Amicus Curiae Brief — Honeywell International Inc., et al., Petitioners v. Mexichem Fluor Inc., et al.

Nos. 17-1703 & 18-2

In the Supreme Court of the United States

_____________________________________________________

HONEYWELL INTERNATIONAL INC., ET AL.,

Petitioners,

v.

MEXICHEM FLUOR, INC., ET AL.,

Respondents.

_____________________________________________________

NATURAL RESOURCES DEFENSE COUNCIL,

Petitioner,

v.

MEXICHEM FLUOR, INC., ET AL.,

Respondents.

_____________________________________________________

ON PETITIONS FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

_____________________________________________________

BRIEF OF MASSACHUSETTS, CONNECTICUT,

DELAWARE, HAWAI’I, ILLINOIS, IOWA, MAINE,

MARYLAND, MINNESOTA, BY AND THROUGH ITS

POLLUTION CONTROL AGENCY, NEW JERSEY,

NEW YORK, NORTH CAROLINA, OREGON, PENNSYLVANIA, VERMONT, VIRGINIA, WASHINGTON,

AND THE DISTRICT OF COLUMBIA AS AMICI CURIAE IN SUPPORT OF PETITIONERS

_____________________________________________________

MAURA HEALEY

Attorney General of

Massachusetts

CHRISTOPHE COURCHESNE MEGAN M. HERZOG*

SETH SCHOFIELD

Special Assistant Attorney

AMANDA I. MOREJON

General

Assistant Attorneys

One Ashburton Place, 18th Fl.

General

Boston, MA 02108

(617) 727-2200

megan.herzog@state.ma.us

*Counsel of Record

(Additional counsel listed on signature page.)

i

TABLE OF CONTENTS

Page

Table of Authorities .................................................. ii

Interests of Amici Curiae ......................................... 1

Statement ................................................................. 3

Summary of Argument ............................................. 5

Reasons for Granting the Petition ........................... 8

I. The Decision Below Inflicts Substantial Harm

on States That Only This Court Can Remedy. .. 8

A. The Court Upended States’ Reliance on

the SNAP Program as a Strong National

Regulatory Floor to Reduce Human

Health and Environmental Risks. ............... 8

B. State-By-State Regulation Cannot Fill

the Substantial Regulatory Gap Created

by the Decision Below. .................................. 9

C. The Ruling Has Generated Illogical

Results and Enormous Regulatory

Uncertainty. ................................................ 12

II. The Court Below Disregarded the Plain Text of

the Clean Air Act............................................... 17

A. The Court’s Reading of “Replace” Is

Inappropriately Narrow, and Conflicts

with the Statute’s Structure and

Purpose. ....................................................... 18

B. The Court’s Reliance on EPA’s Purported

Prior Interpretation Was Wholly

Misplaced. ................................................... 22

Conclusion............................................................... 23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

City of Arlington v. FCC, 569 U.S. 290 (2013).......... 20

EPA v. EME Homer City Generation, L.P.,

134 S. Ct. 1584 (2014) .......................................... 21

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .............................................. 18

Hodel v. Va. Surface Min. & Reclamation Ass’n,

Inc., 452 U.S. 264 (1981) ..................................... 11

Jama v. Immigration & Customs Enf’t,

543 U.S. 335 (2005) .............................................. 21

Massachusetts v. EPA, 549 U.S. 497 (2007) ............. 17

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ............................................ 21

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) .......... 21

Util. Air Regulatory Grp. v. EPA,

134 S. Ct. 2427 (2014) .......................................... 18

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .............................................. 21

Federal Statutes

42 U.S.C. § 7607(b)(1) ........................................ 3, 7, 22

42 U.S.C. § 7671a ......................................................... 3

42 U.S.C. § 7671c ......................................................... 3

42 U.S.C. § 7671d......................................................... 3

42 U.S.C. § 7671k(a) .......................................... passim

iii

Page(s)

Federal Statutes—Continued

42 U.S.C. § 7671k(b) .................................................. 20

42 U.S.C. § 7671k(c)............................. 3, 14, 18, 20, 21

42 U.S.C. § 7671k(d) .............................................. 4, 20

State Statutes

MASS. GEN. LAWS c. 21N, § 4(a) ................................. 16

Regulations

40 C.F.R. § 82.172 .................................................. 4, 22

40 C.F.R. § 82.174(d) ....................................... 4, 22, 23

40 C.F.R. § 82.176(a).................................................. 23

Other Authorities

59 Fed. Reg. 13,044 (Mar. 18, 1994) ......... 4, 13, 22, 23

61 Fed. Reg. 54,030 (Oct. 16, 1996) ............................ 4

64 Fed. Reg. 3865 (Jan. 26, 1999) ............................... 4

80 Fed. Reg. 42,870 (July 20, 2015) ........................ 4, 7

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

Brian Costello, Inside the Jets’ Decades-Old

Search to Replace Joe Namath, N.Y. POST, Oct.

28, 2014, https://tinyurl.com/y7x3nf2y ................ 20

Daniel Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570 (1996) ........................ 11

EXEC. ORDER NO. 166 (N.Y. 2017) ............................. 17

iv

Page(s)

Other Authorities—Continued

EXEC. OFF. OF ENERGY & ENVTL. AFFAIRS,

MASSACHUSETTS CLEAN ENERGY AND CLIMATE

PLAN FOR 2020: 2015 UPDATE (2015),

https://tinyurl.com/yavykfsa ................................ 17

JOSH PAHIGIAN, THE RED SOX IN THE PLAYOFFS: A

POSTSEASON HISTORY, 1903–2005 (2006) ............ 19

Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy,

86 YALE L.J. 1196 (1977) ............................... 11, 12

George Stockburger, Phillies: Seven Years Later,

Phillies Still Haven’t Replaced Werth in Right

Field, THAT BALL’S OUTTA HERE (Jan. 30,

2018), https://tinyurl.com/y9kto3ty ..................... 19

1

INTERESTS OF AMICI CURIAE 1

Amici curiae are the Commonwealths of Massachusetts, Pennsylvania, and Virginia, the States of Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maine,

Maryland, Minnesota, by and through its Minnesota

Pollution Control Agency, New Jersey, New York,

North Carolina, Oregon, Vermont, and Washington,

and the District of Columbia. The Amici States share

a substantial interest in protecting the health of their

residents and the environment from the risks of harmful chemical substitutes for ozone-depleting substances. Given the global nature and complexity of the

chemical industry, and the ubiquity of products containing ozone-depleting substances or substitutes, a

strong federal regulatory floor is vital to protect the

Amici States and their residents and businesses from

the risks of substitutes for ozone-depleting substances. The Amici States therefore seek to ensure

that the U.S. Environmental Protection Agency (EPA)

may exercise its longstanding and consistently applied

authority under the Clean Air Act to ban all uses of

unsafe substitutes, including the dangerous pollutants known as hydrofluorocarbons (HFCs), for which

a safer alternative is available.

1 Per Rule 37.6, the Amici States affirm that no counsel for

any party authored this brief in whole or in part, and no person

or entity other than the Amici States contributed monetarily to

the preparation or submission of this brief. The Amici States

timely notified counsel of record for all parties of their intent to

file this brief as required by Rule 37.2(a). All parties have given

their consent to the filing of this brief.

2

The Amici States have long relied on EPA’s reasonable exercise of its statutory authority to protect human health and the environment from the harmful effects of substitutes for ozone-depleting substances,

and to incentivize industry investment in cleaner,

safer alternatives. For decades, EPA’s regulatory program has been remarkably effective and efficient at

promoting the development and use of those alternatives nationwide. The decision below harms the Amici

States’ interests by holding that EPA can no longer

ban unsafe substitutes for ozone-depleting substances

where it determines safer alternatives are available.

Indeed, the decision produces the incongruous result

that a statute intended to reduce overall risks could

now increase risks, as it renders EPA powerless to ban

chemicals that are riskier than both newer substitutes

and the ozone-depleting substances themselves. This

holding guts EPA’s effective regulatory program and

exposes human health and the environment to grave

risks. The decision is irreconcilable with Congress’ intent and how EPA has long implemented the program,

casting doubt on the program’s scope and generating

enormous uncertainty for states and regulated entities.

The Amici States also share a substantial interest

in ensuring that courts preserve and uphold foundational principles of statutory construction and separation of powers, and avoid improperly disrupting sensible and longstanding federal regulatory schemes upon

which the Amici States, businesses, and consumers

rely. The decision below departs from these principles, adopting an interpretation of the Clean Air Act

that ignores the statute’s structure and its purpose to

protect human health and the environment. Because

3

the D.C. Circuit has exclusive authority over challenges to EPA’s regulatory program, 42 U.S.C.

§ 7607(b)(1), only this Court can correct the decision

below.

STATEMENT

In 1990, Congress enacted Title VI of the Clean Air

Act to phase out the production and use of substances

that harm the stratospheric ozone layer. See 42 U.S.C.

§§ 7671a, 7671c–7671d. The ozone layer shields Earth

from dangerous levels of the sun’s ultraviolet radiation. Depletion of the ozone layer increases the incidence of skin cancer, among other health and environmental harms. Congress adopted section 612 of the

Clean Air Act, the “safe alternatives policy,” to ensure

that the phase-out of ozone-depleting substances,

which were then widely used in consumer products

and industrial applications, did not give rise to dangerous substitute chemicals. The safe alternatives

policy makes it unlawful for anyone to “replace” an

ozone-depleting substance with a “substitute” that

EPA “determines may present adverse effects to human health or the environment” if EPA has identified

an available alternative that “reduces the overall risk

to human health and the environment.” Id. § 7671k(c).

The safe alternatives policy ensures that over time,

and “to the maximum extent practicable,” everyone is

using the safest available substitutes for ozone-depleting substances. Id. § 7671k(a).

To this end, section 612(c) requires EPA to publish

and update lists of acceptable and prohibited substitutes “for specific uses.” Id. § 7671k(c). Any person

may petition EPA at any time to add or remove a substitute from its lists of acceptable and prohibited sub-

4

stitutes. Id. § 7671k(d). EPA makes listing determinations through its Significant New Alternatives Policy—or “SNAP”—Program. Under that program,

EPA, from time to time, has moved substitutes from

its acceptable list to its prohibited list, in keeping with

advances in science and technology and its statutory

mandate to reduce health and environmental risks to

“the maximum extent practicable.” See, e.g., 64 Fed.

Reg. 3865, 3867 (Jan. 26, 1999) (moving the refrigerant hexafluoropropylene, or HFP, from the acceptable

list to the prohibited list based on emerging evidence

of its toxicity); 61 Fed. Reg. 54,030, 54,038 (Oct. 16,

1996) (prohibiting uses of the climate-change-causing

pollutant sulfur hexafluoride, or SF6, in aerosol products). A longstanding EPA rule codified in 1994, 59

Fed. Reg. 13,044, 13,148 (Mar. 18, 1994), bans the “use

[of any] substitute after the effective date of any rulemaking adding such substitute to the list of unacceptable substitutes.” 40 C.F.R. § 82.174(d); see also

id. § 82.172 (defining “use” broadly to include use by

manufacturers, intermediate users, and end-users).

The 2015 Rule at issue here followed EPA’s welldeveloped regulatory path. In the 2015 Rule, EPA prohibited specific uses of HFCs after it identified available alternatives that are safer for both the ozone layer

and the climate. 80 Fed. Reg. 42,870 (July 20, 2015).

HFCs are climate super-pollutants with hundreds to

thousands of times the global-warming potential of

carbon dioxide. See id. at 42,879. HFC emissions are

among the fastest growing sources of greenhouse-gas

pollution in the country, and, if left unregulated, could

“double by 2020 and triple by 2030.” Id.

5

SUMMARY OF ARGUMENT

For nearly 25 years, states have relied on EPA’s

SNAP Program to protect consumers, businesses, and

the environment from unsafe substitutes for ozone-depleting substances. In particular, EPA’s ban on all

uses of prohibited substitutes has provided a uniform

floor of strong national regulation and incentivized

clean-industry investments that have benefited states

and their residents. States have developed their own

regulatory programs that assume the benefits of this

national floor.

The divided D.C. Circuit decision below has thrown

EPA’s 25-year-old regulatory program—and the

states, consumers, and businesses that have long relied on it—into disarray. The court held that EPA can

no longer ban all uses of a prohibited substitute under

the SNAP Program, no matter how poisonous, explosive, or harmful to the environment the substitute

may be. The decision is based on an implausibly

cramped reading of the word “replace” in section 612

of the Clean Air Act. Relying on that misreading, the

court concluded that some substitute users, including

certain manufacturers that previously “replaced”

ozone-depleting substances with HFCs, are now exempt from EPA’s ban on the use of prohibited substitutes. The court vacated EPA’s 2015 Rule “to the extent the Rule requires manufacturers to replace HFCs

with a substitute substance.” Honeywell Pet. App.

22a. The Court was critically unclear as to how far the

new exemption it created extends.

In a vigorous dissent, Judge Wilkins observed that

the majority’s “extreme” interpretation subverted the

practical effect of EPA’s authority to list substances as

prohibited. Id. 35a. The majority’s interpretation, he

6

emphasized, “makes a mockery” of Congress’ intent to

reduce overall health and environmental risks. Id.

34a. Indeed, if the majority’s decision is not reversed,

EPA’s SNAP Program could now have the perverse effect of increasing overall risks by exempting from

EPA’s regulatory ambit uses of chemicals that pose

greater dangers than ozone-depleting substances

themselves.

The decision below not only is plainly wrong but

also imposes deleterious consequences on the Amici

States and the country as a whole.

First, the majority disrupted states’ decades-long

reliance on EPA’s exercise of its statutory authority

and technical expertise to restrict use of unsafe substitutes. If the decision below stands, states can no

longer rely on the SNAP Program to ensure that millions of air conditioners, refrigerators, cosmetics,

spray cans, household cleaners, and myriad other substitute-containing products do not pose undue dangers

to their residents and the environment. States also

can no longer rely on the SNAP Program to provide

strong incentives to the global chemical industry to invest in the development of cleaner, safer alternatives.

States that seek to act in EPA’s stead will face the

Hobson’s choice of leaving chemical uses unregulated

or endeavoring to regulate the use of substitutes for

ozone-depleting substances in what could amount to

millions of products, facilities, and applications that

cross and span state borders. New state policies in

this complex area could be costly to state agencies and

time-consuming to develop and implement, and potentially lead to varying regulatory schemes across

states. And a state-by-state regulatory regime could

7

never match the effectiveness, efficiency, and enforceability of the strong national floor that the court below

dismantled.

Second, the decision below has generated nonsensical results, as well as “substantial confusion and uncertainty.” 83 Fed. Reg. 18,431, 18,434 (Apr. 27,

2018). EPA is struggling to implement the court’s

holding because it conflicts with the core purposes and

tenets of the regulatory program and with the practical realities of how ozone-depleting substances and

substitutes are used. See id. The decision has cast

doubt on the scope of the program, leaving states uncertain as to what state action may now be necessary

to protect human health and the environment from

dangerous substitutes. The court left unclear, for example, whether other types of users, beyond product

manufacturers that previously “replaced” ozone-depleting substances with a non-ozone-depleting substitute, might also now be exempt from EPA’s ban on prohibited substitutes. Until these uncertainties are resolved, EPA announced it will not enforce the prohibitions in the 2015 Rule against anyone, including current users of ozone-depleting substances. Id. at

18,432. Meanwhile, unrestricted uses of HFCs are

causing irreversible climate harm that adversely affects public health and the environment, and imposes

substantial costs on states. See 80 Fed. Reg. at 42,870,

42,879, 42,944.

Because the D.C. Circuit has exclusive jurisdiction

over EPA’s implementation of the safe alternatives

policy, only this Court can end the current chaos and

stem further injury to states, their residents, and their

businesses from the erroneous decision below. See 42

U.S.C. § 7607(b)(1).

8

REASONS FOR GRANTING THE PETITION

I.

The Decision Below Inflicts Substantial

Harm on States That Only This Court Can

Remedy.

Congress established the safe alternatives policy to

ensure that the transition away from ozone-depleting

substances would not be a cure worse than the disease.

For nearly 25 years, states and businesses have relied

on EPA to implement its SNAP Program consistent

with this mission, through the continued regulation of

unsafe substitutes. The decision below radically disrupted this sensibly crafted scheme. The decision’s

consequences for states are vast, and state policies

alone cannot remedy the resulting harms. Unless this

Court steps in, states will continue to suffer substantial and indefinite injury.

A.

The Court Upended States’ Reliance

on the SNAP Program as a Strong

National Regulatory Floor to Reduce Human Health and Environmental Risks.

The decision below upset states’ decades-long reliance on the SNAP Program’s robust nationwide regulation of substitutes for ozone-depleting substances.

EPA can no longer universally prohibit all users from

using unsafe substitutes, no matter how dangerous or

deadly the substitute may be. Consequently, states

can no longer be reasonably assured that their consumers and businesses are purchasing and using the

safest available products and processes. And states

can no longer have confidence that the SNAP Program

is protecting their residents and the environment from

9

dangerous substitutes, consistent with Congress’ directive to “reduce overall risks to human health and

the environment.” 42 U.S.C. § 7671k(a).

The decision below also diluted the important market signal that EPA’s strong national regulatory regime previously sent to the chemical industry. A

weaker regime will lessen incentives for the industry

to continue the vitally important work of developing

new, high-performing substitutes that reduce health

and environmental risks, to the benefit of states and

their residents. To be clear, continued use of ozonedepleting substances—particularly in the supermarket refrigeration and motor-vehicle air conditioning

sectors—remains an ongoing concern to the Amici

States. In the wake of the decision below, the Amici

States will face increased health and environmental

harms from ozone-depleting substances, HFCs, and

other harmful substitutes for what could be decades,

or more, to come.

B.

State-By-State Regulation Cannot

Fill the Substantial Regulatory Gap

Created by the Decision Below.

By significantly undercutting EPA’s authority to

address this public health and environmental threat,

the D.C. Circuit has abruptly shifted the burden to

states to ensure that their residents, businesses, and

environment are protected from dangerous substitutes for ozone-depleting substances. But states face

considerable challenges and limitations in attempting

to regulate substitute use. Unfortunately, there is no

way for even the most motivated and well-resourced

state to completely fill the hole created by the decision

below.

10

A sophisticated chemical regulatory regime is not

built overnight. Developing and enforcing state-level

policies would be costly and time-consuming for resource-strapped states. This is particularly problematic because states may lack the resources to evaluate

and police substitute use and need time to develop this

capacity. Notably, while EPA has nearly a quartercentury of experience regulating ozone-depleting substances and their substitutes, many states would be

examining this issue for the first time. Some states

may even need to seek new legislative authority or secure additional staff for implementation and enforcement of state-level policies. Meanwhile, until strong

state policies are in place, the harms associated with

now-unrestricted uses of dangerous substitutes would

continue to accumulate.

Indeed, even if every state were to regulate substitutes for ozone-depleting substances, a state-by-state

regulatory regime would have at least two inherent

limitations as compared to a federal regulatory regime

that sets a strong national floor.

First, it is challenging for states to protect their

residents from the risks of the many substitute-containing products that cross state or international borders. States that attempt to regulate substitutes for

ozone-depleting substances may have difficulty adequately policing smuggling and interstate supplychain operations. And states with stringent use restrictions may be bordered by states with lenient or no

restrictions. Such states would face practical challenges in enforcing restrictions against residents and

businesses that purchase a substitute-containing

product, such as an air-conditioning unit, in a neighboring state and bring that product home to use. And

11

uses of substitutes that contribute to global climate

change, such as HFCs and sulfur hexafluoride, would

harm all states no matter where the use occurs.

Second, state-by-state regulations would likely fail

to achieve the same reductions in uses of unsafe chemicals as a national program. Diverse state standards,

no matter how stringent, would not create the same

incentives as a strong national floor for industry to

commit big investments to cleaner, safer processes

and to shift behavior on a national and global scale.

See Daniel Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570, 619–20 (1996) (“[D]evolution [of centralized environmental regulation] promises to exacerbate the difficulty of achieving scale

economies sufficient to promote innovation, bring new

technologies to bear on U.S. environmental problems,

and lower the cost of environmental protection.”). The

desire among states to attract new business investment, coupled with the political influence of regional,

national, and multinational corporations, may impede

the adoption of strong health and environmental protections at the state level, and could even generate a

race to the bottom among some states. 2

2 Cf. Honeywell Pet. 16, 23; Hodel v. Va. Surface Min. & Rec-

lamation Ass’n, Inc., 452 U.S. 264, 281–82 (1981) (deferring to

Congress’ finding that nationwide surface coal mining standards

were “essential” to avoid “destructive interstate competition”

that might undermine state environmental standards); Richard

B. Stewart, Pyramids of Sacrifice? Problems of Federalism in

Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1215–16 (1977) (noting that decentralized

pollution-control regimes may have spillover effects, whereby

states with laxer standards “inflict economic loss (in the form of

12

C.

The Ruling Has Generated Illogical

Results and Enormous Regulatory

Uncertainty.

States, EPA, and regulated entities alike are struggling to make sense of the substantial illogical consequences and critical ambiguities of the court’s interpretation. Indeed, following the decision, EPA has decided that it cannot administer the current program

due to the “considerable ambiguity about who is the

‘manufacturer’ for certain products” and other “practical difficulties for implementation” the decision has

created. 83 Fed. Reg. at 18,434. Neither regulators

nor regulated parties know who remains subject to

EPA’s ban on prohibited substitutes and who is now

exempt. States and regulated businesses are thus in

limbo, with little guidance from EPA or the D.C. Circuit for their respective policy and investment decisions, and with no clear timeline for when this uncertainty will be resolved. Unless this Court steps in, it

could well be years before states have clarity about the

scope of EPA’s authority to regulate use of harmful

substitutes for ozone-depleting substances.

The significant regulatory uncertainty that states

and their businesses are now experiencing flows from

the fact that the majority’s directive simply makes no

sense from either a policy or a practical perspective.

For instance, EPA does not know how to apply the decision where a single piece of equipment involves multiple uses of chemicals, such as a commercial refrigerator that uses both a refrigerant and insulation foam,

either of which could be an ozone-depleting substance

industrial migration or decreased economic growth) on other

states that prefer a higher level of environmental quality”).

13

or a substitute. See id. at 18,434. Nor does EPA know

how to apply the decision where companies own multiple facilities or assemble multiple products, some of

which may still use ozone-depleting substances while

others may use substitutes. See id. at 18,435.

The 2015 Rule, for its part, made no distinctions

between product manufacturers and other users of

ozone-depleting substances. See id. at 18,433. Nor

has EPA ever distinguished between manufacturers

and other users who were using ozone-depleting substances at the time of a listing decision and those who

were not. Id. at 18,433–34. Indeed, EPA confirms that

it has never required users to record or report when

they switch from an ozone-depleting substance to a

substitute. Id. These regulatory decisions all make

sense under a regime where EPA distinguishes among

uses and not users. The decision below upset EPA’s

longstanding program with a raft of implementation

questions that have no evident answers.

These questions could ultimately place particularly

substantial burdens and costs on smaller businesses,

which are vitally important to state economies. The

decision could be interpreted to allow certain product

manufacturers to make products containing substitutes that end-users are prohibited from using. Id. at

18,436. This illogical result could be enormously disruptive and costly for smaller businesses that have

traditionally relied on product manufacturers’ compliance with EPA’s listing decisions. Id. at 18,436. Nothing in the safe alternatives policy indicates that Congress intended to impose such inefficient and costly

regulatory burdens on end-users as opposed to manufacturers and other users higher in the supply chain.

Cf. 59 Fed. Reg. at 13,121 (expecting that the SNAP

14

Program would impose “minor” costs and be “unlikely

to adversely affect small businesses”). Yet, the court

below neither took account of such consequences, nor

said anything to forestall them. See Honeywell Pet.

App. 10a, n. 1. Notably, it would be difficult for states

to mitigate these potential burdens on smaller businesses in their states.

More irrational consequences could flow from the

ambiguity of the decision below. The decision could be

read to allow a new manufacturer that has never used

an ozone-depleting substance to begin using any prohibited substitute in its products (as the new manufacturer would not be “replacing” an ozone-depleting

substance, under the court’s reading of the statutory

term “replace”). This would be so even though an older

competitor manufacturing the same type of products,

but with ozone-depleting substances, would be prohibited from switching to that same substitute. Yet, the

substitute poses equal health and environmental dangers regardless of which manufacturer is using it.

Congress could not have intended its program to discriminate needlessly against some regulated parties to

the disadvantage of others. Indeed, the statute is focused entirely on unsafe uses and makes no distinctions among substitute users. See 42 U.S.C. § 7671k(c)

(requiring EPA to list “substitutes prohibited . . . for

specific uses”).

The decision below cast further uncertainty by alluding to the possibility that users beyond product

manufacturers could fall within the new exemption

the court created. In a footnote, the majority noted

that, “[a]lthough we focus primarily on product manufacturers in this case, our interpretation of Section

15

612(c) applies to any regulated parties that must replace ozone-depleting substances . . . .” Honeywell Pet.

App. 10a, n. 1. While this may have been an attempt

to clarify the opinion’s scope, it simply complicated

matters further by implicating other entities that are

subject to EPA’s listing determinations beyond just

product manufacturers, including service technicians,

packagers, grocery stores, and many more. Because of

the court’s decision, EPA may now have to determine

when and if such users have “replaced” ozone-depleting substances with non-ozone-depleting substitutes—a difficult, if not impossible, task. For instance, how can EPA apply the majority’s distinction

to technicians who install, service, and repair both

equipment that contains ozone-depleting substances

and equipment that contains non-ozone-depleting substitutes? The majority did not mention this complexity or offer any guidance.

The decision could even be read to allow regulated

parties to manipulate the program by switching from

a safer substitute to a cheaper, more dangerous one,

even if the cheaper substitute has been on the prohibited list for years (as such parties would not be directly

“replacing” an ozone-depleting substance). The Amici

States’ concern about this possible outcome is not a

mere academic fear. As Petitioners Honeywell and

Chemours explain, there is a real danger that companies seeking to minimize production costs could revert

to less-safe alternatives, which are commonly less expensive. Honeywell Pet. 23. Congress could not have

intended such a nonsensical result, especially where it

flows from an isolated reading of a single word in a

statute designed to “reduce overall risks to human

health and the environment.” 42 U.S.C. § 7671k(a);

see infra pt. II-A.

16

Unsurprisingly, EPA has acknowledged that the

decision is causing “substantial confusion and uncertainty.” 83 Fed. Reg. at 18,434. To the Amici States’

and the public’s great detriment, EPA has given up

trying to sort out the chaos. In May, EPA announced

that it “will not apply the HFC listings in the 2015

Rule” to anyone—including prohibitions the court below upheld as reasonable, such as prohibiting manufacturers that are using ozone-depleting substances

from switching to HFCs. Id. at 18,431, 18,432. While

the Amici States believe EPA’s response was unlawful, 3 there can be no doubt that the substantial confusion and disorder generated by the decision below has

wreaked havoc on EPA’s existing, longstanding regulatory scheme.

In addition to the obvious concerns on the part of

regulated entities, this uncertainty is harming states,

as well. For instance, several of the Amici States relied on the 2015 Rule in developing strategies to

achieve state-level greenhouse-gas emission-reduction

goals. 4 Massachusetts, Maryland, and New York rely

3 In State of New York, et al. v. EPA, No. 18-1174 (D.C. Cir.

June 26, 2018), some of the Amici States and several other states

are challenging EPA’s response to the decision below. EPA’s decision not to apply the HFC listings in the 2015 Rule exacerbates

the pollution harms from the decision by allowing entities that

still use ozone-depleting substances, such as a significant number of grocery stores and supermarkets with commercial refrigeration systems, to switch to HFCs, despite the court’s express

ruling upholding EPA’s authority to prohibit such replacement.

See Honeywell Pet. App. 12a.

4 See, e.g., MASS. GEN. LAWS c. 21N, § 4(a) (imposing a legally

binding requirement on Massachusetts to reduce its greenhousegas emissions 25% below 1990 levels by 2020 and 80% by 2050);

17

on EPA’s rules to help achieve state emission-reduction targets and have so far not adopted regulations

regarding HFCs at the state level. 5 If EPA cannot enforce the provisions of the 2015 Rule, it is likely that

HFCs will account for a higher percentage of states’

greenhouse-gas emissions, thereby making state emission-reduction targets and mandates more difficult to

achieve. Moreover, the partial vacatur ordered below

broadly threatens to harm all states, regardless of

whether they currently have state emission-reduction

targets, because all states benefit from federal prohibitions of HFC use that help mitigate the harmful effects of global climate change. See Massachusetts v.

EPA, 549 U.S. 497, 519–23 (2007) (finding that states

have a quasi-sovereign interest in mitigating the serious harms associated with climate change). To the extent the decision below has effectively gutted the federal regulatory regime for HFCs, such states may need

to attempt to limit the resulting harms.

II.

The Court Below Disregarded the Plain

Text of the Clean Air Act.

These disruptions and harms follow from a decision that disregarded the text, structure, and purpose

of the Clean Air Act’s safe alternatives policy. It is a

“fundamental canon of statutory construction that the

EXEC. ORDER NO. 166 (N.Y. 2017) (committing New York to reduce its greenhouse-gas emissions by 40% by 2030 and 80% below

1990 levels by 2050).

5 See, e.g., EXEC. OFF. OF ENERGY & ENVTL. AFFAIRS, MASSA-

CHUSETTS CLEAN ENERGY AND CLIMATE PLAN FOR 2020: 2015 UPDATE 38 (2015), https://tinyurl.com/yavykfsa (considering the

2015 Rule in Massachusetts’ plan to achieve its near-term emission-reduction mandate).

18

words of a statute must be read in their context and

with a view to their place in the overall statutory

scheme.” Util. Air Regulatory Grp. v. EPA, 134 S. Ct.

2427, 2441 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). Yet the

court below divorced the word “replace” from the context in which it appears, including Congress’ mandate

that the transition from ozone-depleting substances to

substitutes “reduce overall risks to human health and

the environment.” 42 U.S.C. § 7671k(a). The resulting decision is incompatible with the statute.

A.

The Court’s Reading of “Replace” Is

Inappropriately Narrow, and Conflicts with the Statute’s Structure

and Purpose.

Although the opinion below mentioned the importance of carefully construing statutory language, it

gravely misread the Clean Air Act, which unambiguously indicates Congress’ intent to restrict all uses of

substitutes for ozone-depleting substances where a

safer alternative is available. The court’s flawed interpretation hinged on its reading of the single term

“replace” in section 612. Section 612(c) states that “it

shall be unlawful to replace any [ozone-depleting] substance with any substitute substance” for which EPA

has identified a safer available alternative. 42 U.S.C.

§ 7671k(c). According to the court, “the word ‘replace’

refers to a new thing taking the place of the old” at a

specific point in time, as when President Obama “replaced” President Bush in January 2009. Honeywell

Pet. App. 14a. Therefore, the court held, “manufacturers ‘replace’ an ozone-depleting substance when they

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

19

replacement has been effectuated,” and EPA’s authority is abruptly cut off. Id.

But the court’s reading of “replace” is inappropriately narrow and defies common usage. As Judge Wilkins aptly noted in his dissent, the “statute is not directed to a specific individual or position.” Id. 30a. Instead, the “replace” requirements of section 612 extend broadly to all uses of alternatives for ozone-depleting substances by any user. “[T]he majority’s example noting that ‘President Obama replaced President Bush at a specific moment in time,’ . . . is therefore inapposite.” Id. Correctly stated, President

Obama and President Bush both replaced President

Washington. And voters will continue to elect new replacements for the ongoing role of the President of the

United States (the use), which can be served at different points over time by a variety of individuals with

different characteristics (alternatives).

This common understanding of the term “replace”

is ubiquitous in everyday parlance. Reportedly, the

Boston Red Sox “struggled to replace [Mo] Vaughn’s

pop in the lineup,” following the All-Star hitter’s departure from the team at the end of the 1998 season.6

The Philadelphia Phillies have “struggled to find the

long-term replacement” for right-fielder Jayson Werth

after his departure from the team in 2010. 7 And the

New York Jets “have been searching for [quarterback

Joe Namath’s] replacement ever since” he retired in

6 JOSH PAHIGIAN, THE RED SOX IN THE PLAYOFFS: A POSTSEA-

SON HISTORY, 1903–2005, at 173 (2006).

7 George Stockburger,

Phillies: Seven Years Later, Phillies

Still Haven’t Replaced Werth in Right Field, THAT BALL’S OUTTA

HERE (Jan. 30, 2017), https://tinyurl.com/y9kto3ty.

20

1976. 8 Sportswriters and fans do not view the very

next player to occupy a position as the one and only

“replacement” for an iconic player.

In the same way, manufacturers and other users

continually seek to “replace” ozone-depleting substances with high-performing alternatives that, “[t]o

the maximum extent practicable, . . . reduce overall

risks to human health and the environment.” 42

U.S.C. § 7671k(a). And Congress evidently intended

that search for replacements to be an ongoing pursuit—not a one-time event. The structure of the safe

alternatives policy—including EPA’s authority to update its lists of substitutes over time, id. § 7671k(c),

and the right of any person to petition EPA to add or

remove substances from its lists at any time, id.

§ 7671k(d)—indicate Congress’ intent to establish an

ongoing, dynamic regulatory program targeting all users of unsafe substitutes. The statute thus promotes

continuing innovation and investment in developing

safer alternatives, as Congress intended. See, e.g., id.

§ 7671k(b) (requiring that EPA “shall” recommend

broad research programs and initiatives “to promote

the development and use of safe substitutes” and

“maintain a public clearinghouse of alternative chemicals”); see also Honeywell Pet. 21. Indeed, if Congress

had intended to enact a short-lived program, it certainly knew how to do so; but Congress did not do so

here. See City of Arlington v. FCC, 569 U.S. 290, 296

(2013) (“Congress knows to speak in plain terms when

it wishes to circumscribe, and in capacious terms

8 Brian Costello, Inside the Jets’ Decades-Old Search to Re-

place Joe Namath, N.Y. POST, Oct. 28, 2014, https://tinyurl.com/y7x3nf2y.

21

when it wishes to enlarge, agency discretion.”); see also

EPA v. EME Homer City Generation, L.P., 134 S. Ct.

1584, 1601 (2014) (citing Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 341 (2005) (“We do not lightly

assume that Congress has omitted from its adopted

text requirements that it nonetheless intends to apply

. . . .”)).

The broader, common understanding of “replace” is

compelled by section 612’s text and structure and is

therefore the only interpretation that effectuates Congress’ intent. Cf. Whitman v. Am. Trucking Ass’ns,

531 U.S. 457, 471 (2001) (interpreting the text of section 109(b) of the Clean Air Act “in its statutory and

historical context and with appreciation for its importance to the [Act] as a whole”). By contrast, the

court’s narrow understanding of “replace” improperly

disregards Congress’ explicit mandate that EPA list

prohibited substitutes “for specific uses.” 42 U.S.C.

§ 7671k(c) (emphasis added). “As this Court has noted

time and time again, the Court is ‘obliged to give effect, if possible, to every word Congress used.’” Nat’l

Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 632 (2018)

(quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339

(1979)). Under the D.C. Circuit’s reading, however, at

least some manufacturers can use a dangerous or

deadly substitute even though other manufacturers

are prohibited from switching to that substitute for an

identical use. This illogical result is irreconcilable

with EPA’s mandate to prohibit “specific uses” and underscores the court’s erroneous interpretation. 42

U.S.C. § 7671k(c).

22

B.

The Court’s Reliance on EPA’s Purported Prior Interpretation Was

Wholly Misplaced.

From the inception of its SNAP Program, EPA reasonably maintained that it had authority to ban any

and all present and future uses of prohibited substances. See 40 C.F.R. § 82.174(d); see also id. § 82.172

(defining “use” broadly to include use by manufacturers, intermediate users, and end-users). “Under any

other interpretation,” EPA explained in 1994, the

agency “could never effectively prohibit the use of any

substitute, as some user could always start to use it

prior to EPA’s completion of the rulemaking required

to list it as unacceptable.” 59 Fed. Reg. at 13,048.

Congress, which sought to reduce overall environmental and health risks to the maximum extent, “could not

have intended such a result.” Id. EPA’s regulation

setting forth its longstanding ban was not before the

court below and was not vacated; indeed, the jurisdictional limitation on challenging the ban has long since

passed. 42 U.SC. § 7607(b)(1) (requiring that petitions

for judicial review of Clean Air Act regulations generally must be filed within 60 days). Perplexingly, the

court below did not acknowledge this limitation or offer any guidance on how to reconcile its directive with

EPA’s longstanding interpretation.

Instead, in partially vacating the 2015 Rule, the

court focused on other EPA statements that had no

bearing on the issue before it. As Judge Wilkins noted

in his dissent, the majority cherry-picked from the record below, taking prior agency statements out of context to support its conclusion that EPA lacks authority

to proscribe use of non-depleting substitutes for ozonedepleting substances. Honeywell Pet. App. 40a–44a.

23

But as EPA explained, the cited statements merely

clarify limitations on the scope of EPA’s reporting and

notice requirements for producers of certain substitutes under section 612(e). See 40 C.F.R. § 82.176(a);

59 Fed. Reg. at 13,052. Substitute users, by contrast,

have been subject to EPA’s ban on the use of prohibited substances since the SNAP Program’s inception.

40 C.F.R. § 82.174(d). In other words, the statements

on which the majority relied simply were irrelevant.

* * *

In the end, the court’s opinion below did not rest on

the statute’s text, structure, and purposes, in contravention of foundational principles of statutory construction. Instead, it appears the court was diverted

by a concern that EPA was attempting to misuse a

statutory scheme focused on substitutes for ozone-depleting substances. Honeywell Pet. App. 17a–19a.

The resulting interpretation lost its way, negating

Congress’ intent and displacing an expert agency’s

reasonable and longstanding interpretation of the

statute Congress charged it to implement. States

have a significant interest in ensuring that courts

faithfully interpret statutes by employing ordinary

rules of statutory construction, whatever the subject.

Because the court below did not follow these rules, resulting in an erroneous and illogical opinion that inflicts substantial harms on the Amici States and indeed the entire country, this Court should grant the

petitions for review.

CONCLUSION

The petitions for writ of certiorari should be

granted.

24

Respectfully submitted,

MAURA HEALEY

Attorney General of Massachusetts

MEGAN M. HERZOG*

Special Assistant Attorney General

CHRISTOPHE COURCHESNE

SETH SCHOFIELD

AMANDA I. MOREJON

Assistant Attorneys General

One Ashburton Place, 18th Floor

Boston, MA 02108

(617) 727-2200

megan.herzog@state.ma.us

*Counsel of Record

Counsel for Amici Curiae

July 26, 2018

25

GEORGE JEPSEN

Attorney General of

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Street, 12th Floor

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Justice Complex

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26

BARBARA D.

UNDERWOOD

Attorney General of

New York

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JR.

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Washington

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of Pennsylvania

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the District of

Columbia

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