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

Nos. 17-1703 and 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 a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

MEXICHEM FLUOR, INC. AND ARKEMA INC.

W. CAFFEY NORMAN

KEITH BRADLEY

KRISTINA V. ARIANINA

Squire Patton Boggs

(US) LLP

2550 M Street, NW

Washington, DC 20037

(202) 457-6000

Counsel for Respondent

Mexichem Fluor, Inc.

DAN HIMMELFARB

Counsel of Record

JOHN S. HAHN

ROGER W. PATRICK

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

dhimmelfarb@mayerbrown.com

WILLIAM J. HAMEL

Arkema Inc.

900 First Avenue

King of Prussia, PA 19406

Counsel for Respondent

Arkema Inc.

i

QUESTION PRESENTED

Title VI of the Clean Air Act requires the phaseout, over time, of substances that deplete stratospheric ozone. 42 U.S.C. §§ 7671-7671q. One provision of that title—Section 612—directs that these

ozone-depleting substances be replaced with safe alternatives as they are phased out. 42 U.S.C. § 7671k.

In the decision below, the District of Columbia Circuit held that Section 612 of the Clean Air Act does

not grant the Environmental Protection Agency authority to require the replacement of substances that

do not deplete stratospheric ozone. The question presented is whether that decision is correct.

ii

CORPORATE DISCLOSURE STATEMENT

Respondent Mexichem Fluor, Inc. is a Delawareincorporated company, with headquarters in St. Gabriel, Louisiana. It is an indirectly wholly owned

subsidiary of Mexichem, S.A.B. de C.V., a Mexican

publicly traded company. No publicly held corporation other than Mexichem, S.A.B. de C.V. owns 10%

or more of Mexichem Fluor, Inc.

Respondent Arkema Inc. is a Pennsylvania corporation that is headquartered in King of Prussia,

Pennsylvania. It is a wholly owned subsidiary of

Arkema Delaware, Inc. There are no publicly held

companies that own 10% or more of the stock of

Arkema Inc. However, Arkema Inc. is indirectly

owned by Arkema, S.A., a French public company.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

CORPORATE DISCLOSURE STATEMENT .......... ii

TABLE OF AUTHORITIES......................................iv

INTRODUCTION.......................................................1

STATEMENT .............................................................5

A. Statutory And Regulatory Background ..........5

B. The EPA Rule At Issue....................................7

C. The D.C. Circuit’s Decision .............................9

REASONS FOR DENYING THE PETITIONS.......11

A. The Decision Below Does Not Conflict

With Any Decision Of Any Court..................12

B. The Question Presented Is Not Sufficiently Important To Justify A Grant Of

Certiorari .......................................................13

C. The Decision Below Is Correct ......................24

CONCLUSION .........................................................30

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009)..............................................24

EPA v. EME Homer City Generation,

L.P., 134 S. Ct. 1584 (2014) .................................23

FERC v. Elec. Power Supply Ass’n,

136 S. Ct. 760 (2016)............................................23

Graham Cnty. Soil & Water

Conservation Dist. v. United States,

559 U.S. 280 (2010)..............................................26

Jam v. Int’l Finance Corp.,

138 S. Ct. 2026 (2018)..........................................13

Lorenzo v. SEC,

138 S. Ct. 2650 (2018)..........................................13

Lucia v. SEC,

138 S. Ct. 2044 (2018)..........................................13

Massachusetts v. EPA,

549 U.S. 497 (2007)..............................................23

Michigan v. EPA,

135 S. Ct. 2699 (2015)..........................................23

Util. Air Regulatory Grp. v. EPA,

134 S. Ct. 2427 (2014)..........................................23

v

TABLE OF AUTHORITIES—continued

Page(s)

Treaty Materials

Amendment to the Montreal Protocol on

Substances that Deplete the Ozone

Layer, Oct. 15, 2016, U.N. Doc.

C.N.872.2016.TREATIES-XXVII.2.f ........... passim

Montreal Protocol on Substances that

Deplete the Ozone Layer, Sept. 16,

1987, S. TREATY DOC. NO. 100-10,

1522 U.N.T.S. 29 .................................... 5, 8, 17, 18

Statutory Materials

Clean Air Act Amendments of 1990,

Pub. L. No. 101-549, tit. VI, 104

Stat. 2399 (codified at 42 U.S.C.

§§ 7671-7671q) ............................................. passim

§ 602, 42 U.S.C. § 7671a ........................................5

§§ 604-607, 42 U.S.C. §§ 7671c-7671f ...................5

§ 612, 42 U.S.C. § 7671k .............................. passim

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

§ 612(c), 42 U.S.C. § 7671k(c) ...................... passim

Toxic Substances Control Act, 15 U.S.C.

§§ 2601-2629................................................. passim

28 U.S.C. § 2101(c) ....................................................22

vi

TABLE OF AUTHORITIES—continued

Page(s)

42 U.S.C. § 7408 ........................................................15

42 U.S.C. § 7412 ........................................................15

42 U.S.C. §§ 7470-7492 .............................................15

42 U.S.C. § 7521 ........................................................15

S. 2448, 115th Cong. (2018) ............................3, 11, 18

S.B. 1013, 2017-2018 Reg. Sess.

(Cal. 2018) ............................................................18

Regulatory Materials

Exec. Order No. 13,783, 82 Fed. Reg.

16,093 (Mar. 31, 2017) ........................... 3, 9, 14, 15

EXECUTIVE OFFICE OF THE PRESIDENT,

THE PRESIDENT’S CLIMATE ACTION

PLAN 10 (2013) ............................................ passim

Protection of Stratospheric Ozone, 59

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

Protection of Stratospheric Ozone:

Change of Listing Status for Certain

Substitutes Under the Significant

New Alternatives Policy Program, 79

Fed. Reg. 46,126 (Aug. 6, 2014).........................7, 8

vii

TABLE OF AUTHORITIES—continued

Page(s)

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) ................. passim

Protection of Stratospheric Ozone:

Listing Hexafluoropropylene (HFP)

and HFP-Containing Blends as

Unacceptable Refrigerants Under

EPA’s Significant New Alternatives

Policy (SNAP) Program, 64 Fed. Reg.

3,864 (Jan. 26, 1999)..............................................7

Protection of Stratospheric Ozone:

Listing of Substitutes for OzoneDepleting Substances, 61 Fed. Reg.

54,030 (Oct. 16, 1996) ............................................7

Protection of Stratospheric Ozone: Notification of Guidance and a Stakeholder Meeting Concerning the Significant New Alternatives Policy

(SNAP) Program, 83 Fed. Reg.

18,431 (Apr. 27, 2018)....................................11, 22

Cal. Air Res. Control Bd., Prohibitions

on Use of Certain Hydrofluorocarbons in Stationary Refrigeration and

Foam End-Uses, Res. 18-14

(Mar. 23, 2018) ....................................................18

viii

TABLE OF AUTHORITIES—continued

Page(s)

Rules

Sup. Ct. R. 10(a) ........................................................12

Sup. Ct. R. 10(b) ........................................................12

Sup. Ct. R. 10(c).........................................................12

Other Materials

Judith G. Garber, Principal Deputy Assistant Secretary, Bureau of Oceans

and International Environmental

and Scientific Affairs, Remarks at

the 29th Meeting of the Parties to

the Montreal Protocol (Nov. 23,

2017) .......................................................................9

Press Release, Chemours, Chemours

Responds to EPA 2015 Ruling to

Regulate HFCs (Aug. 9, 2017) .............................19

Dustin Smith, DC appeals court strikes

down Obama-era EPA HFC regulations, CHEMWEEK.COM, Aug. 21, 2017........4, 10, 23

INTRODUCTION

This case involves Title VI of the Clean Air Act

(CAA), which is named “Stratospheric Ozone Protection.”1 That title requires that ozone-depleting substances (mainly chlorofluorocarbons (CFCs) and

hydrochlorofluorocarbons (HCFCs), which the statute calls “class I” and “class II” substances) be

phased out over time, and it instructs EPA on how to

regulate the phase-out. One provision of Title VI—

Section 612—directs the agency to ensure that ozonedepleting substances are replaced with safe alternatives as they are phased out. Since 1994, EPA has

implemented CAA § 612 through its Significant New

Alternatives Policy (SNAP) program.

Hydrofluorocarbons (HFCs), which do not deplete

stratospheric ozone, were among the first substitutes

for class I and class II substances that EPA approved

under the program. More than 20 years later, in

We refer to the three sets of parties as follows: petitioners

Honeywell International, Inc. (Honeywell), The Chemours

Company FC, LLC (Chemours), and Natural Resources Defense

Council (NRDC), which were intervenors in support of the respondent below, are “petitioners,” and petitioners Honeywell

and Chemours are “industry petitioners”; respondents Mexichem Fluor, Inc. (Mexichem) and Arkema Inc. (Arkema), which

were petitioners below, are “respondents”; and respondent Environmental Protection Agency, which was the respondent below, is “EPA” or “the agency.” “Industry Pet.” refers to the petition for certiorari filed by industry petitioners (No. 17-1703);

“NRDC Pet.” refers to the petition for certiorari filed by NRDC

(No. 18-2); and “Pet. App.” refers to the appendix to the petition

filed by industry petitioners (No. 17-1703). “Mass. Br.” refers to

the amicus curiae brief filed by Massachusetts et al.; “Carrier

Br.” refers to the amicus curiae brief filed by Carrier Corporation et al.; and “Daikin Br.” refers to the amicus curiae brief

filed by Daikin U.S. Corporation.

1

2

2015, the agency issued a SNAP rule that banned

HFCs in a variety of uses. This was the first time

EPA had used CAA § 612 to require, not that ozonedepleting substances be replaced with other substances, but that their non-ozone-depleting replacements be replaced. Respondents, which manufacture

HFCs, challenged the rule in the D.C. Circuit, arguing that Congress did not authorize the agency to use

the SNAP program for this purpose. Petitioners, an

environmental group and two companies that manufacture replacements for HFCs (mainly hydrofluoroolefins (HFOs)), intervened in support of the rule.

In an opinion by Judge Kavanaugh, the court of

appeals agreed with respondents and vacated the

rule in part. Petitioners now ask this Court to review

the D.C. Circuit’s decision. The petitions should be

denied.

First and foremost, the decision below does not

conflict with any decision of this Court, of another

federal court of appeals, or of a state court of last resort. On the contrary, it is the first and only decision

of any court to address the narrow question whether

EPA may use the SNAP program to order the replacement of substances that do not deplete stratospheric ozone. The petitions thus fail to satisfy the

most basic criterion for Supreme Court review.

Particularly given the absence of a conflict, this

case is not nearly important enough to warrant a

place on this Court’s merits docket. That is true for a

host of reasons, among which are the following:

• Far from presenting a separation-of-powers or

other constitutional question of extraordinary

importance, the case involves an ordinary

question of administrative law that the D.C.

3

Circuit confronts virtually every day: whether

a particular agency action is authorized by the

governing statute.

• Although one would not know it from reading

the petitions, an Executive Order issued while

this case was pending in the D.C. Circuit requires EPA to take appropriate action to suspend, revise, or rescind the rule in question—

even if, as petitioners maintain, there was

statutory authority to issue it. Petitioners thus

are likely to be in the same position regardless

of how this litigation ends.

• The D.C. Circuit’s decision does not prevent

EPA from regulating HFCs in particular or

non-ozone-depleting substances in general. As

the decision below explains, and as EPA made

clear when it issued the initial SNAP rule in

1994, there are other statutory mechanisms—

including the Toxic Substances Control Act

(TSCA) and different provisions of the CAA—

for regulating non-ozone-depleting chemicals

that have already replaced class I and class II

chemicals. Petitioners have never disputed

this point, which refutes their overblown

claims of imminent environmental disaster. In

addition to these existing statutory devices,

the 2016 Kigali Amendment to the Montreal

Protocol on Substances that Deplete the Ozone

Layer and a bipartisan 2018 Senate bill address the phase-down of HFCs.

• The D.C. Circuit’s decision also does not prevent industry petitioners from selling their

HFO products. And, contrary to petitioners’

contention, it will not stifle innovation. Various companies (including industry petitioners

4

and respondents) developed products (including HFOs) to compete with HFCs years before

EPA decided to use the SNAP program to ban

previously approved substances, so the ban

could not have been the motivation for their

development. Industry petitioners are rentseekers attempting to use government regulation, not to create new products, but to foreclose existing products of competitors.

• Consistent with the above, and despite having

lost the case, EPA did not petition for rehearing in the D.C. Circuit and has not petitioned

for certiorari in this Court. It appears, instead,

that the agency will oppose the petitions for

certiorari. Indeed, shortly after the court of

appeals issued the decision below, an EPA

spokesperson indicated that the agency agrees

with the decision.

• Petitioners did petition for en banc rehearing,

but—also consistent with the above—the D.C.

Circuit denied it without a single recorded dissent.

Finally, the D.C. Circuit’s decision is correct. The

statute provides that “class I and class II substances

shall be replaced” with safe alternatives and requires

EPA to promulgate rules making it unlawful “to replace any class I or class II substance” with a prohibited substance. 42 U.S.C. § 7671k(a), (c). Yet the rule

in question directed companies to replace replacements for class I and class II substances. Petitioners

insist that Section 612 authorized EPA to order the

replacement of a first-generation non-ozone-depleting substance with a second-generation non-ozonedepleting substance in 2015 on the theory that, in doing so, the agency was ordering the replacement of

5

the original class I or class II substance. Yet the

same theory would allow the agency to use the SNAP

program to order the replacement of an eleventhgeneration non-ozone-depleting substance with a

twelfth-generation non-ozone-depleting substance in

2115. The fact that ozone-depleting substances were

once used in a particular product would mean that

EPA could, under CAA § 612, regulate the chemicals

used in that product forever. As the court of appeals

understandably concluded, this interpretation—of a

statute trained on reducing ozone depletion—“borders on the absurd.” Pet. App. 15a. SNAP is a limited

program, not a limitless one.

STATEMENT

A. Statutory And Regulatory Background

In the Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, S. TREATY

DOC. NO. 100-10, 1522 U.N.T.S. 29, the United

States and other nations agreed to phase out the

production and consumption of ozone-depleting substances. The United States meets its obligations under the Protocol through Title VI of the CAA, entitled

“Stratospheric Ozone Protection.” Clean Air Act

Amendments of 1990, Pub. L. No. 101-549, tit. VI,

104 Stat. 2399. In Title VI, Congress divided ozonedepleting substances into “class I” substances (mainly CFCs) and “class II” substances (HCFCs); set

timetables for eliminating them; and directed EPA to

create market-based cap-and-trade systems for controlling them. 42 U.S.C. §§ 7671a, 7671c-7671f.

Substitutes, the subject of this case, are addressed in CAA § 612, which is meant to ensure that

ozone-depleting substances are replaced with safe alternatives as they are phased out. Section 612 begins

6

with this statement of policy in subsection (a): “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). Subsection (c) in

turn requires EPA to promulgate rules making it

“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,” when the agency “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.” Id. § 7671k(c). The same subsection calls

for the agency to publish a list of “substitutes prohibited” and “safe alternatives” for “specific uses.” Id.

To implement Section 612(c), EPA promulgated

its initial SNAP rule in 1994. Protection of Stratospheric Ozone, 59 Fed. Reg. 13,044 (Mar. 18, 1994).

That rule contained the first list of acceptable substitutes for ozone-depleting substances, including HFCs

in a variety of sectors. Id. at 13,067-13,120. The initial rule also “clarified” that “SNAP addresses only

those substitutes or alternatives actually replacing

the class I and II compounds.” Id. at 13,050. The rule

provided an example of how this would work:

[I]f 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., HCFC-22), 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

7

because the first-generation alternative did

not deplete stratospheric ozone.

Id. at 13,052. The “key” is what the substance “is designed to replace.” Id. For “second-generation” substitutes, the agency explained, “[o]ther regulatory

programs (e.g., other sections of the CAA, or section

6 of TSCA) exist to ensure protection of human

health and the environment.” Id. Consistent with

this view, EPA had never used the SNAP program to

change the status of a non-ozone-depleting substitute

until it promulgated the rule at issue in this case.

See Pet. App. 3a, 6a, 12a-13a & n.3.2

B. The EPA Rule At Issue

In June 2013, President Obama released his

Climate Action Plan, which (among other things) described HFC emissions as a climate-change threat

and announced that EPA would “use its authority

through the [SNAP] Program” to reduce them. EXECUTIVE OFFICE OF THE PRESIDENT, THE PRESIDENT’S

CLIMATE ACTION PLAN 10 (2013). In August 2014 the

agency issued a proposed rule, and in July 2015 a final rule, that for the first time did just that. ProtecTo the extent that NRDC suggests that EPA de-listed nonozone-depleting substances in 1996 and 1999 (NRDC Pet. 1112), it is mistaken. The 1996 decision was “on the acceptability

of * * * substitutes not previously reviewed by the Agency.” Protection of Stratospheric Ozone: Listing of Substitutes for OzoneDepleting Substances, 61 Fed. Reg. 54,030, 54,030 (Oct. 16,

1996). The same is true of the 1999 decision. See Protection of

Stratospheric Ozone: Listing Hexafluoropropylene (HFP) and

HFP-Containing Blends as Unacceptable Refrigerants Under

EPA’s Significant New Alternatives Policy (SNAP) Program, 64

Fed. Reg. 3,864, 3,867 (Jan. 26, 1999) (“HFP has not historically

been used in refrigeration equipment”).

2

8

tion of Stratospheric Ozone: Change of Listing Status

for Certain Substitutes Under the Significant New

Alternatives Policy Program, 79 Fed. Reg. 46,126

(Aug. 6, 2014) (proposed rule); 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)

(final rule). The rule “primarily recognizes [this] call”

in the Climate Action Plan (79 Fed. Reg. at 46,134)

and is “consistent with [that] provision” of the Plan

(80 Fed. Reg. at 42,880).

The final rule reclassified 38 individual HFCs or

HFC blends as unacceptable for 25 uses. See C.A.

J.A. 793-795; Pet. App. 8a. In each such use, class I

and class II substances had already been either completely or nearly completely eliminated. See 80 Fed.

Reg. at 42,888; C.A. J.A. 180, 528; Mexichem/Arkema

C.A. Br. 20-21; Pet. App. 7a, 10a-11a; Industry Pet.

15.

In September 2015, respondents Mexichem and

Arkema, which manufacture HFCs, filed consolidated petitions for review in the D.C. Circuit, arguing

primarily that Title VI of the CAA does not authorize

EPA to use the SNAP program to require the replacement of non-ozone-depleting substances like

HFCs. Petitioners Honeywell and Chemours, which

manufacture replacements for HFCs, intervened in

support of the final rule. So did petitioner NRDC.

In October 2016, while this case was pending,

197 countries adopted an amendment to the Montreal Protocol in Kigali, Rwanda, that phases down

HFCs in a manner similar to that in which CFCs and

HCFCs have been phased down under the Protocol.

Amendment to the Montreal Protocol on Substances

9

that Deplete the Ozone Layer, Oct. 15, 2016, U.N.

Doc. C.N.872.2016.TREATIES-XXVII.2.f. Although

the United States has not yet ratified the Kigali

Amendment, in November 2017 a senior State Department official announced that “the process to consider U.S. ratification of the Amendment” had been

“initiated.” Judith G. Garber, Principal Deputy Assistant Secretary, Bureau of Oceans and International Environmental and Scientific Affairs, Remarks at the 29th Meeting of the Parties to the Montreal Protocol (Nov. 23, 2017), https://www.state.gov/

e/oes/rls/remarks/2017/275874.htm.

Meanwhile, in March 2017, with this case still

pending in the D.C. Circuit, President Trump issued

his Executive Order on Promoting Energy Independence and Economic Growth. Exec. Order No. 13,783,

82 Fed. Reg. 16,093 (Mar. 31, 2017). The Executive

Order “rescind[s]” President Obama’s Climate Action

Plan. Id. at 16,094. It also directs the “heads of all

agencies” to identify existing agency actions “related

to or arising from” the Plan and, “as soon as practicable,” to “suspend, revise, or rescind,” or “publish for

notice and comment proposed rules suspending, revising, or rescinding,” any such actions, “as appropriate and consistent with law and with the policies”

set forth elsewhere in the Order. Id.

C. The D.C. Circuit’s Decision

On August 8, 2017, the D.C. Circuit granted respondents’ petitions for review and vacated the final

rule insofar as it requires manufacturers and other

regulated parties to replace HFCs. Pet. App. 1a-46a.

Judge Kavanaugh wrote the court’s opinion. Id. at

2a-26a.

10

After analyzing the text and legislative history of

CAA § 612, and considering the consequences of

EPA’s then-current interpretation of the statute, the

court of appeals concluded that, while the agency

may de-list HFCs, “EPA’s authority to regulate

ozone-depleting substances under Section 612 * * *

does not give [it] authority to order the replacement

of substances that are not ozone depleting.” Pet. App.

17a; see id. at 13a-16a. In so holding, the court emphasized that the agency continues to have “authority under Section 612(c) to prohibit any manufacturers that still use ozone-depleting substances * * *

from deciding in the future to replace those substances with HFCs” and that EPA “possesses other

statutory authorities * * * to directly regulate nonozone-depleting substances” that are already in use,

including TSCA and different provisions of the CAA.

Id. at 16a-17a. The court of appeals also left open the

possibility that the entire rule could be sustained

under an “alternative theory”—what the court called

a “retroactive disapproval” theory—that the agency

was free to consider on remand. Id. at 19a; see id. at

19a-22a. Finally, the court rejected respondents’

claim that, even if EPA may use the SNAP program

to ban HFCs, it did so in an arbitrary and capricious

way. Id. at 22a-25a.

Judge Wilkins disagreed with the court of appeals’ interpretation of the statute and dissented in

relevant part. Pet. App. 27a-46a.

Soon after the D.C. Circuit decided this case, an

EPA spokesperson was quoted as saying that the

court’s decision “underscores [the] fundamental principle” that “EPA must possess statutory authority for

the rules and regulations that we seek to issue.”

11

Dustin Smith, DC appeals court strikes down

Obama-era EPA HFC regulations, CHEMWEEK.COM,

Aug. 21, 2017. Consistent with that statement, EPA

did not file a petition for rehearing in the court of

appeals. Petitioners did petition for rehearing but, on

January 26, 2018, the D.C. Circuit denied rehearing

en banc without any recorded dissent. Pet. App. 47a48a.

On February 15, 2018, a bipartisan group led by

Senators Kennedy and Carper introduced a bill that

requires the phase-down of HFCs consistent with the

Kigali Amendment to the Montreal Protocol and subject to certain other requirements. S. 2448, 115th

Cong. (2018).

On April 27, 2018, EPA published a guidance

document that, among other things, “provides the

Agency’s plan to begin a notice-and-comment rulemaking process to address the [D.C. Circuit’s] remand of the 2015 Rule.” Protection of Stratospheric

Ozone: Notification of Guidance and a Stakeholder

Meeting Concerning the Significant New Alternatives Policy (SNAP) Program, 83 Fed. Reg. 18,431,

18,431 (Apr. 27, 2018); see id. at 18,435-18,436.

REASONS FOR DENYING THE PETITIONS

Petitioners ask this Court to review the D.C. Circuit’s holding that EPA cannot use the SNAP program to require the replacement of substances that

do not deplete stratospheric ozone. The court of appeals’ decision does not conflict with the decision of

any other court. The question presented is not important enough to justify a grant of certiorari. And

the decision below is correct. Further review is unwarranted.

12

A. The Decision Below Does Not Conflict

With Any Decision Of Any Court

The D.C. Circuit’s decision does not conflict with

any decision of any other court of appeals or any

state court of last resort. See Sup. Ct. R. 10(a). Nor

does it conflict with any decision of this Court. See

Sup. Ct. R. 10(c). Petitioners do not and cannot contend that there is any such conflict, for the very good

reason that this is the first and only case in which

any court at any level has addressed the narrow

question whether EPA can use the SNAP program to

require the replacement of non-ozone-depleting substances.

Except in rare circumstances, this Court exercises

its certiorari jurisdiction to ensure that federal law is

uniform. Federal law on the question presented in

the petitions is already uniform. There is no need for

the Court to grant certiorari in this case of first impression just to take a second look at the unique legal issues that were thoroughly considered and addressed by the court of appeals.

Petitioners point out that the D.C. Circuit has exclusive jurisdiction over this type of challenge to EPA

action and that a circuit conflict therefore cannot develop. Industry Pet. 31; NRDC Pet. 23. We do not

maintain, of course, that this Court never reviews a

decision of the D.C. Circuit that does not conflict

with a decision of another court. We maintain only

what petitioners cannot deny: that, in the absence of

a conflict, there must be especially compelling reasons for a grant of certiorari—something that ordinarily requires the question presented to be “important” even when there is a conflict. Sup. Ct. R.

13

10(a), (b), (c). As explained below, this case does not

come close to satisfying that standard.

B. The Question Presented Is Not Sufficiently Important To Justify A Grant Of

Certiorari

Lacking any decisional conflict, petitioners attempt to persuade the Court that this case is the rarest of the rare: one in which certiorari should be

granted despite the absence of a conflict because of

the exceptional importance of the question presented. The question presented is not exceptionally important. Far from it.

1. As an initial matter, this case does not involve

any separation-of-powers or other constitutional

question of surpassing importance—as was true, for

example, in a recent case from the D.C. Circuit in

which this Court granted certiorari. See Lucia v.

SEC, 138 S. Ct. 2044 (2018) (whether SEC administrative law judges are officers of the United States

within meaning of Appointments Clause). (It bears

mention that there was also a circuit conflict in that

case—as there was, not surprisingly, in the two other

most recent D.C. Circuit cases in which this Court

granted review, see Jam v. Int’l Finance Corp., 138

S. Ct. 2026 (2018); Lorenzo v. SEC, 138 S. Ct. 2650

(2018).) Instead, as the court of appeals put it, this

case involves the kind of “statutory interpretation issue that arises again and again” in the D.C. Circuit:

“whether an * * * agency has statutory authority

from Congress to issue a particular regulation.” Pet.

App. 2a. In that respect, this is an ordinary case, not

an extraordinary one.

2. There is another reason why the question presented is not sufficiently important to justify a grant

14

of certiorari. The EPA rule that petitioners defend

was promulgated pursuant to President Obama’s

2013 Climate Action Plan. President Trump’s 2017

Executive Order “rescind[s]” the Climate Action

Plan. 82 Fed. Reg. at 16,094. It also directs agency

heads to identify existing agency actions “related to

or arising from” the Plan and to “suspend, revise, or

rescind,” or “publish for notice and comment proposed rules suspending, revising, or rescinding,” any

such actions, “as appropriate and consistent with law

and with the policies” described in the Order. Id.

The Executive Order thus directs EPA to take

appropriate steps to suspend, revise, or rescind the

rule at issue here, which both is “related to” and

“arises from” the Climate Action Plan. This fact, by

itself, is a reason to deny certiorari. The Court

should not grant review to decide whether to reinstate a rule that the President has directed EPA to

reconsider—an obligation that would bind the agency

even if, as petitioners maintain, EPA had statutory

authority to issue the rule.

The Executive Order was featured prominently

in the briefing at the petition-for-rehearing stage in

the D.C. Circuit, and may have been one of the reasons why that court denied rehearing. Remarkably,

neither petition for certiorari even mentions the Executive Order, let alone attempts to explain why this

Court should grant review in spite of it.

3. Industry petitioners instead insist that the

question presented is exceptionally important because the D.C. Circuit’s decision “increases the likelihood of disastrous climate impacts from global

warming” assertedly caused by HFCs and “restricts

EPA from addressing other health and safety risks

15

from [other] non-ozone-depleting substitutes.” Industry Pet. 23, 26. In a similar vein, NRDC warns that

this Court’s intervention is necessary because the

decision below will “worsen the impacts of climate

change” and leave “millions of Americans at risk

from toxic, flammable, climate-changing, or otherwise harmful chemicals in products they use every

day.” NRDC Pet. 5, 21.

These contentions are dramatic but specious.

Under President Trump’s Executive Order, the rule

the D.C. Circuit vacated in part is slated to be reconsidered regardless of whether that decision stands.

In any event, the court of appeals did not hold that

EPA may not ban HFCs or other non-ozone-depleting

substances; it held only that the agency may not use

the SNAP program to ban HFCs or other non-ozonedepleting substances that have already replaced

ozone-depleting substances. As the court explained:

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.

Pet. App. 17a.

The availability of these other, “expansive,” statutory authorities shows that the decision below will

16

not prevent EPA from protecting human health and

the environment. Petitioners’ responses to this critical point—which appear in a footnote in NRDC’s petition and on the last page of industry petitioners’—

seem little more than an afterthought. They argue

(1) that, even if the other laws can be used “for this

purpose,” there is “no reason to discard Section 612”

(NRDC Pet. 29 n.8); (2) that the court of appeals

“provided no support for its assertion that these other pathways are viable” (Industry Pet. 36; see also

NRDC Pet. 29 n.8); and (3) that the other statutory

authorities are not “practical for industry” because

regulation under Section 612 is the only way to prohibit the use of HFCs “based on comparative risks”

(Industry Pet. 36).

Petitioners’ responses are as meritless as they

are perfunctory. The first begs the question presented—and effectively concedes that there are other

mechanisms for regulating HFCs. The second is ironic, given that petitioners have never shown—or even

attempted to show—that the other options are not

viable. EPA itself recognized that they are, when it

promulgated the initial SNAP rule in 1994. See 59

Fed. Reg. at 13,052 (for “second-generation” substitutes, “[o]ther regulatory programs (e.g., other sections of the CAA, or section 6 of TSCA) exist to ensure protection of human health and the environment”). And the third is an ipse dixit, failing as it

does to offer any explanation why “industry” needs a

“comparative risk regime” to address “these problems.” Industry Pet. 36.

The D.C. Circuit also emphasized that HFCs can

be restricted, not only through other statutory regimes, but through the SNAP program itself, so long

as it is ozone-depleting substances that are being re-

17

placed. See Pet. App. 16a (“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.”); see

also id. at 17a (“EPA still has statutory authority to

require product manufacturers to replace substitutes

that (unlike HFCs) are themselves ozone depleting.”). The court of appeals even left open the possibility that the rule at issue could be justified in its

entirety on another ground (id. at 19a-22a) and gave

EPA the opportunity “to pursue this ‘retroactive disapproval’ approach” on remand (id. at 20a). Finally,

the court held that, insofar as the rule is statutorily

authorized in part, it is not arbitrary and capricious—rejecting each and every one of respondents’

arguments on this point. Id. at 22a-25a. As petitioners acknowledge, the D.C. Circuit thus “unanimously

concluded that § 612 allows EPA to consider the

risks of climate change” (Industry Pet. 12) and

“unanimously upheld EPA’s authority under Section

612(c) to move HFCs from the acceptable list to the

unacceptable list” on that basis (NRDC Pet. 16).

Besides these existing laws, there are other legal

devices that would give EPA specific authority to

regulate and ultimately ban HFCs—devices that, unlike Section 612 of the CAA, are indisputably intended to do that job. In 2016, well after EPA promulgated its SNAP rule, the international community

amended the Montreal Protocol in Kigali to require a

global phase-down of HFCs. That holistic approach—

which respondents support—will alleviate the “urgent” and “alarming” worldwide environmental consequences that petitioners fear (NRDC Pet. 21; Industry Pet. 5), quite apart from any SNAP rule that

could ban particular chemicals in specific sectors in

18

the United States. The 2018 Kennedy-Carper bill

likewise calls for HFCs to be phased down in the way

that ozone-depleting substances have been successfully phased down under the Montreal Protocol.

Industry petitioners do not mention either the

treaty amendment or the Senate bill. And while

NRDC does acknowledge the Kigali Amendment, it

says only that “EPA’s authority to prohibit specific

uses of HFCs * * * in * * * Section 612” is “independent of the amendment.” NRDC Pet. 15 n.6. As with

its position on the other statutes, this response both

begs the interpretive question presented here and

recognizes that there are other ways to regulate

HFCs.

For their part, amici states completely ignore

both the other existing authorities and the additional

ones that are under consideration. On top of all these

federal laws, there are—as their brief acknowledges—numerous state mechanisms for regulating

HFCs. See Mass. Br. 5-6, 16-17 & nn. 4-5; see also

Amici Cal. et al. C.A. Br. 6-9 & nn. 4-6. Indeed, in response to the D.C. Circuit’s decision in this very case,

California took administrative action to preserve

some of the HFC bans (Cal. Air Res. Control Bd.,

Prohibitions on Use of Certain Hydrofluorocarbons in

Stationary Refrigeration and Foam End-Uses, Res.

18-14 (Mar. 23, 2018)), while its legislature is considering a measure to further align California law with

the federal SNAP rule that was partially vacated

(S.B. 1013, 2017-2018 Reg. Sess. (Cal. 2018)).

4. Industry petitioners also contend that this

Court’s review is needed because the D.C. Circuit’s

decision “eviscerates incentives to engage in * * * research and development of safer alternatives.” Industry Pet. 22; see id. at 21-23. NRDC echoes this

19

view. NRDC Pet. 5, 20, 22. Petitioners’ charge of stifled innovation is as overwrought as their claim of

impending environmental catastrophe, and it is just

as spurious.

To begin with, petitioners’ argument about “incentives” rests on the premise that the court of appeals’ decision prevents EPA from regulating HFCs

and other non-ozone-depleting substances. As explained above, it does not. But the conclusion would

not follow even if the premise were correct. For industry petitioners claim to have developed a superior

product to replace HFCs that customers already

were adopting without a ban on HFCs. See, e.g.,

Honeywell/Chemours C.A. Br. 17 (“even before the

Final Rule was issued, industry transitioned [to]

HFOs for important uses”). Their argument masks

their true interest in this case, which is to have government choose market winners and losers, suppressing competition.

The court of appeals’ decision does not prevent

industry petitioners (or anyone else) from manufacturing and selling their HFO products today; it just

prevents them from doing so without competition

from manufacturers and sellers of other products.

There is thus no basis for their histrionic assertion

that the decision below “upend[s] over a billion dollars in * * * investments.” Industry Pet. 3. Indeed,

after the D.C. Circuit issued its decision, petitioner

Chemours announced that it expected the automotive sector to continue transitioning to its HFO.

Press Release, Chemours, Chemours Responds to

EPA 2015 Ruling to Regulate HFCs (Aug. 9, 2017),

https://investors.chemours.com/news-releases/newsreleases-details/2017/Chemours-Responds-to-EPA2015-Ruling-to-Regulate-HFCs/default.aspx.

20

Much the same can be said about industry petitioners’ invocation of “reliance” interests—and, in

particular, their claims that they “made these investments in reliance on § 612 and the SNAP program” and that the decision below “prejudices companies that invested and structured their activities

in reliance on SNAP.” Industry Pet. 22; accord NRDC

Pet. 22. Industry petitioners could not have “relied”

on the rule the court of appeals vacated in part, because they developed their products long before 2015,

when the rule was issued—and indeed long before

2013, when President Obama’s Climate Action Plan

was released. See, e.g., Industry Pet. 10-11. Nor

could they have reasonably “relied” on the agency’s

adopting such a rule in the future, because, as the

court of appeals put it, EPA had never before “sought

to order the replacement of a non-ozone-depleting

substitute that had previously been deemed acceptable by the agency” (Pet. App. 13a)—and indeed had

explicitly stated that it “did not possess authority

under Section 612(c) to require the replacement of

non-ozone-depleting substances” (id. at 12a). EPA

adopted its “new interpretation” in 2015 “[f]or the

first time.” Id. at 13a.

What we have just said also disproves amici

states’ claim that they “relied” on the SNAP program

as a “floor” in regulating HFCs and other non-ozonedepleting substances under state law. Mass. Br. 1-2,

5-8. It likewise refutes amici equipment manufacturers’ assertion that they “relied” on the program in

developing equipment that accommodates HFC substitutes. Carrier Br. 1-2, 4-6, 8-9, 16-21, 23-24; Daikin Br. 2-3, 6, 8-10. It bears emphasis, too, that the

D.C. Circuit’s decision does not prevent the use of

such equipment any more than it prevents the pro-

21

duction and sale of the HFC replacements themselves.

One final point in this connection. In the course

of making their arguments about “incentives” and

“reliance,” industry petitioners say that their “nonU.S. competitors” have “continued to make older, less

safe products” and that the D.C. Circuit’s decision

gives an advantage to “cheap foreign substitutes.”

Industry Pet. 4, 22. To the extent that the “non-U.S.”

companies and “foreign” products to which they refer

are meant to include respondents and the HFCs respondents manufacture, industry petitioners are

mistaken. Respondents are not foreign companies,

and they manufacture HFCs in the United States.3

Nor is it true, as industry petitioners assert, that respondents “have not developed and do not produce

HFC alternatives.” Id. at 11-12. Meanwhile, industry

petitioners continue to sell the “less-safe substitutes”

(id. at 15) they claim to deplore.

5. Industry petitioners also maintain that the decision below has created “confusion” and “uncertainty” (Industry Pet. 28, 30) by virtue of “the distinction

the D.C. Circuit drew between manufacturers who

have and have not stopped using ozone-depleting

chemicals” (id. at 27). Accord NRDC Pet. 21-22. It

would be more accurate to say that this “distinction”

was drawn by Congress, when it enacted Section 612

3 Although Mexichem’s stock is directly or indirectly owned by a

Mexican company, and Arkema’s is indirectly owned by a

French company, each respondent is incorporated and headquartered in the United States. Between them, moreover, respondents have dozens of facilities and thousands of employees

in this country. Mexichem and Arkema manufacture HFCs in

Louisiana and Kentucky, respectively.

22

of the CAA, and that any “confusion” or “uncertainty”

is a result of EPA’s attempt to use the SNAP program to ban non-ozone-depleting substitutes that are

already widely used. In any case, as EPA’s April

2018 guidance document makes clear, this issue and

others will be considered in a notice-and-comment

rulemaking that addresses the legal defects in the

2015 rule identified in the court of appeals’ decision.

See 83 Fed. Reg. at 18,435-18,436. Petitioners will

have an opportunity to submit comments on the proposed rule to the agency and to challenge the final

rule in court if there is a basis for doing so.

Industry petitioners are unhappy with the

statement in the guidance that “EPA will not apply

the HFC use restrictions or unacceptability listings

in the 2015 Rule for any purpose prior to completion

of rulemaking.” 83 Fed. Reg. at 18,433; see Industry

Pet. 29-30. But the fact that EPA is implementing

the decision below in a manner that industry petitioners dislike hardly demonstrates a need for review

of the decision itself.

Finally, industry petitioners complain that the

rulemaking will leave regulated entities “in limbo”

and that “this Court’s review could obviate the need

for such rulemaking in the first place.” Industry Pet.

30. But petitioners did not seek a stay of the court of

appeals’ mandate, either in the D.C. Circuit or in

this Court, and the case accordingly returned to the

agency. Petitioners then sought and obtained a 60day extension of time within which to file their petitions for certiorari, the maximum allowable. See 28

U.S.C. § 2101(c). On that schedule, this Court likely

would not decide this case on the merits before

Spring 2019, at the earliest, if it were to grant certiorari. So the “delay” petitioners are protesting (Indus-

23

try Pet. 30) is at least in part a result of their own

actions and inactions.

6. Consistent with all of the above, EPA—the

agency that administers the SNAP program, that issued the rule in question, that was the respondent in

the court of appeals, and that was the losing party

there—did not petition the D.C. Circuit for panel or

en banc rehearing. Nor has EPA filed a petition for

certiorari in this Court; it appears, instead, that it

will file a brief in opposition to petitioners’ certiorari

petitions. Indeed, shortly after the court of appeals

decided this case, an EPA spokesperson indicated

that the agency believes the decision to be correct.

See Smith, supra. It would be quite unusual for this

Court to grant review in these circumstances.

Petitioners studiously ignore this proverbial elephant in the room—or rather this elephant that is

not in the room. But the fact that EPA is not a petitioner here, and that it apparently will oppose the

petitions for certiorari despite having lost below, is

one of the many features that distinguishes this case

from the cases that petitioners cite (Industry Pet 31;

NRDC Pet. 23). In all but one of those cases, EPA (or

another federal agency) either lost in the D.C. Circuit and petitioned for certiorari or opposed certiorari after winning below. See FERC v. Elec. Power

Sup-ply Ass’n, 136 S. Ct. 760 (2016); Michigan v.

EPA, 135 S. Ct. 2699 (2015); Util. Air Regulatory

Grp. v. EPA, 134 S. Ct. 2427 (2014); EPA v. EME

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

Massachusetts v. EPA, 549 U.S. 497 (2007).4

4 In the other case cited by petitioners, the federal government

opposed certiorari after losing in the Second Circuit, but it apprised the Court that the decision below “is incorrect in im-

24

Unlike EPA, petitioners did petition for rehearing in the D.C. Circuit. But—also consistent with the

above—the court of appeals denied rehearing en

banc without a single recorded dissent. Like EPA’s

decision not to seek further review, the apparent

unanimity of the decision not to rehear the case en

banc, issued by a court of appeals whose members

confront issues of the kind presented here almost

daily and certainly know an exceptionally important

question when they see one, is difficult to reconcile

with the alarmist rhetoric that pervades the petitions for certiorari—and pervaded the petitions for

rehearing en banc.

C. The Decision Below Is Correct

Petitioners also contend that the D.C. Circuit’s

interpretation of CAA § 612 is incorrect. Industry

Pet. 31-36; NRDC Pet. 23-32. Especially in light of

what we have shown above, that would not be a basis

for certiorari even if petitioners’ position had merit.

And it does not.

1. The court of appeals correctly found that EPA

“tried to jam a square peg (regulating non-ozonedepleting substances that may contribute to climate

change) into a round hole (the existing statutory

landscape).” Pet. App. 18a. CAA § 612 addresses the

“replace[ment]” of “class I and class II substances.”

42 U.S.C. § 7671k(a), (c). In holding that “EPA’s auportant respects”; that the decision “has great potential practical importance”; and that the government “would support reversal in the event that certiorari were granted.” Br. for Fed.

Resps. in Opp. at 25, Entergy Corp. v. Riverkeeper, Inc., 556

U.S. 208 (2009) (Nos. 07-588, 07-589, and 07-597), 2008 WL

582490, at *25. Unlike in this case, moreover, the petitioners in

that case asserted the existence of multiple circuit conflicts. See

id. at 9, 13, 20-24, 2008 WL 582490, at *9, *13, *20-24.

25

thority to regulate ozone-depleting substances under

Section 612 * * * does not give [it] authority to order

the replacement of substances that are not ozone depleting” (Pet. App. 17a), the D.C. Circuit carefully

analyzed the statutory text and legislative history,

and appropriately took into account the consequences of a contrary interpretation.

As to the statutory text:

In common parlance, the word “replace” refers to a new thing taking the place of the

old. * * * [M]anufacturers “replace” an ozonedepleting 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.

Pet. App. 14a.

As to the legislative history:

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. In other words, the Senate bill would

have granted EPA authority to require the

replacement of non-ozone-depleting substances such as HFCs. But the Conference Committee did not accept the Senate’s version of

Title VI. Instead, the Conference Committee

adopted the House’s narrower focus on ozonedepleting substances.

26

Pet. App. 15a-16a (citations omitted).

As to the consequences of a contrary interpretation:

Under EPA’s [then-]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.

Pet. App. 15a.

2. Petitioners offer no persuasive response to the

D.C. Circuit’s reasoning. They contend, for example,

that the court’s interpretation of the term “replace”

in Section 612 is not the only possible one. Industry

Pet. 32-34; NRDC Pet. 25-26. But “statutory language has meaning only in context.” Graham Cnty.

Soil & Water Conservation Dist. v. United States, 559

U.S. 280, 289 (2010) (internal quotation marks and

brackets omitted). Whatever “replace” might mean in

other contexts, in this context no one employing ordinary English usage would say that, when a company

switches from HCFCs to HFCs, and then years later

switches from HFCs to HFOs, it is “replacing” the

HCFCs with the HFOs. Anyone using ordinary English would say that the HFOs are “replacing” the

HFCs.

Petitioners also argue that the decision below is

inconsistent with Section 612(a), which states that,

“[t]o the maximum extent practicable, class I and

class II substances shall be replaced by chemicals

* * * that reduce overall risks to human health and

27

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

petitioners, the court of appeals has prevented EPA

from reducing overall risks to human health and the

environment “to the maximum extent practicable.”

Industry Pet. 34-35; NRDC Pet. 27-28. This argument reflects a fundamental misunderstanding of

the statute. The directive in CAA § 612(a) is not to

“reduce overall risks to human health and the environment” whenever and however EPA chooses; it is,

as the statute plainly states, to “replace[]” “class I

and class II substances” with chemicals that “reduce

overall risks to human health and the environment.”

42 U.S.C. § 7671k(a). Petitioners would read one of

the two essential elements out of the statute, transforming a limited program into a limitless one.

In a related “purpose”-based argument, petitioners maintain that the D.C. Circuit’s decision “leave[s]

EPA powerless to respond to new data on previously

unknown or underestimated risks” (NRDC Pet. 28)

and “permit[s] * * * the * * * 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” (Industry Pet. 35). That of

course is untrue, because the agency has numerous

means of regulating HFCs outside the SNAP program. This point was emphasized by the D.C. Circuit

(Pet. App. 17a), and petitioners do not seriously dispute it (see Point B.3, supra). Indeed, the availability

of these other, “expansive,” mechanisms for regulating and ultimately banning non-ozone-depleting substances (Pet. App. 17a) is further proof that Congress

did not intend CAA § 612 to have the boundless

scope that petitioners ascribe to it.

NRDC also insists that petitioners’ interpretation is more consistent with the “statutory context

28

and structure.” NRDC Pet. 26. NRDC ignores, however, the most compelling contextual and structural

evidence, which is that Section 612 is found in a title

of the CAA whose name is “Stratospheric Ozone Protection,” whose principal object is the phase-out of

substances that deplete stratospheric ozone, and

whose unmistakable focus throughout is on ozonedepleting substances. This is hard to square with petitioners’ position that CAA § 612 authorizes EPA to

create an ongoing general regulatory regime to approve or disapprove any substance used for a purpose

for which an ozone-depleting substance was once

used, no matter how long ago. Petitioners would convert Section 612 into a sort of miniature TSCA, divorced from the regulation of ozone-depleting substances that Title VI addresses.

NRDC next asserts that the D.C. Circuit’s interpretation has “illogical and perverse” consequences.

NRDC Pet. 31. But it is petitioners’ reading of Section 612—a provision intended to ensure that ozonedepleting substances are replaced with safe alternatives as they are phased out—that leads to the most

illogical and perverse result. For if Section 612 authorized EPA to order the replacement of a firstgeneration non-ozone-depleting substance with a second-generation non-ozone-depleting substance in

2015, on the theory that in so doing it was ordering

the replacement of the original class I or class II substance, the very same theory would allow the agency

to order the replacement of an eleventh-generation

non-ozone-depleting substance with a twelfth-generation non-ozone-depleting substance in 2115. If

anything, the court of appeals was being charitable

when it said that this interpretation merely “borders” on the absurd. Pet. App. 15a. Tellingly, far

29

from attempting to refute this point, NRDC embraces it. See NRDC Pet. 28.

Finally, NRDC claims that the D.C. Circuit “suggested that EPA’s authority to regulate manufacturers currently using HFCs was undermined by Congress’s ‘failure to enact general climate change legislation.’” NRDC Pet. 29 (quoting Pet. App. 18a). In

fact the court of appeals said the opposite—not that

“Congress’s failure to enact general climate change

legislation” prevents EPA from acting when the

agency otherwise has authority to do so, but that this

congressional inaction “does not authorize EPA to

act” when, as here, the agency otherwise does not

have authority to do so. Pet. App. 18a. That is not a

controversial proposition.

3. One of the themes of the petitions is that the

decision below “cuts the heart out of Section 612”

(NRDC Pet. 3) and “gut[s] [a] crucial 25-year-old environmental program” (Industry Pet. 3). In making

this claim, however, petitioners assume the answer

to the question presented in the case. That question

is whether—as petitioners insist—CAA § 612 gives

EPA the unlimited authority to order the replacement of any substance that is used for a purpose for

which an ozone-depleting substance was once used,

or instead—as respondents maintain, as the D.C.

Circuit held, and as the agency had long recognized—Section 612 gives EPA only the limited authority to order the replacement of an ozonedepleting substance. For the reasons we have given,

petitioners’ position is wrong. Thus, far from having

“cut the heart out” of Section 612 and “gutted” the

agency’s regulations, the D.C. Circuit simply kept

the SNAP program within the bounds prescribed by

Congress.

30

To the extent that the age of the program—going

on 25 years—has any relevance, it supports respondents’ position, not petitioners’, since EPA had not

sought to use the SNAP program for this purpose until 2015. See Pet. App. 3a, 6a, 12a-13a & n.3. It was

the rule at issue that fundamentally changed the

program, not the court of appeals’ decision, which returned the SNAP program to its original and

longstanding function.

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

W. CAFFEY NORMAN

KEITH BRADLEY

KRISTINA V. ARIANINA

Squire Patton Boggs

(US) LLP

2550 M Street, NW

Washington, DC 20037

(202) 457-6000

Counsel for Respondent

Mexichem Fluor, Inc.

DAN HIMMELFARB

Counsel of Record

JOHN S. HAHN

ROGER W. PATRICK

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

dhimmelfarb@mayerbrown.com

WILLIAM J. HAMEL

Arkema Inc.

900 First Avenue

King of Prussia, PA 19406

Counsel for Respondent

Arkema Inc.

AUGUST 2018