a big deal as of now because there are few (if any)

manufacturers that still make products that use

ozone-depleting substances.2

The key dispute in this case is whether EPA has

authority under Section 612(c) to prohibit manufacturers from making products that contain HFCs if

those manufacturers already replaced ozone-depleting

substances with HFCs at a time when HFCs were

listed as safe substitutes. In those circumstances,

does EPA have authority to require a manufacturer

to now replace HFCs, which are non-ozone-depleting

substances, with another substitute?

For many years, EPA itself stated that it did not

possess authority under Section 612(c) to require the

replacement of non-ozone-depleting substances. For

example, in 1994, EPA explained that Section 612(c)

“does not authorize EPA to review substitutes for

The parties disagree over whether, as a factual matter, any

manufacturers still make products that use ozone-depleting

substances. EPA says yes. Mexichem and Arkema say no. We

need not resolve that factual dispute here, as it has no bearing

on our legal analysis of the meaning of Section 612(c).

13a

substances that are not themselves” ozone-depleting

substances. EPA Response to Comments on 1994

Significant New Alternatives Policy Rule, J.A. 50.

Two years later, EPA reiterated that interpretation:

EPA explained that it “does not regulate the legitimate substitution” of one substance for another “first

generation non-ozone-depleting” substance. EPA Response to OZ Technology’s Section 612(d) Petition,

J.A. 145.

EPA now argues that it actually possesses such

authority under the statute. For the first time, EPA

has sought to order the replacement of a non-ozonedepleting substitute that had previously been

deemed acceptable by the agency.3

EPA’s new interpretation of Section 612(c) depends on the word “replace.” As noted above, Section

612(c) makes it unlawful to “replace” an ozonedepleting substance that is covered under Title VI

with a substitute substance that is on the list of prohibited substitutes. 42 U.S.C. § 7671k(c). EPA recognizes that manufacturers “replace” an ozonedepleting substance when the manufacturers initially replace that ozone-depleting substance with a safe

substitute. But EPA argues that the initial substitution is not the only time when manufacturers “replace” an ozone-depleting substance. EPA claims

During oral argument, EPA conceded that it had never previously moved a non-ozone-depleting substance from the list of

safe substitutes to the list of prohibited substitutes. Counsel for

EPA stated: “I believe it is correct that the prior de-listings

have involved ozone depleting substitutes, and I may not be

correct for that, but we can assume for this morning that that is

correct.” Tr. of Oral Arg. at 14. Since the time of oral argument,

EPA has not made any filings to this Court to retract that concession.

14a

that a manufacturer continues to “replace” the ozonedepleting substance every time the manufacturer uses the substitute substance, indefinitely into the future. According to EPA, replacement is not a onetime occurrence but a never-ending process. In EPA’s

view, because manufacturers continue to “replace”

ozone-depleting substances with HFCs every time

they use HFCs in their products, EPA continues to

have authority to require manufacturers to stop using HFCs and to use a different substitute.

EPA’s current reading stretches the word “replace” beyond its ordinary meaning. As relevant

here, the word “replace” means to “take the place of.”

THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2017 online); WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 1925 (1993);

THE OXFORD ENGLISH DICTIONARY 642 (2d ed. 1989).

In common parlance, the word “replace” refers to a

new thing taking the place of the old. For example,

President Obama replaced President Bush at a specific moment in time: January 20, 2009, at 12 p.m.

President Obama did not “replace” President Bush

every time President Obama thereafter walked into

the Oval Office. By the same token, manufacturers

“replace” an ozone-depleting substance when they

transition to making the same product with a substitute substance. After that transition has occurred,

the replacement has been effectuated, and the manufacturer no longer makes a product that uses an

ozone-depleting substance. At that point, there is no

ozone-depleting substance to “replace,” as EPA itself

long recognized.4

The dissenting opinion says that the word “replace” may

mean “to provide a substitute for,” rather than “to take the

15a

Under EPA’s current interpretation of the word

“replace,” manufacturers would continue to “replace”

an ozone-depleting substance with a substitute even

100 years or more from now. EPA would thereby

have indefinite authority to regulate a manufacturer’s use of that substitute. That boundless interpretation of EPA’s authority under Section 612(c) borders on the absurd.

Because the text is sufficiently clear, we need not

consider the legislative history. See NLRB v. SW

General, Inc., 137 S. Ct. 929, 942, slip op. at 14

(2017). In any event, the legislative history strongly

supports our conclusion that Section 612(c) does not

grant EPA continuing authority to require replacement of non-ozone-depleting substitutes. The Senate’s version of Title VI applied to “Stratospheric

Ozone and Global Climate Protection.” S. 1630, 101st

Cong. tit. VII (as passed by Senate, Apr. 3, 1990)

(emphasis added). The Senate’s version of the safe

alternatives policy would have required the replacement not just of ozone-depleting substances, but also

of substances that contribute to climate change. Id.

sec. 702, §§ 503(8), 514(a). In other words, the Senate

bill would have granted EPA authority to require the

place of.” Dissenting Op. at 4, 6. But the dissenting opinion’s

alternative interpretation of the word “replace” suffers from the

same flaw as EPA’s interpretation. A manufacturer “provides a

substitute for” an ozone-depleting substance in a product when

the manufacturer transitions to making that product with a

substitute substance. After that transition takes place, the

manufacturer can no longer “provide a substitute for” an ozonedepleting substance. At that point, there is no ozone-depleting

substance to “provide a substitute for.” Therefore, even under

the dissenting opinion’s interpretation, a manufacturer cannot

“replace” an ozone-depleting substance after the manufacturer

stops using that substance.

16a

replacement of non-ozone-depleting substances such

as HFCs. But the Conference Committee did not accept the Senate’s version of Title VI. See H.R. Rep.

No. 101-952, at 262 (1990) (Conf. Rep.). Instead, the

Conference Committee adopted the House’s narrower

focus on ozone-depleting substances. Id.; see S. 1630,

101st Cong. sec. 711, § 156(b) (as passed by House,

May 23, 1990). In short, although Congress contemplated giving EPA broad authority under Title VI to

regulate the replacement of substances that contribute to climate change, Congress ultimately declined.

Put simply, EPA’s strained reading of the term

“replace” contravenes the statute and thus fails at

Chevron step 1. And even if we reach Chevron step 2,

EPA’s interpretation is unreasonable. See Chevron

U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 843 & n.9 (1984); see also Global

Tel*Link v. FCC, 859 F.3d 39, 59-60 (D.C. Cir. 2017)

(Silberman, J., concurring).

Notwithstanding our conclusion regarding Section 612, EPA still possesses several statutory authorities to regulate HFCs.

For one thing, EPA has statutory authority under Section 612(c) to prohibit any manufacturers

that still use ozone-depleting substances that are

covered under Title VI from deciding in the future to

replace those substances with HFCs. Those manufacturers have yet to “replace” ozone-depleting substances with a substitute. When they ultimately do

replace ozone-depleting substances, EPA may prohibit them from using HFCs as substitutes.5

To be sure, Mexichem and Arkema argue that EPA acted

arbitrarily and capriciously in removing HFCs from the list of

safe substitutes. As explained in Part III below, however, we

17a

For another thing, EPA possesses other statutory

authorities, including the Toxic Substances Control

Act, to directly regulate non-ozone-depleting substances that are causing harm to the environment.

See 15 U.S.C. §§ 2601-2629 (Toxic Substances Control Act); see also 42 U.S.C. § 7408 (National Ambient

Air Quality Standards program); id. § 7412 (Hazardous Air Pollutants program); id. §§ 7470-7492 (Prevention of Significant Deterioration program); id. §

7521 (Section 202 of Clean Air Act). Our decision today does not in any way cabin those expansive EPA

authorities.

In addition, EPA still has statutory authority to

require product manufacturers to replace substitutes

that (unlike HFCs) are themselves ozone depleting.

See, e.g., 42 U.S.C. §§ 7671c, 7671d. Suppose, for example, that EPA determines that a substance is a

safe substitute for ozone-depleting substances, but

EPA later concludes that the substitute is itself an

ozone-depleting substance that is covered under Title

VI. In that circumstance, EPA possesses statutory

authority to order the replacement of that ozonedepleting substance in accordance with the timelines

prescribed by Title VI.

However, EPA’s authority to regulate ozonedepleting substances under Section 612 and other

statutes does not give EPA authority to order the replacement of substances that are not ozone depleting

but that contribute to climate change. Congress has

not yet enacted general climate change legislation.

Although we understand and respect EPA’s overarching effort to fill that legislative void and regulate

reject that argument. We conclude that EPA acted lawfully in

removing HFCs from the list of safe substitutes.

18a

HFCs, EPA may act only as authorized by Congress.

Here, EPA has tried to jam a square peg (regulating

non-ozone-depleting substances that may contribute

to climate change) into a round hole (the existing

statutory landscape).

The Supreme Court cases that have dealt with

EPA’s efforts to address climate change have taught

us two lessons that are worth repeating here. See,

e.g., Utility Air Regulatory Group v. EPA, 134 S. Ct.

2427 (2014). First, EPA’s well-intentioned policy objectives with respect to climate change do not on

their own authorize the agency to regulate. The

agency must have statutory authority for the regulations it wants to issue. Second, Congress’s failure to

enact general climate change legislation does not authorize EPA to act. Under the Constitution, congressional inaction does not license an agency to take

matters into its own hands, even to solve a pressing

policy issue such as climate change. Justice Breyer

has summarized that separation of powers point in

another context—there, the war against al Qaeda.

See Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006)

(Breyer, J., concurring). Justice Breyer stated in

Hamdan that war is not a blank check for the President. Id.; see also Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). So too, climate change is not a blank check

for the President.

Those bedrock separation of powers principles

undergird our decision in this case. However much

we might sympathize or agree with EPA’s policy objectives, EPA may act only within the boundaries of

its statutory authority. Here, EPA exceeded that authority.

19a

EPA’s reliance on the statutory term “replace”

does not justify the 2015 Rule. But that is not necessarily the end of the matter. EPA suggests that it

may be able to require manufacturers to replace

HFCs under an alternative theory. The question under that alternative theory is this: May EPA retroactively conclude that a manufacturer’s past decision to

“replace” an ozone-depleting substance with HFCs is

no longer lawful, even though the original replacement with HFCs was lawful at the time it was made?

Under such a “retroactive disapproval” approach,

EPA could prohibit manufacturers from making

products that use HFCs even though those HFCs

were deemed safe substitutes at the time the manufacturers decided to initially replace an ozonedepleting substance with HFCs.

EPA’s brief to this Court advanced such an argument only in passing. In its brief, EPA stated: An

“agency’s inherent authority to revise an earlier administrative determination where faced with new

developments or in light of reconsideration of the relevant facts is an essential part of the office of a regulatory agency.” EPA Br. 27 (internal quotation marks

omitted).

The problem for present purposes is that EPA

did not squarely articulate a “retroactive disapproval” rationale in the 2015 Rule. Instead, EPA relied on

its expansive interpretation of the word “replace” in

the Rule. Therefore, we may not uphold the Rule

based on the “retroactive disapproval” theory. See

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); Pasternack v. National Transportation Safety Board, 596

F.3d 836, 838 (D.C. Cir. 2010).

20a

Rather, we must remand to EPA. On remand, if

EPA decides to pursue this “retroactive disapproval”

approach, the agency would have to address at least

three issues.

First, for this “retroactive disapproval” theory to

hold up, EPA would have to reasonably conclude either (i) that Section 612(c) provides EPA with statutory authority to employ a “retroactive disapproval”

approach or (ii) that EPA has inherent authority to

retroactively disapprove a prior replacement, even a

replacement that occurred many years ago. See generally Vartelas v. Holder, 566 U.S. 257, 266 (2012)

(retroactivity principles in statutory interpretation);

Ivy Sports Medicine, LLC v. Burwell, 767 F.3d 81, 86

(D.C. Cir. 2014) (scope of agencies’ inherent reconsideration authority).

Second, if EPA concludes that it has authority

for “retroactive disapprovals,” EPA must explain the

basis for its conclusion and explain its change in interpretation of Section 612(c). See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). As noted above, before the 2015 Rule, EPA indicated that

Section 612(c) “does not authorize EPA to review

substitutes for substances that are not themselves”

covered ozone-depleting substances. EPA Response

to Comments on 1994 Significant New Alternatives

Policy Rule, J.A. 50; see Protection of Stratospheric

Ozone, 59 Fed. Reg. 13,044, 13,052 (Mar. 18, 1994);

EPA Response to OZ Technology’s Section 612(d) Petition, J.A. 145. But under the retroactive disapproval approach, EPA would in effect require manufacturers to replace their HFCs, which are not ozonedepleting substances, with other substitutes. Such a

change in EPA’s approach would require an explanation. Moreover, to the extent that EPA’s prior ap-

21a

proach had “engendered serious reliance interests,”

EPA would need to provide a “more detailed justification” for its change. Fox, 556 U.S. at 515.

Third, even if EPA has authority for a “retroactive disapproval” approach, EPA must comply with

applicable due process constraints on retroactive decisionmaking. The Due Process Clause limits the

Government’s authority to retroactively alter the legal consequences of an entity’s or person’s past conduct. To satisfy the Due Process Clause, EPA must

at a minimum “provide regulated parties fair warning of the conduct a regulation prohibits or requires.”

Christopher v. SmithKline Beecham Corp., 567 U.S.

142, 156 (2012) (internal quotation marks and alteration omitted). In this case, for example, even if EPA

has statutory authority to retroactively disapprove

the replacement of an ozone-depleting substance

with HFCs, EPA plainly may not impose civil or

criminal penalties on a manufacturer based on the

manufacturer’s past use of HFCs at the time when

EPA said it was lawful to use HFCs. See id. We do

not understand EPA to disagree with that proposition.

Unless and until EPA concludes on remand that

it has cleared those three hurdles,6 EPA may not apply the 2015 Rule to require manufacturers to replace one non-ozone-depleting substitute with another substitute, so long as the initial substitute was

listed as safe at the time the substitution was effec6

We take no position now on whether EPA can meet those

requirements. Moreover, we note that those three requirements

would be necessary for EPA to prevail on a “retroactive disapproval” theory. We do not opine here on whether they would be

sufficient.

22a

tuated. Of course, even if EPA concludes that it has

cleared those hurdles, EPA’s conclusions may be subject to review in this Court in another case.

In short, we vacate the 2015 Rule to the extent

the Rule requires manufacturers to replace HFCs

with a substitute substance. We remand to EPA. On

remand, if it chooses, EPA may determine whether it

has “retroactive disapproval” authority—whether, in

other words, it has authority to conclude that a

manufacturer’s past decision to replace an ozonedepleting substance with HFCs is no longer lawful.

III

Our conclusion that the 2015 Rule must be vacated to the extent it requires manufacturers to replace HFCs does not answer the question whether

EPA reasonably removed HFCs from the list of safe

substitutes in the first place. Mexichem and Arkema

assert that EPA’s decision to remove HFCs from the

list of safe substitutes was arbitrary and capricious.

In support, they advance a number of arguments.

The arbitrary and capricious standard requires

that a rule be “reasonable and reasonably explained.”

Communities for a Better Environment v. EPA, 748

F.3d 333, 335 (D.C. Cir. 2014) (internal quotation

marks omitted). EPA must “examine the relevant data and articulate a satisfactory explanation for its

action.” Motor Vehicle Manufacturers Association of

United States, Inc. v. State Farm Mutual Automobile

Insurance Co., 463 U.S. 29, 43 (1983). Applying that

deferential standard, we reject all of Mexichem and

Arkema’s arbitrary and capricious challenges.

First, Mexichem and Arkema assert that EPA

ignored a key “requirement” in the 1994 Rule implementing Section 612(c)—namely, that EPA may “re-

23a

strict only those substitutes that are significantly

worse” than the available alternatives. Reply Br. 21;

Protection of Stratospheric Ozone, 59 Fed. Reg.

13,044, 13,046 (Mar. 18, 1994) (capitalization altered). They claim that EPA did not demonstrate

that HFCs are significantly worse than the available

alternatives. In fact, however, the 1994 Rule said

that restricting significantly worse substitutes was

just one of seven “guiding principles” for EPA—not a

hard-and-fast requirement. Protection of Stratospheric Ozone, 59 Fed. Reg. at 13,046. Moreover,

based on data regarding the environmental effects of

the relevant substances, EPA repeatedly concluded

that the substances EPA added to the list of prohibited substitutes posed a “significantly greater risk”

than the available alternatives. See, e.g., Final Rule,

80 Fed. Reg. at 42,904, 42,905, 42,912, 42,915,

42,917, 42,919. So that challenge fails.7

Second, Mexichem and Arkema argue that EPA

should not have relied so heavily on the numeric

Global Warming Potential score to assess the “Atmospheric effects and related health and environmental impacts” of HFCs and other substitutes. 40

C.F.R. § 82.180(a)(7)(i). But as EPA has explained,

that is the tool preferred by leading scientists for analyzing the effects of greenhouse gases. EPA Response to Comments on Proposed Rule at 162, J.A.

Mexichem and Arkema also assert that EPA’s decision to

change the listing status of HFCs violated EPA’s regulations

because EPA did not compare HFCs to the proper comparator

substances. See 40 C.F.R. §§ 82.170(a), 82.172. That is not accurate. In the 2015 Rule, EPA compared HFCs with other substances that are on EPA’s list of safe substitutes, as EPA is

permitted to do under its regulations. See id. § 82.170(a); Final

Rule, 80 Fed. Reg. at 42,937.

24a

727. EPA reasonably relied on the Global Warming

Potential score.

Third, Mexichem and Arkema suggest that EPA

failed to provide objective benchmarks for determining which substances’ Global Warming Potential

scores were too high to be acceptable. But EPA was

not assessing the score of each individual substance

in isolation. Instead, EPA was comparing substances

with one another. EPA reasonably concluded that

substances with higher scores posed a greater global

warming risk than substances with lower scores. See,

e.g., Final Rule, 80 Fed. Reg. at 42,882. That is a

“comprehensible” and objective method for assessing

environmental risks. Postal Service v. Postal Regulatory Commission, 785 F.3d 740, 753 (D.C. Cir. 2015).

Fourth, according to Mexichem and Arkema,

EPA failed to consider data regarding the overall

amount of each substitute that would be emitted into

the atmosphere. Not so. EPA considered whether

there were “substantial differences” between HFCs

and other substitutes that “might affect total atmospheric emissions.” Final Rule, 80 Fed. Reg. at 42,938.

EPA also looked at other factors related to atmospheric emissions, “such as charge size of refrigeration equipment and total estimates of production,” as

part of “its assessment of environmental and health

risks of new alternatives.” Id. Because EPA accounted for factors that affect the quantity of emissions,

EPA did not entirely fail to “consider an important

aspect of the problem.” State Farm, 463 U.S. at 43.

Fifth, Mexichem and Arkema assert that EPA

should have accounted for energy efficiency when assessing the atmospheric effects of HFCs. But as EPA

explained, the energy efficiency of a substance often

25a

is not informative in isolation. Final Rule, 80 Fed.

Reg. at 42,921-22. The efficiency of the substance depends on the efficiency of the equipment in which the

substance is used. In part because EPA cannot control the efficiency of equipment under Section 612(c),

EPA decided not to evaluate the energy efficiency of

substitutes in its analysis. Id. Under those circumstances, EPA’s approach was reasonable and reasonably explained.

Sixth, Mexichem and Arkema argue that EPA

should have placed conditions on how HFCs could be

used, rather than entirely prohibiting certain uses of

HFCs. But EPA adequately explained that use controls are typically appropriate when a particular use

of a substance carries an especially high risk that

can be mitigated by placing conditions on that use.

Id. at 42,899. Use controls would not be appropriate

for HFCs, EPA stated, because the hazards of HFCs

are not unique to particular uses. Instead, “the environmental risks” from HFCs “are due to the collective global impact of refrigerant emissions released

over time.” Id. EPA also explained that use controls

for HFCs did not make sense because other substitutes are readily available. Id. That conclusion is

reasonable and reasonably explained for purposes of

arbitrary and capricious review under the Administrative Procedure Act.

Seventh, Mexichem and Arkema claim that EPA

failed to consider transition costs—that is, the costs

of transitioning from prohibited HFCs to approved

substitutes. But EPA did take transition costs into

account when it decided to give certain product manufacturers extra time to comply with the Rule. See,

e.g., id. at 42,933. EPA acted reasonably for purposes

of arbitrary and capricious review.

26a

***

In sum, we grant the petitions and vacate the

2015 Rule to the extent it requires manufacturers to

replace HFCs with a substitute substance. We remand to EPA for further proceedings consistent with

this opinion. We reject all of Mexichem and Arkema’s

other challenges to the 2015 Rule. The petitions are

therefore granted in part and denied in part.

So ordered.

WILKINS, Circuit Judge, concurring in part and

dissenting in part:

I must depart from the Court’s opinion concluding that Section 612 of the Clean Air Act unambiguously prohibits EPA from requiring the replacement

of HFCs. The majority claims that “EPA’s novel reading of Section 612 is inconsistent with the statute as

written,” because Section 612 does not provide EPA

with the authority to require “manufacturers to replace non-ozone-depleting substances such as HFCs.”

Maj. Op. 3. Accordingly, the majority disposes of the

issue in a Chevron step-one analysis through an interpretation of the word “replace.” See id. at 9-15. I

disagree. The bar for deciding a case at Chevron step

one is high, requiring clear and unambiguous congressional intent. See Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). Because the term “replace” is susceptible of multiple

interpretations in this context, it cannot serve as the

basis for discerning clear congressional intent. See,

e.g., U.S. Postal Serv. v. Postal Regulatory Comm’n,

640 F.3d 1263, 1267 n.4 (D.C. Cir. 2011) (“Our second inquiry will require us to proceed to Chevron

step 2 because the phrase ‘due to’ has an additional—and ambiguous—meaning, which the Commission did not address.”). Thus, the Court must proceed

to Chevron step two and decide whether EPA’s interpretation of the statutory scheme is reasonable. Because I find that it is, I would deny the petition on all

grounds.

We review EPA’s interpretation of the Clean Air

Act under the two-step framework established in

Chevron. See Catawba Cnty., N.C. v. EPA, 571 F.3d

27a

28a

20, 35 (D.C. Cir. 2009). Pursuant to step one of the

Chevron analysis, “both the agency and the courts

[must] give effect to Congress’s unambiguously expressed intent if the underlying statute speaks directly to the precise question at issue.” Citizens of

Coal Council v. Norton, 330 F.3d 478, 481 (D.C. Cir.

2003). In other words, “if the intent of Congress is

clear and unambiguously expressed by the statutory

language at issue, that would be the end of our analysis.” Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ.,

550 U.S. 81, 93 (2007). When making this determination, we may rely on the traditional tools of statutory

interpretation, including the statute’s text, structure,

purpose, and legislative history. Citizens of Coal

Council, 330 F.3d at 481.

I respectfully disagree with the majority that the

relevant language in Section 612 meets the Chevron

step one standard. This is simply not a case where

Congress has clearly and directly spoken to the issue

in a manner that “unambiguously foreclosed the

agency’s statutory interpretation.” Catawba Cnty.,

571 F.3d at 35.

The majority focuses primarily upon two provisions of Section 612 as clearly and unambiguously

demonstrating that the 2015 Rule was not authorized by Congress. Here are the two provisions:

To the maximum extent practicable, class I

and class II substances shall be replaced by

chemicals, product substitutes, or alternative

manufacturing processes that reduce overall

risks to human health and the environment.

42 U.S.C. § 7671k(a) (emphasis added).

Within 2 years after November 15, 1990, the

Administrator shall promulgate rules under

29a

this section providing that it shall be unlawful to replace any class I or class II substance

with any substitute substance which the Administrator determines may present adverse

effects to human health or the environment,

where the Administrator has identified an alternative to such replacement that—

(1) reduces the overall risk to human

health and the environment; and

(2) is currently or potentially available.

The Administrator shall publish a list of

(A) the substitutes prohibited under this subsection for specific uses and (B) the safe alternatives identified under this subsection for

specific uses.

Id. § 7671k(c) (emphasis added).

The majority contends that the word “replace,”

when used in these two provisions, can have only one

meaning: to “take the place of.” Maj. Op. 13-14; see

id. at 14 (“In common parlance, the word ‘replace’ refers to a new thing taking the place of the old.”). Under this definition, a substitute can only “replace” an

ozone-depleting substance once. After the manufacturer has transitioned from an ozone-depleting substance to a non-ozone-depleting substitute, there is

nothing left to “replace.” Id. While the majority’s definition may be one way to interpret the statute, for

several different reasons, it is by no means the only

way to construe the text.

First, with respect to the plain text of the statute, the meaning of the word “replace” is ambiguous.

Nowhere in Section 612 is the term “replace” statutorily defined. See 42 U.S.C. § 7671 (definitions). The

majority does not disagree, and instead relies on dic-

30a

tionary definitions to conclude that “replace” means

to “take the place of.” Maj. Op. 13-14. However, each

of the dictionaries cited by the majority also defines

“replace” to mean to “substitute for.” See THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2017 online) (“To fill the place of; provide a substitute for”); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1925 (1993) (“[T]o take the

place of: serve as a substitute for or successor of”);

THE OXFORD ENGLISH DICTIONARY 642 (2d ed. 1989)

(“To take the place of, become a substitute for (a person or thing).”).

The difference in meaning between “to take the

place of” and “to provide a substitute for” may be

subtle, but it is rather significant in the context of

this statute. Section 612 pertains to replacing a category, or class, of chemical substances; indeed the

substances are defined in the statute as “class I” and

“class II” substances. 42 U.S.C. § 7671(3), (4). Thus,

this statute is not directed to a specific individual or

position, and the majority’s example noting that

“President Obama replaced President Bush at a specific moment in time,” Maj. Op. 14, is therefore inapposite. A more pertinent example would be: “Hybrid

electric engines, fully electric engines, hydrogen fuel

cell power, and other alternatives are replacing the

internal combustion engines in passenger cars.” The

Oxford Dictionary provides a similar example sentence: “This is required to replace older medicines

that will eventually face competition from generic

substitutes.” Replace, OXFORD DICTIONARY, https://

en.oxforddictionaries.com/definition/replace (last accessed July 14, 2017). In both examples, the ubiquitous product that has become the industry standard

is “replaced” by a number of substitutes, and the re-

31a

placement takes place not at a specific point in time,

not just once, and not by a single substitute. Instead,

the ubiquitous item is “replaced” by any number of

substitutes over the course of years, and it may be

the case that one substitute is succeeded by a better

substitute at some point in time. As one dictionary

puts it, “Replace applies both to substituting something new or workable for that which is lost, depleted

or won out and to placing another in the stead of one

who leaves or is dismissed from a position.” AMERICAN HERITAGE DICTIONARY (2d Coll. ed. 1982).

Second, the structure of the statutory text also

contradicts the clear meaning proffered by the majority. The two key provisions of Section 612 are not directed to any particular group of individuals or class

of companies. They provide that “class I and class II

substances shall be replaced by chemicals, product

substitutes, or alternative manufacturing processes,”

42 U.S.C. § 7671k(a), and that “it shall be unlawful

to replace any class I or class II substance with any

substitute substance,” id. § 7671k(c). These Congressional mandates, written in the passive voice and

without identifying a particular target of the regulation, appear to apply to anyone and everyone, including retailers, product manufacturers and chemical

manufacturers.1 The majority focuses on product

In other provisions of Section 612, Congress identified the

target of the regulation as chemical manufacturers, like the

petitioners in this case. See, e.g., 42 U.S.C. § 7671(e) (“The Administrator shall require any person who produces a chemical

substitute for a class I substance to provide the Administrator

with such person’s unpublished health and safety studies on

such substitute and require producers to notify the Administrator not less than 90 days before new or existing chemicals are

introduced into interstate commerce for significant new uses as

substitutes for a class I substance.” (emphasis added)); see also

32a

manufacturers, contending that once the manufacturer replaces the class I or class II substance in its

product with a non-ozone-depleting substitute, “the

replacement has been effectuated.” Maj. Op. 14.

However, this point of view ignores the retailer.

Suppose a retailer needs to refurbish an air conditioner manufactured in the early 1990s that uses a

class I substance as a refrigerant. If the retailer

chooses to have the air conditioner serviced by recharging it with new refrigerant, she is prohibited

from “replacing” the class I substance with a chemical substitute “which the Administrator determines

may present adverse effects to human health or the

environment[,]” 42 U.S.C. § 7671k(a). If the retailer

chooses to purchase a new air conditioner instead,

she is still “replacing” a class I substance, and the

new air conditioner cannot contain an unsafe substitute. Id. Either way, the retailer’s action falls within

the scope of the mandates in Section 612. And if the

retailer purchases a new air conditioner, the fact

that the manufacturer may have previously “replaced” a class I substance with an HFC as the refrigerant in its air conditioners does not mean that

“the replacement has [already] been effectuated”

with respect to that retailer. See Maj. Op. 14. By the

express terms of the statute, if the EPA determines

as of 2017 that HFCs are no longer safe substitutes

for class I substances given available refrigerant alternatives, it would appear that Congress has given

EPA the authority to prohibit the further use of

HFCs in air conditioners so that the retailer in our

example cannot “replace” her class I substanceid. § 7671(11) (defining “produce” as “the manufacture of a substance from any raw material or feedstock chemical ....”).

33a

utilizing air conditioner with a new air conditioner

utilizing an unsafe substitute. The majority holds

otherwise. Alternatively, the express terms of the

statute appear to give EPA the authority to prohibit

the retailer from recharging her old air conditioner

with an HFC as the refrigerant, which the agency

could implement by restricting the manufacture,

marketing, and use of HFCs. Given its focus on

product manufacturers, the majority opinion is curiously silent about how its statutory interpretation

affects retailers and other end users who have products utilizing class I and class II substances, despite

the obvious importance of the issue.

In my view, the connotation of “replace” as “to

provide a substitute for” more accurately reflects the

intent of Congress given the use of the term and sentence structure in the key statutory provisions. This

interpretation is further supported by the fact that

Congress used the word “substitute” ten separate

times in Section 612, and the word “alternative” a

dozen times more, including in the title of the section. See 42 U.S.C. § 7671k (“Safe Alternatives Policy”). In that context, “replacing” the class I or class II

substance is not necessarily a one-time event and alternatives or substitutes can be deemed replacements or successors, even if they are not the firstgeneration successor. At a minimum, the definition

of “replace” is ambiguous, and “to provide a substitute for” just as likely manifests Congress’s intent as

the definition proffered by the majority. “Confronted

by two plausible readings of the statute, we cannot

declare Congress’ intent unambiguous.” Adirondack

Med. Ctr. v. Sebelius, 740 F.3d 692, 698 (D.C. Cir.

2014).

34a

Third, the majority’s interpretation also undermines the purpose of Section 612, which is, “[t]o the

maximum extent practicable,” to carry out the replacement of class I and class II substances with

“chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment.” 42 U.S.C. §

7671k(a). Significantly, Congress authorized EPA to

develop a list of unsafe alternatives and a list of safe

alternatives, but Congress chose, for whatever reason, only to bar the use of alternatives on the “unsafe

list,” rather than mandating the use of only those alternatives appearing on the “safe list.” See id. §

7671k(c) (“it shall be unlawful to replace any class I

or class II substance with any substitute substance

which the Administrator determines may present

adverse effects to human health or the environment”). By writing the statute in this manner, Congress allowed manufacturers to replace class I and II

substances with alternatives that have not been specifically approved by the EPA, so long as the substitute has not been specifically deemed unsafe by the

EPA. The majority’s interpretation of “replace”

makes a mockery of the statutory purpose, because a

product manufacturer could “replace” a class I substance with a substitute before the EPA has a chance

to evaluate it completely, and if the agency later determines that a different substitute “reduce[s] overall risks to human health and the environment,” id. §

7671k(a), the agency would be powerless to tell that

product manufacturer that it could no longer use the

more risky substitute. In the majority’s view, the

“replacement” is a fait accompli, and EPA is powerless to act under Section 612. Such an interpretation

undermines Congress’s intent to “reduce overall risks

35a

to human health and the environment” in a manner

“to the maximum extent practicable.” Id.

In doing so, the majority takes an even more extreme position than petitioners, who conceded that

“if ozone-depleting substances are in use, EPA can

list and de-list” to and from the lists of acceptable

and unacceptable alternatives. Oral Arg. at 11:07,

Mexichem Fluor, Inc. v. EPA (Feb. 17, 2017) (No. 151328). According to petitioners, EPA “can list or delist ozone-depleting substances and non-ozonedepleting substances because the list at that point is

consisting of things that will replace the things that

are in use, which are ozone-depleting substances ....”

Id. at 11:14 (emphasis added). The petitioners are at

least trying to interpret “replace” in a manner consistent with the statutory purpose—but as explained

infra in part II, they are simply wrong on the facts,

because ozone-depleting substances are still in use.

The majority’s definition of “replace,” on the other

hand, has no semblance of consistency with this aspect of Congress’s purpose.

Indeed, Section 612 is aimed at regulating which

substitutes can be used as replacements for class I

and class II substances, rather than regulating those

ozone-depleting substances themselves. Congress

phased out the production and manufacture of ozonedepleting substances in other statutory provisions.

See 42 U.S.C. §§ 7671c, 7671d. Section 612, on the

other hand, is focused solely on substituting class I

and class II substances with safe alternatives. See id.

§ 7671k. Because Section 612 promotes the use of

safe substitutes, it necessarily requires a reading of

the word “replace” that comports with this congressional intent. The majority’s cramped reading of the

statute contradicts Congress’s intent that the EPA

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prohibit the use of “any substitute substance” that

may “present adverse effects to human health and

the environment” where a less risky substitute is

available. Id. § 7671k(c) (emphasis added).

Moreover, the majority’s interpretation also runs

counter to the purpose of the petition process contained in Section 612. Congress provided that “[a]ny

person may petition the Administrator to add a substance to the [safe or unsafe alternatives] lists ... or

to remove a substance from either of such lists.” Id. §

7671k(d). The petition process becomes a halfmeasure if EPA is only allowed to “replace” an ozonedepleting substance once and only once. The majority’s interpretation grants EPA one bite at the apple,

prohibiting additions to the unsafe substitutes list or

removals from the safe substitutes list if the product

manufacturer has already begun using a non-ozonedepleting substitute for the class I or class II substance. By creating this petition process, it is evident

that Congress desired the safe alternatives list to be

a fluid and evolving concept that promotes those alternatives that pose the least overall risk to human

health and the environment. Congress undoubtedly

knew how to instruct EPA to develop a list of acceptable and unacceptable substitutes by a certain

date and then stop there. The fact that Congress did

not do so is telling. See City of Arlington, Tex. v.

FCC, 133 S. Ct. 1863, 1868 (2013) (“Congress knows

to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.”). Congress chose a starkly

different path, and the majority has taken the power

that Congress granted individuals to request the addition of more risky substitutes to the unsafe list and

rendered it largely impotent. When interpreting two

37a

interrelated statutory provisions, “[a]bsent clearly

expressed congressional intent to the contrary, it is

our duty to harmonize the provisions and render

each effective.” Adirondack Med. Ctr., 740 F.3d at

698-99.

Fourth, the majority’s references to EPA’s prior

interpretations of its statutory authority cannot

change the Chevron step one analysis. See Maj. Op.

12. I agree with the majority that we must reject any

EPA interpretation of “replace” if we determine that

Congress has clearly and directly spoken to the contrary, because “[t]he judiciary is the final authority

on issues of statutory construction and must reject

administrative constructions which are contrary to

clear congressional intent.” Chevron, 467 U.S. at 843

n.9. But the EPA’s interpretations of the statute are

not themselves suitable evidence of Congress’s clear

intent. See Village of Barrington, Ill. v. Surface

Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011); see

also Kentuckians for Commonwealth Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003) (“Agency

interpretations of statutory provisions only come into

play if Congress has not spoken clearly. Relying on

agency interpretations as evidence of a clear congressional intent is therefore misguided.” (emphasis in

original)).

Finally, an examination of Section 612’s legislative history does not change the outcome. Where “a

statute is silent or ambiguous with respect to the

question at issue,” we must “defer to the ‘executive

department’s construction of a statutory scheme it is

entrusted to administer,’ unless the legislative history of the enactment shows with sufficient clarity that

the agency construction is contrary to the will of Congress.” Japan Whaling Ass’n v. Am. Cetacean Soc.,

38a

478 U.S. 221, 233 (1986) (quoting Chevron, 467 U.S.

at 844 (emphasis added, citation omitted)). In other

words, “conflicting [legislative history] cannot clarify

ambiguous statutory language,” Am. Bankers Ass’n

v. Nat’l Credit Union Admin., 271 F.3d 262, 269

(D.C. Cir. 2001), and “[w]hile [legislative] history can

be used to clarify congressional intent even when a

statute is superficially unambiguous, the bar is

high,” Williams Companies v. FERC, 345 F.3d 910,

914 (D.C. Cir. 2003).

Here, the legislative history cited by the majority

cannot meet the required high bar to show clear

Congressional intent, particularly since the legislative activity “was not ... addressed to the precise issue raised by th[is] case[].” Chevron, 467 U.S. at

853,. The precise question presented here is whether

“Section 612 unambiguously covers only replacements of ozone-depleting substances and does not

authorize ‘replacements of replacements’.” Pet’rs’ Br.

29. The Senate bill cited by the majority had no provisions whatsoever regarding how replacements of

covered substances were to be carried out. Instead,

the Senate bill would have phased out production entirely of not only ozone-depleting substances, but also

certain substances which were known or reasonably

suspected to contribute to “atmospheric or climatic

modification.” S. 1630, 101st Cong. §§ 504, 506 (as

passed by Senate, Apr. 3, 1990). But the Senate bill

had no provisions for creating a list of acceptable

substitutes or for prohibiting unacceptable substitutes; nor did it have any provisions for adding substitutes to, or removing substitutes from, the “acceptable” and “unacceptable” lists. Instead, the Senate bill directed EPA to support programs to identify

and promote the development of safe alternatives

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and to maintain a public clearinghouse of “available”

alternatives. Id. § 514. All of the statutory provisions

in Section 612 concerning acceptable and banned alternatives originated in the House bill. S. 1630, 101st

Cong. § 156 (1990) (as passed by House, May 23,

1990). At best, this legislative history shows that

Congress rejected a proposal to ban and phase out

the production of substances that contribute to climate change. However, the history is silent on the

much different question of whether Congress intended to allow EPA to make “replacements of replacements” of the substitutes for banned ozone-depleting

substances. Because “the legislative history as a

whole is silent on the precise issue before us,” Chevron, 467 U.S. at 862, it cannot demonstrate clear

congressional intent on that question.

***

Given my interpretation of Section 612’s plain

language, purpose, and legislative history, I cannot

agree with my colleagues that the word “replace”

clearly and unambiguously means to “take the place

of,” and only permits a one-time replacement of

ozone-depleting substances. Rather, at a minimum,

sufficient ambiguity exists to proceed to Chevron

step two. See, e.g., NRDC v. EPA, 22 F.3d 1125, 1138

(D.C. Cir. 1994) (“Because the phrase ‘take effect’ is

itself ambiguous, its meaning must be discerned according to Chevron ‘s second step.”).

II.

The second step in the Chevron framework requires courts to grant deference to an administrative

agency’s construction of an ambiguous statute if that

interpretation is reasonable. Chevron, 467 U.S. at

843. “[A] court may not substitute its own construc-

40a

tion of a statutory provision for a reasonable interpretation made by the administrator of an agency.”

Id. Where the interpretation would be one Congress

could have sanctioned, the administrative agency is

entitled to deference and its construction should be

afforded “considerable weight.” Id.

For the reasons discussed in Part I, I find EPA’s

interpretation of Section 612 to be reasonable. EPA’s

interpretation comports with a common definition of

the word “replace,” which is to “[p]rovide a substitute

for.” See, e.g., Replace, OXFORD DICTIONARY, supra.

This meaning of “replace” is consistent with Section

612’s statutory purpose, which is, “to the maximum

extent practicable,” to replace ozone-depleting substances with “chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment.” 42

U.S.C. § 7671k(a)(emphasis added). Comparing alternatives to each other and selecting the alternative

that creates the lowest level of overall risk to human

health and the environment accords nicely with the

policy choice explicitly stated by Congress. EPA’s interpretation further avoids the majority’s manufacturer-by-manufacturer structure, which does not fully comport with the statutory framework.

Finally, I do not read the administrative record

in the same manner as the majority. EPA never stated that regulation of non-ozone-depleting substitutes

was completely off limits, nor clearly acted in a manner to foreclose its present interpretation.

The past language of EPA that is relied upon by

the majority is far from conclusive on the meaning of

“replace” in this context. It is true that EPA stated in

the course of the 1994 rulemaking that “Section

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612(c) authorizes EPA to review all substitutes to

Class I and II substances, but does not authorize

EPA to review substitutes for substances that are

not themselves class I or II substances.” J.A. 50. But

this excerpt alone does not tell the whole story. At

the time, several commenters requested that “EPA

clarify that SNAP should only apply to substitutes

for Class I or Class II compounds,” while another

commenter suggested “that SNAP should aggressively reevaluate previously approved second-generation

alternatives as new and environmentally preferable

alternatives are developed.” Id. EPA began its response to these comments as follows:

A key issue is whether there exists a point at

which an alternative should no longer be considered a class I or II substitute as defined by

Section 612. The Agency believes that as long

as class I or II chemicals are being used, any

substitute designed to replace these chemicals

is subject to review under Section 612.

J.A. 50 (emphasis added). This statement by the

agency is consistent with how it has construed “replace” in the 2015 Rule.

Furthermore, EPA’s seemingly contradictory

statement relied upon by the majority must be

placed in context. In Section 612, Congress specified

that producers of chemical substitutes for class I

substances are required “to provide the Administrator with such person’s unpublished health and safety

studies on such substitute and require producers to

notify the Administrator not less than 90 days before

new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance.” 42 U.S.C. § 7671k(e).

42a

This advance reporting requirement gives the agency

a 90-day period to review the chemical substitute

and related data and make a determination as to

whether it is a safe alternative or unsafe alternative

for a class I or class II substance before the substitute hits the marketplace.2 The EPA and the National Resources Defense Council contend that EPA’s

1994 comment only pertained to the 90-day advance

reporting—and concomitant—review requirements of

the SNAP program. Resp’t’s Br. 6; NRDC Intervenor’s Br. 13. Thus, when the agency stated that “Section 612(c) authorizes EPA to review all substitutes

to Class I and II substances, but does not authorize

EPA to review substitutes for substances that are

not themselves class I or II substances,” J.A. 50, EPA

argues it meant only that 1) it could not require 90day advance reporting of intended use and health data for certain second-generation substitutes by chemical manufacturers, and 2) the agency was not required to conduct an advance review before any such

second-generation substitute hit the market. Thus,

EPA contends that it never said, or meant to say,

that EPA had no power whatsoever to review secondgeneration substitutes, either in response to a petition or on the agency’s own accord. While the back

During the 1994 rulemaking, EPA stated its intent to apply

the 90–day advance reporting requirement to new substitutes

for class II substances, even though the statute only expressly

mentions the advance reporting requirement in the context of

substitutes for class I substances. J.A. 42. This deadline for review following advance notice and reporting is the same as in

the petition process, where Congress required that EPA, within

90 days, to “grant or deny” a petition to add a substitute to, or

remove a substitute from, either the safe alternatives list or the

unsafe alternatives list for class I and class II substances. 42

U.S.C. § 7671k(d).

43a

and forth in the commentary during the 1994 rulemaking is not crystal clear, it appears to support the

interpretation that EPA only intended to disclaim

authority to “review” second-generation substitutes

in the 90-day advance notification and review context, and only if the first-generation substitute was a

non-ozone-depleting substance. See id. (“For example, if a hydrofluorocarbon (HFC) is introduced as a

first-generation refrigerant substitute for either a

class I (e.g., CFC-12) or class II chemical (e.g., HCFC22), it is subject to review and listing under section

612. Future substitutions to replace the HFC would

then be exempt from reporting under section 612 because the first-generation alternative did not deplete

stratospheric ozone.” (emphasis added)).3

The majority also relies upon EPA’s statement in

response to a 1995 petition by OZ Technology, Maj.

Op. 12, but there the EPA appears to have disclaimed regulatory authority under SNAP if the substance is being proffered as a “legitimate substitut[e]” for a non-ozone-depleting substance, rather

than as a substitute for a class I or class II ozonedepleting substance. J.A. 145, 412. EPA exerted regulatory authority over the petition because it found

that OZ Technology submitted its proposed alternative as a substitute for CFC-12, an ozone-depleting

substance, rather than as a substitute to HFC-134a,

a non-ozone-depleting substitute. J.A. 412, 415. This

Similarly, in this same passage, EPA also stated “[w]here

second-generation substitutes replace first-generation substitutes that are themselves ozone-depleters (e.g., HCFCs), these

second-generation substitutes are bound by the same notification and review requirements under section 612 as firstgeneration substitutes to ozone-depleting chemicals.” Id. (emphasis added).

44a

course of events seems to be consistent with the

agency’s position here. At any rate, petitioners concede that the HFCs they manufacture are substitutes for CFCs, which are ozone-depleting substances. Thus, petitioners do not stand in the same shoes

as OZ Technology and they have not identified any

statements where EPA has disclaimed authority to

regulate HFCs or other direct substitutes for ozonedepleting substances such as CFCs.

I understand (and share) the majority’s concern

that the Clean Air Act does not grant EPA the authority to take a completely unbounded approach

and thereby regulate “substitutes” for class I and

class II substances forever. In my view, the regulation of substitutes under Section 612 requires that

the traditional and ubiquitous ozone-depleting substance originally utilized for the specific end-use is

still in service. Without the prerequisite of an ozonedepleting substance, there can be nothing for the

substitute to “replace.” In other words, where ozonedepleting chemicals are no longer in existence or in

use for a particular industry or end-use, then EPA

cannot regulate substitutes for those end-uses under

Section 612.

Here, petitioners claim that “class I and class II

substances have already been replaced” with respect

to the 25 end-uses addressed in the 2015 Rule. Pet’rs’

Br. 20. In support of this assertion, Petitioners rely

on two examples. First, Petitioners state that in the

motor-vehicle air conditioning sector, CFC-12, which

is an ozone-depleting substance, had historically

been used. Id. However, Petitioners claim that the

record shows that by the mid-1990s, use of CFC-12

in the manufacture of new cars stopped in the United

States, and manufacturers uniformly adopted HFC-

45a

134a as a substitute. Id. This statement is true as far

as it goes, but it does not show that ozone-depleting

substances are not still in use in the motor-vehicle

air conditioning sector. Indeed, the record confirms

“some older vehicles may still be using CFC-12.” J.A.

815. Thus, we cannot conclude that ozone-depleting

substances are not still in “use” in this sector.

Second, Petitioners reference the commercial refrigeration industry, arguing that because the commercial refrigeration industry has “transitioned

away” from ozone-depleting substances, such substances are no longer in use in this sector. See Pet’rs’

Br. 21; J.A. 528. This argument suffers from the

same flaw as the motor-vehicle air conditioning argument. The fact that modern commercial refrigeration systems may not use ozone-depleting chemicals

does not mean that older refrigeration systems do

not continue to use such substances, and the record

indicates that ozone-depleting substances remain in

“use” in the commercial refrigeration industry. J.A.

535. With respect to the other 23 challenged enduses, Petitioners are silent and offer no support to

prove that ozone-depleting substances have been

completely eliminated in those sectors.

EPA responds to Petitioners’ claim, arguing that

“ozone-depleting substances are still being directly

‘replaced’ by approved alternatives,” Resp’t’s Br. 21

n.8, and that “as long as ozone-depleting substances

are being used, any substitute designed to replace

these chemicals is subject to review” under Section

612, id. at 31 (alterations omitted). While EPA

acknowledges that “in some cases the use of ozonedepleting substances has ceased,” it contends that

ozone-depleting substances have not been completely

eliminated such that a “second-generation substitute

46a

world” exists. Id. Petitioners failed to respond to this

argument in their reply brief. Given that the burden

is on Petitioners to demonstrate that EPA’s interpretation of Section 612 is unreasonable or statutorily

impermissible with respect to these 25 end-uses,

they have failed to show that the agency’s policy

choice “runs counter to the evidence before the agency, or is so implausible that it could not be ascribed

to a difference in view or the product of agency expertise.” Mtr. Vehicle Mfrs. Ass’n of the U.S., Inc. v.

State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983).

***

In sum, I disagree with the majority’s holding in

Part II, and concur with all remaining parts. I would

find the word “replace” sufficiently ambiguous to require a Chevron step two analysis. Because I find

that EPA’s interpretation of Section 612 is reasonable, I would deny the petition for review on all

grounds.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 15-1328

September Term, 2017

EPA-80FR42870

Filed On: January 26, 2018

MEXICHEM FLUOR, INC.

PETITIONER

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

THE CHEMOURS COMPANY FC, LLC, ET AL.,

INTERVENORS

Consolidated with 15-1329

BEFORE: Garland, Chief Judge, and Henderson,

Rogers, Tatel, Griffith, Kavanaugh,

Srinivasan, Millett*, Pillard, Wilkins,

and Katsas*, Circuit Judges

ORDER

The petitions of intervenor-respondent Natural

Resources Defense Council and Industry intervenorrespondents for rehearing en banc, the joint response

thereto, and the joint reply; and the briefs amici curiae of Administrative Law Professors and the States

were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible

to participate did not vote in favor of the petitions.

Upon consideration of the foregoing, it is

47a

48a

ORDERED that the petitions be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Michael C. McGrail

Deputy Clerk

* Circuit Judges Millett and Katsas did not participate in this matter.

APPENDIX C

40 C.F.R. Part 82, Subpart G

Significant New Alternatives Policy Program

§ 82.170 Purpose and scope.

(a) The purpose of these regulations in this subpart is to implement section 612 of the Clean Air Act,

as amended, regarding the safe alternatives policy on

the acceptability of substitutes for ozone-depleting

compounds. This program will henceforth be referred

to as the “Significant New Alternatives Policy”

(SNAP) program. The objectives of this program are

to identify substitutes for ozone-depleting compounds, to evaluate the acceptability of those substitutes, to promote the use of those substitutes believed to present lower overall risks to human health

and the environment, relative to the class I and class

II compounds being replaced, as well as to other substitutes for the same end-use, and to prohibit the use

of those substitutes found, based on the same comparisons, to increase overall risks.

(b) The regulations in this subpart describe persons and substitutes subject to reporting requirements under the SNAP program and explain preparation and submission of notices and petitions on

substitutes. The regulations also establish Agency

procedures for reviewing and processing EPA’s determinations regarding notices and petitions on substitutes. Finally, the regulations prohibit the use of

alternatives which EPA has determined may have

adverse effects on human health or the environment

where EPA has identified alternatives in particular

industrial use sectors that on an overall basis, reduce

49a

50a

risk to human health and the environment and are

currently or potentially available. EPA will only prohibit substitutes where it has identified other substitutes for a specific application that are acceptable

and are currently or potentially available.

requested shall be sent to: SNAP Document Control

Officer, U.S. Environmental Protection Agency

(6205-J), 1200 Pennsylvania Ave., NW., Washington,

DC 20460.

§82.172 Definitions.

Act means the Clean Air Act, as amended, 42

U.S.C. 7401 et seq.

Agency means the U.S. Environmental Protection Agency.

Application means a specific use within a major

industrial sector end-use.

Class I or class II means the specific ozonedepleting compounds described in section 602 of the

Act.

Decision means any final determination made by

the Agency under section 612 of the Act on the acceptability or unacceptability of a substitute for a

class I or II compound.

EPA means the U.S. Environmental Protection

Agency.

End-use means processes or classes of specific

applications within major industrial sectors where a

substitute is used to replace an ozone-depleting substance.

Formulator means any person engaged in the

preparation or formulation of a substitute, after

51a

chemical manufacture of the substitute or its components, for distribution or use in commerce.

Health and safety study or study means any

study of any effect of a substitute or its components

on health and safety, or the environment or both, including underlying data and epidemiological studies,

studies of occupational, ambient, and consumer exposure to a substitute, toxicological, clinical, and ecological, or other studies of a substitute and its components, and any other pertinent test. Chemical

identity is always part of a health and safety study.

Information which arises as a result of a formal, disciplined study is included in the definition. Also included is information relating to the effects of a substitute or its components on health or the environment. Any available data that bear on the effects of a

substitute or its components on health or the environment would be included. Examples include:

(1) Long- and short-term tests of mutagenicity, carcinogenicity, or teratogenicity; data on behavioral disorders; dermatoxicity; pharmacological effects; mammalian absorption, distribution, metabolism, and excretion; cumulative, additive, and synergistic effects; acute, subchronic, and chronic effects;

and structure/activity analyses;

(2) Tests for ecological or other environmental

effects on invertebrates, fish, or other animals, and

plants, including: Acute toxicity tests, chronic toxicity tests, critical life stage tests, behavioral tests, algal growth tests, seed germination tests, microbial

function tests, bioconcentration or bioaccumulation

tests, and model ecosystem (microcosm) studies;

(3) Assessments of human and environmental

exposure, including workplace exposure, and effects

52a

of a particular substitute on the environment, including surveys, tests, and studies of: Biological, photochemical, and chemical degradation; air, water and

soil transport; biomagnification and bioconcentration; and chemical and physical properties, e.g., atmospheric lifetime, boiling point, vapor pressure,

evaporation rates from soil and water, octanol/water

partition coefficient, and water solubility;

(4) Monitoring data, when they have been aggregated and analyzed to measure the exposure of

humans or the environment to a substitute; and

(5) Any assessments of risk to health or the

environment resulting from the manufacture, processing, distribution in commerce, use, or disposal of

the substitute or its components.

Importer means any person who imports a chemical substitute into the United States. Importer includes the person primarily liable for the payment of

any duties on the merchandise or an authorized

agent acting on his or her behalf. The term also includes, as appropriate:

(1) The consignee;

(2) The importer of record;

(3) The actual owner; and

(4) The transferee, if the right to draw merchandise in a bonded warehouse has been transferred.

Major Industrial Use Sector or Sector means an

industrial category which EPA has reviewed under

the SNAP program with historically high consumption patterns of ozone-depleting substances, including: Refrigeration and air conditioning; foamblowing; fire suppression and explosion protection;

53a

solvents cleaning; aerosols; sterilants; tobacco expansion; pesticides; and adhesives, coatings and inks

sectors.

Manufacturer means any person engaged in the

direct manufacture of a substitute.

Mixture means any mixture or blend of two or

more compounds.

Person includes an individual, corporation, partnership, association, state, municipality, political

subdivision of a state, and any agency, department,

or instrumentality of the United States and any officer, agent, or employee of such entities.

Pesticide has the meaning contained in the Federal Insecticide, Fungicide, and Rodenticide Act, 7

U.S.C. 136 et seq. and the regulations issued under

it.

Potentially available is defined as any alternative for which adequate health, safety, and environmental data, as required for the SNAP notification

process, exist to make a determination of acceptability, and which the Agency reasonably believes to be

technically feasible, even if not all testing has yet

been completed and the alternative is not yet produced or sold.

Premanufacture Notice (PMN) Program has the

meaning described in 40 CFR part 720, subpart A

promulgated under the Toxic Substances Control

Act, 15 U.S.C. 2601 et seq.

Producer means any person who manufactures,

formulates or otherwise creates a substitute in its

final form for distribution or use in interstate commerce.

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Research and development means quantities of a

substitute manufactured, imported, or processed or

proposed to be manufactured, imported, or processed

solely for research and development.

Residential use means use by a private individual of a chemical substance or any product containing

the chemical substance in or around a permanent or

temporary household, during recreation, or for any

personal use or enjoyment. Use within a household

for commercial or medical applications is not included in this definition, nor is use in automobiles, watercraft, or aircraft.

Significant new use means use of a new or existing substitute in a major industrial use sector as a

result of the phaseout of ozone-depleting compounds.

Small uses means any use of a substitute in a

sector other than a major industrial use sector, or

production by any producer for use of a substitute in

a major industrial sector of 10,000 lbs. or less per

year.

Substitute or alternative means any chemical,

product substitute, or alternative manufacturing

process, whether existing or new, intended for use as

a replacement for a class I or II compound.

Test marketing means the distribution in interstate commerce of a substitute to no more than a limited, defined number of potential customers to explore market viability in a competitive situation.

Testing must be restricted to a defined testing period

before the broader distribution of that substitute in

interstate commerce.

Use means any use of a substitute for a Class I or

Class II ozone-depleting compound, including but not

limited to use in a manufacturing process or product,

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in consumption by the end-user, or in intermediate

uses, such as formulation or packaging for other subsequent uses.

Use restrictions means restrictions on the use of

a substitute imposing either conditions on how the

substitute can be used across a sector end-use or limits on the end-uses or specific applications where it

can be used within a sector.

§82.174 Prohibitions.

(a) No person may introduce a new substitute

into interstate commerce before the expiration of 90

days after a notice is initially submitted to EPA under §82.176(a).

(b) No person may use a substitute which a person knows or has reason to know was manufactured,

processed or imported in violation of the regulations

in this subpart, or knows or has reason to know was

manufactured, processed or imported in violation of

any use restriction in the acceptability determination, after the effective date of any rulemaking imposing such restrictions.

decision, after the effective date of any rulemaking

imposing such restrictions.

(d) No person may use a substitute after the effective date of any rulemaking adding such substitute to the list of unacceptable substitutes.

(e) Rules Stayed for Reconsideration. Notwithstanding any other provision of this subpart, the effectiveness of subpart G is stayed from December 8,

1994, to March 8, 1995, only as applied to use of substitutes for export.

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§82.176 Applicability.

(a) Any producer of a new substitute must submit a notice of intent to introduce a substitute into

interstate commerce 90 days prior to such introduction. Any producer of an existing substitute already

in interstate commerce must submit a notice as of

July 18, 1994, if such substitute has not already been

reviewed and approved by the Agency.

(b) With respect to the following substitutes,

producers are exempt from notification requirements:

(1) Substitutes already listed as acceptable.

Producers need not submit notices on substitutes

that are already listed as acceptable under SNAP.

(2) Small sectors. Persons using substitutes

in sectors other than the nine principal sectors reviewed under this program are exempt from the notification requirements. This exemption shall not be

construed to nullify an unacceptability determination or to allow use of an otherwise unacceptable

substitute.

(3) Small volume use within SNAP sectors.

Within the nine principal SNAP sectors, persons introducing a substitute whose expected volume of use

amounts to less than 10,000 lbs. per year within a

SNAP sector are exempt from notification requirements. This exemption shall not be construed to allow use of an otherwise unacceptable substitute in

any quantity. Persons taking advantage of this exemption for small uses must maintain documentation for each substitute des

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