Petition for Writ of Certiorari — Natural Resources Defense Council, Petitioner v. Mexichem Fluor, Inc., et al.

Supreme Court briefJun 29, 2018

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No. 17-____

IN THE

Supreme Court of the United States

————

NATURAL RESOURCES DEFENSE COUNCIL,

Petitioner,

MEXICHEM FLUOR, INC., et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

DAVID D. DONIGER

Counsel of Record

DAVID R. BAAKE

IAN FEIN

GERALD GOLDMAN

BENJAMIN LONGSTRETH

MELISSA J. LYNCH

NATURAL RESOURCES

DEFENSE COUNCIL

1152 15th St. NW Suite 300

Washington, DC 20005

(202) 289-6868

ddoniger@nrdc.org

Counsel for Petitioner

June 25, 2018

:,/621(3(635,17,1*&2,1&± ±:$6+,1*721'&

QUESTION PRESENTED

Congress enacted Title VI of the Clean Air Act to

phase out the production of chemicals that destroy the

stratospheric ozone layer and to ensure the safety of

the substitutes developed to replace them in millions

of products, from air conditioners to aerosol sprays.

Section 612, titled “Safe Alternatives Policy,” serves

the latter objective, directing that “[t]o the maximum

extent practicable” ozone-depleting substances “shall

be replaced” by substitutes “that reduce overall risks

to human health and the environment.” 42 U.S.C.

§ 7671k(a). Section 612 makes it unlawful to replace

an ozone-depleting substance with a dangerous

substitute where EPA has determined that a safer

alternative is available, and directs EPA to establish

and update lists of substitutes that are safe or

prohibited for specific uses. Id. § 7671k(c), (d).

For more than two decades EPA interpreted Section

612 to bar anyone from using a dangerous substitute

in applications listed as prohibited. In the decision

below, however, a divided D.C. Circuit panel decided

that EPA’s authority ends once product manufacturers adopt substitutes that do not deplete ozone. Under

the ruling, no matter how toxic, flammable, or

environmentally harmful those substitutes may be,

and no matter how much safer the available alternatives, such manufacturers are immune from further

regulation under Section 612.

The question presented is:

Whether EPA has authority under Section 612 to

prohibit use of dangerous but non-ozone-depleting

substitutes by any person, including by product

manufacturers who began using such substitutes

before EPA placed them on the prohibited list?

(i)

PARTIES TO THE PROCEEDINGS

Petitioner Natural Resources Defense Council was

an intervenor in support of EPA in the court of appeals.

Additional respondent-intervenors in support of EPA

were Honeywell International, Inc., and the Chemours

Company FC, LLC.

EPA was respondent in the court of appeals.

Petitioners below, who are respondents here, are

Mexichem Fluor, Inc. (“Mexichem”), and Arkema Inc.

(“Arkema”).

RULE 29.6 DISCLOSURE STATEMENT

Petitioner Natural Resources Defense Council has

no parent company and has issued no publicly held

stock.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

PARTIES TO THE PROCEEDINGS ..................

RULE 29.6 DISCLOSURE STATEMENT .........

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

OPINION BELOW ..............................................

JURISDICTION ..................................................

STATUTES AND

REGULATORY PROVISIONS ........................

Statutes .....................................................

Regulations ...............................................

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

The Safe Alternatives Program ................

1. Clean Air Act Section 612....................

2. The 1994 Regulations ..........................

3. Listing Decisions Since 1994 ...............

2015 Regulation of HFCs..........................

The Decision Below ...................................

1. The Majority Opinion ..........................

2. The Dissent ..........................................

EPA’s 2018 Guidance................................

REASONS FOR GRANTING THE PETITION...

(iii)

TABLE OF CONTENTS—Continued

Page

THE DECISION BELOW DESTROYS A

CORE CLEAN AIR ACT PROGRAM

AND PUTS MILLIONS OF AMERICANS IN DANGER ..................................

THE MAJORITY’S ERROR CAN BE

CORRECTED ONLY BY THIS COURT ..

III. THE DECISION BELOW CONFLICTS

WITH THE TEXT, STRUCTURE, AND

PURPOSE OF SECTION 612 ..................

A. The Statutory Text Does Not Mandate

the Majority’s Restrictive Interpretation of “Replace” ...................................

B. The Majority’s Interpretation Conflicts with the Statutory Context and

Structure ..............................................

C. The Majority’s Interpretation Conflicts with the Express Statutory

Policy ....................................................

D. The Majority’s Interpretation Produces Illogical Consequences and

Perverse Incentives That Congress

Could Not Have Intended ...................

CONCLUSION ....................................................

TABLE OF AUTHORITIES

CASES

Page(s)

Alliance for Responsible

CFC Policy, Inc. v. EPA,

No. 94-1396 (D.C. Cir. filed June 16,

1994) ..........................................................

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984) ...................................

Coal. for Responsible Regulation, Inc. v.

EPA, 684 F.3d 102 (D.C. Cir. 2012) .........

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

134 S. Ct. 1584 (2014) ............................... 6, 23

FERC v. Elec. Power Supply Ass’n,

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

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................... 21, 29

Michigan v. EPA,

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

Util. Air Regulatory Grp. v. EPA,

134 S. Ct. 2427 (2014) ............................... 12, 23

STATUTES AND REGULATIONS

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

42 U.S.C. § 7409 ...........................................

42 U.S.C. § 7607(b)(1)............................. 15, 23, 24

42 U.S.C. §§ 7671-7671q ..............................

42 U.S.C. § 7671d(a)(3) ................................

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

TABLE OF AUTHORITIES—Continued

Page(s)

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

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

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

40 C.F.R. § 82.170(a) ....................................

40 C.F.R. § 82.174(d) .............................. 10, 11, 24

40 C.F.R. § 82.178(6) ....................................

40 C.F.R. § 82.180 ........................................

40 C.F.R. § 82.180(a)(7) ................................

40 C.F.R. § 82.184(b)(3) ................................

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

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

64 Fed. Reg. 3,865 (Jan. 26, 1999) ...............

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

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

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

81 Fed. Reg. 86,778 (Dec. 1, 2016) ...............

83 Fed. Reg. 18,431 (Apr. 27, 2018) ... 18, 19, 21, 30

INTERNATIONAL TREATIES

Amendment to the Montreal Protocol on

Substances that Deplete the Ozone Layer,

Oct. 15, 2016, U.N.T.C. XXVII.2.f ............

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Montreal Protocol on Substances that

Deplete the Ozone Layer, Sept. 16,

1987, S. Treaty Doc. No. 100-10, 1522

U.N.T.S. 29 ................................................

OTHER AUTHORITIES

136 Cong. Rec. H12908 (Oct. 26, 1990),

reprinted in 1 A LEG. HIST. OF THE CLEAN

AIR ACT AMENDMENTS OF 1990 (1993) ......

Am. Heritage Dictionary (5th ed. 2018

online) .........................................................

U.S. Global Change Research Program,

Climate Science Special Report: Fourth

National Climate Assessment, Volume I

(Donald. J. Wuebbles et al. eds., 2017) ....

Y. Xu et al., The Role of HFCs in Mitigating

21st Century Climate Change, 13 Atmos.

Chem. Phys. 6083 (2013), available at

https://doi.org/10.5194/acp-13-6083-2013 ...

OPINION BELOW

The opinion of the United States Court of Appeals

for the D.C. Circuit is reported at 866 F.3d 451. The

opinion may be found in the Appendix to the Petition

for Certiorari of Honeywell International, Inc., et al.,

filed June 25, 2018 (hereinafter “App.”) at 1a.

JURISDICTION

The D.C. Circuit’s judgment was entered on August

8, 2017. That court denied petitions for rehearing on

January 26, 2018. App. 47a. On March 16, 2018,

Chief Justice Roberts extended the time for filing a

petition for certiorari until June 25, 2018. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATUTES AND REGULATORY PROVISIONS

A. Statutes

Section 612 of the Clean Air Act, 42 U.S.C. § 7671k,

titled “Safe Alternatives Policy,” states in relevant

part:

(a) Policy

To the maximum extent practicable, class I

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

substances] shall be replaced by chemicals,

product substitutes, or alternative manufacturing processes that reduce overall risks

to human health and the environment.

...

Within 2 years after November 15, 1990, the

Administrator shall promulgate rules under

this section providing that it shall be

unlawful to replace any [ozone-depleting]

substance with any substitute substance

which the Administrator determines may

present adverse effects to human health or

the environment, where the Administrator

has identified an alternative to such

replacement that—

(1) reduces the overall risk to human

health and the environment; and

(2) is currently or potentially available.

The Administrator shall publish a list of

(A) the substitutes prohibited under this

subsection for specific uses and (B) the safe

alternatives identified under this subsection

for specific uses.

(d) Right to petition

Any person may petition the Administrator to

add a substance to the lists under subsection

from either of such lists. The Administrator

shall grant or deny the petition within 90

days after receipt of any such petition. If

the Administrator denies the petition, the

Administrator shall publish an explanation

of why the petition was denied. If the

Administrator grants such petition the

Administrator shall publish such revised list

within 6 months thereafter. . . .

B. Regulations

The Environmental Protection Agency (“EPA”) promulgated the regulations required by Section 612(c) in

1994 at 40 C.F.R. Part 82. 59 Fed. Reg. 13,044 (Mar.

18, 1994). Excerpts of the regulatory text are reprinted

at App. 49a-72a.

EPA promulgated the final rule challenged in this

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

Excerpts of the rule are reprinted at App. 73a-128a.

INTRODUCTION

The divided ruling below cuts the heart out of

Section 612 of the Clean Air Act, the provision that

Congress enacted in 1990 to ensure the safety of chemicals that substitute for ozone-depleting substances in

millions of air conditioners, refrigerators, aerosol cans,

insulating foams, and other products. Congress sought

to ensure that industry did not respond to the dangers

of ozone depletion by jumping from the frying pan into

the fire – by adopting substitutes for ozone-depleting

substances that create new and avoidable health or

environmental risks, possibly even greater than those

posed by the original chemicals.

To this end, Section 612 establishes the policy of

replacing ozone-depleting substances “[t]o the maximum

extent practicable” with substitutes and alternatives

that “reduce overall risk to human health and the

environment.” 42 U.S.C. § 7671k(a). Section 612

directs EPA to make it “unlawful to replace” an ozonedepleting substance with a substitute that is dangerous to human health or the environment where there

is a lower-risk alternative. Id. § 7671k(c). The statute

also directs EPA to establish and keep up-to-date a list

of substitutes that are prohibited for specific uses, and

a list of safe alternatives. Id. § 7671k(c), (d).

Since it was established in 1994, EPA’s safe alternatives program under Section 612 has effectively

protected millions of consumers from dangerous substitutes, and efficiently guided multi-billion-dollar

investments by hundreds of companies to develop

safer substitutes and products. The majority’s ruling,

however, gravely misreads Section 612 to leave both

the public protections and the business incentives of

the safe alternatives program in tatters.

From the program’s outset in 1994, EPA has interpreted Section 612(c) to bar anyone from utilizing a

dangerous substitute in a use the agency has listed as

prohibited. Updating the safe and prohibited lists

more than 20 times since then, EPA has prohibited the

use of both ozone-depleting and non-ozone-depleting

substitutes in dozens of applications because those

substitutes are toxic, flammable, damaging to the climate, or otherwise environmentally dangerous, and

because safer alternatives are available. The 2015 rule

at issue in this case, prohibiting certain uses of the

potent greenhouse gases called hydrofluorocarbons

(“HFCs”), was just the latest such action.

The majority ruling, however, opens a gaping

loophole in the safe alternatives program by redefining the meaning of “replac[ing]” an ozone-depleting

substance. Under the ruling, once a product manufacturer adopts a substitute that does not deplete ozone,

the company is grandfathered from further regulation

under Section 612, and it may continue using the

substitute in perpetuity regardless of any subsequent

prohibition by EPA. In one swoop, the majority ruling

deprived Section 612 of almost all force and effect.

See App. 22a.1 A ruling this consequential for both

health and environmental protection and industrial

innovation requires this Court’s review.

The majority ruling guts not only the HFC rule; it

rewrites the fundamentals of Section 612 so that it will

Appendix citations are to the Appendix to the Petition for

Certiorari of Honeywell International, Inc., et al., filed June 25,

2018.

never again be effective at protecting the public or

promoting innovation. The ruling relegates EPA to

the role of neighborhood scold – it can tell companies

that certain substitutes are bad for human health and

the environment, but (except for a few remaining early

substitutes that themselves deplete ozone) the agency

is powerless to stop companies that already use

dangerous substitutes from continuing to do so.

As a result, the decision leaves millions of Americans

at risk from toxic, flammable, climate-changing, or

otherwise harmful chemicals in products they use

every day. And it destroys the incentives that innovative businesses relied on to invest billions of dollars in

bringing safer alternatives to market. The decision

protects only two chemical companies whose business

plans depend on continuing to sell old and dangerous

chemicals.

As Judge Wilkins explained in dissent, this dangerous result has no basis in the statutory text, contradicts

the statute’s structure, and “makes a mockery” of Section

612’s express purpose of replacing ozone-depleting

substances with substitutes that reduce overall health

and environmental risks to the maximum practicable

extent. App. 34a. The majority opinion creates irrational distinctions and perverse consequences that

Congress could not have intended – including allowing

companies to reintroduce unsafe chemicals that have

been prohibited since 1994, provided that those

companies are not switching directly from an ozonedepleting substance.

Supreme Court review is the only means of preserving Section 612’s vital health and environmental

safety program. Because the Clean Air Act assigns

exclusive jurisdiction to the D.C. Circuit, the statutory

authority question in this case can never come before

another circuit or arise in a future case. For this

reason, the Court regularly reviews divided D.C.

Circuit decisions that undermine important Clean Air

Act programs. See e.g., EPA v. EME Homer City

Generation, L.P., 134 S. Ct. 1584 (2014). The Court

should grant certiorari to correct the panel majority’s

erroneous decision and prevent Section 612 from

becoming a dead letter.

STATEMENT OF THE CASE

A. The Safe Alternatives Program

1. Clean Air Act Section 612

In 1990, Congress enacted Title VI of the Clean Air

Act, 42 U.S.C. §§ 7671–7671q, to implement and go

beyond the requirements of the Montreal Protocol on

Substances that Deplete the Ozone Layer.2 Title VI

phases out the production of ozone-depleting substances (called “class I and class II substances”) more

rapidly than required by the Protocol. And to make

sure that the transition from ozone-depleting substances does not lead to other, possibly even worse,

health or environmental problems, Congress adopted

Section 612, titled “Safe Alternatives Policy,” to

regulate the safety of the substitutes and alternatives

for ozone-depleting substances. 42 U.S.C. § 7671k.

The express purpose of Section 612 is to assure “[t]o

the maximum extent practicable” that substitutes for

ozone-depleting substances “reduce overall risks to

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

As stated in a summary of the conference committee

agreement: “[T]he [EPA] Administrator shall base risk

Montreal Protocol on Substances that Deplete the Ozone

Layer, Sept. 16, 1987, S. Treaty Doc. No. 100-10, 1522 U.N.T.S.

29.

estimates on the total environmental risk (toxicity,

flammability, atmospheric, etc.) that is perceived to

exist, not just the risk as it relates to ozone depletion.”3

Section 612(c) directs EPA to promulgate rules

making it unlawful for anyone “to replace” an ozonedepleting substance with a substitute that EPA has

found to adversely affect human health or the environment, where the agency has identified an available

alternative that “reduces the overall risk to human

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

same subsection directs EPA to publish lists of “(A) the

substitutes prohibited under this subsection for specific

uses and (B) the safe alternatives identified under this

subsection for specific uses.” Id. Underscoring the

intent that these lists are intended to evolve with new

information on risks and alternatives, Section 612(d)

provides a right to petition EPA to add or remove

substances from the safe and prohibited lists, and it

requires the agency to quickly respond to such petitions. Id. § 7671k(d).

2. The 1994 Regulations

EPA issued regulations in 1994 establishing a

comprehensive safe alternatives program to implement Section 612. 59 Fed. Reg. 13,044 (Mar. 18, 1994)

(hereinafter “1994 rule”). The regulations state the

program’s objectives: “to promote the use of those

substitutes believed to present lower overall risks to

human health and the environment relative to the

[ozone-depleting] compounds being replaced, as well

as to other substitutes for the same end-use, and to

prohibit the use of those substitutes found, based on the

136 Cong. Rec. H12908 (Oct. 26, 1990), reprinted in 1 A LEG.

HIST. OF THE CLEAN AIR ACT AMENDMENTS OF 1990, at 1428

(1993).

same comparisons, to increase overall risks.” 40 C.F.R.

§ 82.170(a) (emphasis added).

The 1994 rule established the initial lists of prohibited and safe substitutes required under Section 612(c).

The rule designated various substitutes as “acceptable”

(safe) for dozens of uses (sometimes with use conditions or limitations). See 40 C.F.R. § 82.180; 59 Fed.

Reg. at 13,122–46 (initial lists). The rule also listed

various substitutes as “unacceptable” (prohibited) for

particular uses in light of their high risks and the

availability of safer alternatives. Id.

EPA made these acceptable and unacceptable listing

decisions through a seven-factor comparative risk

analysis that includes consideration of atmospheric

effects and health and environmental impacts, toxicity,

flammability, occupational and consumer risks, ecosystem risks, and the availability of other substitutes.

40 C.F.R. § 82.180(a)(7). From the outset, EPA considered a substitute’s contribution to climate change as

one factor in listing decisions, using an index called

“global warming potential” (“GWP”), which measures

a chemical’s heat-trapping potency relative to carbon

dioxide. Id. § 82.178(6); see 59 Fed. Reg. at 13,055.

Evaluating HFCs, EPA noted in the 1994 rule that

they are not ozone-depleting, but they are potent

greenhouse gases, with thousands of times the heattrapping power of carbon dioxide. As a result, “rapid

expansion of the use of some HFCs could contribute to

global warming.” 59 Fed. Reg. at 13,071. At the time,

however, the agency concluded that HFCs posed “lower

overall risk than continued use of” chlorofluorocarbons

(“CFCs”), which both deplete ozone and have even

higher GWPs than HFCs. Id. Based on this comparison, EPA determined that, absent available lower-risk

alternatives, HFCs could serve as a “near-term option

for moving away from CFCs.” Id. at 13,071–72.

Accordingly, the agency listed HFCs as acceptable

substitutes for certain end-uses of CFCs. See id. at

13,074–13,081 (refrigeration and air conditioning),

13,085–89 (foams), 13,116 (aerosols). At the same

time, however, EPA made clear that these initial

acceptable listings could be revised in the future based

on new health or environmental risk information or

the emergence of safer alternatives. Id. at 13,047.

Some commenters in that rulemaking – including

the corporate predecessor of Arkema, one of the petitioners below – argued that a substitute’s “acceptable”

status could never be revoked, and a person using that

substitute could never be required to change. Unless

the substitute itself depletes ozone, they argued, EPA

lacked authority to require someone to replace it,

even if a safer alternative were to become available

after the initial listing. See, e.g., Elf Atochem (now

Arkema), Comments on the Proposed Significant New

Alternatives Policy Program at 1, EPA Air Docket No.

A-91-42-IV-D-30 (June 18, 1993) (“Once a substance

has been approved and is in use in a particular

application, the Agency’s authority ceases.”). In the

alternative, the company asked EPA to guarantee that

the “acceptable” listings would last for 10 years, a

period the company said “will allow for an appropriate

return on investment.” Id.

EPA expressly rejected the argument that “replacing”

ozone-depleting chemicals happens only once and that

companies that begin using non-ozone-depleting substitutes are exempt from any further regulation. The

1994 rule stated: “EPA believes that [ozone-depleting]

substances are ‘replaced’ within the meaning of

section 612(c) each time a substitute is used, so that

once EPA identifies an unacceptable substitute, any

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

Reg. at 13,048. The agency continued:

Under any other interpretation, EPA 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. EPA believes Congress could not have

intended such a result, and must therefore

have intended to cover future use of existing

substitutes.

Id.

Accordingly, EPA affirmed its authority to change

listings based on new risk information or the emergence of safer alternatives: “[T]he Agency may revise

these [listing] decisions in the future as it reviews

additional substitutes and receives more data on

substitutes already covered by the program.” Id. at

13,047. The agency promised to take such actions

through rulemaking: “[O]nce a substitute has been

placed on either the acceptable or the unacceptable

list, EPA will conduct notice-and-comment rulemaking to subsequently remove a substitute from either

list.” Id.

The regulations codified this understanding. Implementing Section 612(d), the rules provide for petitions

“to delete a substitute from the acceptable list and add

it to the unacceptable list.” 40 C.F.R. § 82.184(b)(3).

And they provide that “[n]o person may use a substitute after the effective date of any rulemaking adding

such substitute to the list of unacceptable substitutes.”

Id. § 82.174(d).

Nothing in the 1994 regulatory language, preamble,

or listing decisions distinguishes between an entity

that is still using an ozone-depleting substance and an

entity that has already switched to a non-depleting

substitute. If EPA changes the status of a substitute

from acceptable to unacceptable, then 40 C.F.R.

§ 82.174(d) specifies that “no person” may use it,

regardless what that person is currently using.

The industry commenters petitioned for review of

the 1994 rule through their trade association, specifically raising the issue of “grandfathering in the event

of a change in . . . listing.” See Alliance for Responsible

CFC Policy, Inc. v. EPA, No. 94-1396 (D.C. Cir. filed

June 16, 1994); see also Joint Status Report at 3,

Alliance, No. 94-1396 (D.C. Cir. Sept. 24, 1997) (listing

issues). The association dropped the case, however,

obtaining no relief. See Order, Alliance, No. 94-1396

(D.C. Cir. Feb. 5, 2002), ECF No. 656132 (terminating

case).

3. Listing Decisions Since 1994

In succeeding years, EPA implemented the safe

alternatives policy as established in 1994. The agency

regularly added newly-developed substitutes to the

acceptable list. It also added existing substitutes to

the unacceptable list based on new information revealing serious health and environmental risks and the

availability of alternatives.

For example, in 1996 the agency prohibited continued use of sulfur hexafluoride (“SF6”) as a substitute

propellant in aerosol products, because that chemical

has a global warming potential 24,900 times that of

carbon dioxide, and because safer alternative propellants were available. 61 Fed. Reg. 54,030, 54,038 (Oct.

16, 1996).

And in 1999 EPA banned use of hexafluoropropylene (“HFP”) as a substitute refrigerant because it was

shown to cause kidney damage in exposed workers.

64 Fed. Reg. 3,865 (Jan. 26, 1999).

Both of these substitutes were highly dangerous, yet

neither one depletes the ozone layer. In both cases,

the bans applied to all parties. They precluded new

users, of course. But far more importantly, they

required persons who were already using these chemicals to stop doing so.

B. 2015 Regulation of HFCs

As noted above, Mexichem and Arkema were put on

notice in 1994 that because HFCs are potent

greenhouse gases with thousands of times the global

warming potential (GWP) of carbon dioxide, EPA had

approved them as a “near-term option,” and reserved

the right to revise this classification if new data

showed greater risks or if safer substitutes emerged.

59 Fed. Reg. at 13,071, 13,107.

Both of those conditions came to pass over the next

two decades. In 2009, EPA determined that HFCs and

five other greenhouse gases endanger public health

and the environment by contributing to climate change

that is, among other things, intensifying deadly heatwaves, droughts, extreme storms, rising seas, and the

spread of disease. 74 Fed. Reg. 66,496, 66,497–98

(Dec. 15, 2009). The D.C. Circuit upheld the endangerment finding in 2012. Coal. for Responsible

Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012), rev’d

in part on other grounds, Util. Air Regulatory Grp. v.

EPA, 134 S. Ct. 2427 (2014).

Over this same period industry developed and EPA

approved numerous new acceptable substitutes for

many end-uses that formerly used ozone-depleting

substances and now use HFCs. For example, chemical

producers had developed hydrofluoroolefins (“HFOs”)

with much less heat-trapping power than HFCs. One

such substance, HFO-1234yf, an alternative suitable

for car air conditioners, is approximately 1,300 times

less potent than HFC-134a, one of the substitutes that

EPA approved in 1994 as a “near term option” for

ozone-depleting CFCs. In 2011, EPA listed HFO1234yf as an acceptable substitute for CFCs in car air

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

In 2010 and 2012, the Natural Resources Defense

Council and other organizations petitioned EPA under

Section 612(d) to remove various uses of HFCs from

the list of acceptable alternatives, citing new evidence

of danger and the advent of safer substitutes.4

Scientific evidence continued to mount, as researchers

reported in 2013 that unrestrained HFC growth could

add significantly to global average temperatures in

this century, seriously amplifying the dangers of

climate change.5

In 2015, after notice and comment, EPA added

HFCs to the unacceptable list for specific uses, including aerosol propellants, motor vehicle air conditioners,

various supermarket cooling systems, vending machines,

See Letter from David. D. Doniger, NRDC, to Lisa P. Jackson,

Administrator, EPA (May 7, 2010), https://www.nrdc.org/sites/

default/files/air_10050701a.pdf; Letter from David. D. Doniger,

NRDC, to Lisa P. Jackson, Administrator, EPA (Apr. 27, 2012),

https://www.nrdc.org/sites/default/files/glo_1204 2701a.pdf.

Y. Xu et al., The Role of HFCs in Mitigating 21st Century

Climate Change, 13 Atmos. Chem. Phys. 6083, 6087 (2013),

available at https://doi.org/10.5194/acp-13-6083-2013.

and some insulating foams. 80 Fed. Reg. 42,870 (July

20, 2015).

In the final rule, EPA observed that “HFC emissions

are projected to increase substantially and at an

increasing rate over the next several decades if left

unregulated.” Id. at 42,879. HFC emissions in the

United States are increasing “more quickly than those

of any other [greenhouse gases], and globally they are

increasing 10-15% annually,” driven in part by the

rapid growth of air conditioning. Id. EPA projected

that HFC emissions would “double by 2020 and triple

by 2030.” Id. Once in the air, HFCs “rapidly accumulat[e]

in the atmosphere.” Id. Atmospheric concentrations

of specific HFCs were rising by 10-16 percent per year.

Id. EPA found that if this growth were unchecked, the

contribution to global warming from HFC emissions in

2050 could reach 27 to 69 percent of the warming from

that year’s carbon dioxide emissions. Id.

In comments on the proposal, Arkema repeated

arguments that had been raised and resolved against

it in the 1994 rule, including the contention that

“replace” is a one-time-only event. 80 Fed. Reg. at

42,936–37. EPA responded by tracing how the agency

had resolved those issues in 1994. See id. The agency

did not reopen those issues. Rather, it made clear that

it was applying the decision-making criteria established in the 1994 rule to an expanded body of

information on risks and substitutes:

It has now been over twenty years since the

initial [safe alternatives] rule was promulgated. In that period, the menu of available

alternatives has expanded greatly and now

includes many substitutes with diverse characteristics and varying effects on human health

and the environment. . . . In addition to an

expanding menu of substitutes, developments

over the past 20 years have improved our

understanding of global environmental issues.

. . . GWPs and climate effects are not new

elements in our evaluation framework, but . . .

the amount and quality of information has

expanded.

Id. at 42,878. The 2015 rule set effective dates for

each end-use that allowed reasonable transition times

for terminating the use of HFCs. See, e.g., id. at

42,883–84 (aerosols), 42,892–96 (motor vehicle air

conditioning), 42,905–06 (retail food refrigeration).

Overall, those deadlines afforded HFC producers

and users more than twice the 10-year span that Elf

Atochem (now Arkema) said in 1994 would allow

industry to recoup its investments. See supra p. 9.

Mexichem and Arkema filed petitions for review of

the 2015 rule invoking the D.C. Circuit’s jurisdiction

under Section 307(b)(1) of the Act, 42 U.S.C.

§ 7607(b)(1).6

In 2016, the parties to the Montreal Protocol adopted an

amendment to phase down production of HFCs. Amendment to

the Montreal Protocol on Substances that Deplete the Ozone

Layer, Oct. 15, 2016, U.N.T.C. XXVII.2.f.

The current

administration stated in 2017 that it has initiated the process to

consider ratification of the amendment by the United States. See

Remarks at the 29th Meeting of the Parties to the Montreal

Protocol by Judith G. Garber, Principal Deputy Assistant

Secretary, Bureau of Oceans and International Environmental

and Scientific Affairs (Nov. 23, 2017), https://www.state.gov/

e/oes/rls/remarks/2017/275874.htm. EPA’s authority to prohibit

specific uses of HFCs, however, is rooted in domestic law –

Section 612 of the Clean Air Act – and is entirely independent of

the amendment.

C. The Decision Below

On August 8, 2017, a divided panel of the D.C.

Circuit issued a decision that eviscerates Section 612

and leaves the safe alternatives program in total

disarray.

First, the panel unanimously upheld EPA’s authority

under Section 612(c) to move HFCs from the acceptable

list to the unacceptable list and rejected all of Mexichem’s

and Arkema’s claims that the listing change was

arbitrary and capricious. App. 11a–12a, 22a. The

panel also specifically affirmed that adverse climate

impacts are a valid basis for prohibiting a substitute

under Section 612. App. 22a–24a.

Nonetheless, over Judge Wilkins’ forceful dissent,

Judges Kavanaugh and Brown went on to hold that

even though EPA could add HFCs to the statutory list

of prohibited substitutes, EPA could not stop product

manufacturers that already use HFCs from continuing

to do so – no matter how harmful HFCs may be, or how

much safer the available alternatives. App. 17a–18a.

1. The Majority Opinion

The majority first characterized the 2015 rule as a

“new interpretation” of EPA’s legal authority, rejecting the agency’s explanation that it had adopted the

current interpretation in the 1994 rule and consistently applied it in 2015. App. 13a. The majority then

held that “Section 612 does not require (or give EPA

authority to require) manufacturers to replace nonozone-depleting substances such as HFCs.” App. 3a.

The majority’s statutory analysis hinges on its

interpretation of the term “replace.” Where EPA

interpreted “replace” as a continuing process, occurring each time a manufacturer uses HFCs instead of

ozone-depleting substances, the majority held that

dictionary definitions unambiguously confine “replace”

to only “a one-time occurrence.” App. 14a. According

to the majority, once a manufacturer transitions from

ozone-depleting substances to a non-depleting substitute, “there is no ozone-depleting substance to ‘replace,’”

and EPA has no further authority. Id.

Despite upholding the listing of HFCs as unacceptable, prohibited substitutes, the majority vacated the

2015 Rule “to the extent it requires manufacturers to

replace HFCs with a substitute substance.” App. 26a.

2. The Dissent

Judge Wilkins dissented. He explained that the

majority’s definition of the term “replace” was not the

only one available, and that “[b]ecause the term

‘replace’ is susceptible of multiple interpretations in

this context, it cannot serve as the basis for discerning

clear congressional intent.” App. 27a. He cited

examples from the same dictionaries that the majority

consulted, describing replacement processes that play

out over time, such as the transition from internal

combustion engines to hybrids and electric cars, and

the transition from older medicines to generic substitutes. App. 30a–31a. In those cases, Wilkins wrote:

the ubiquitous product that has become the

industry standard is “replaced” by a number

of substitutes, and the replacement takes

place not at a specific point in time, not just

once, and not by a single substitute. Instead,

the ubiquitous item is “replaced” by any

number of substitutes over the course of

years, and it may be the case that one

substitute is succeeded by a better substitute

at some point in time.

Id.

Examining the statutory structure, context, and

purpose, Judge Wilkins concluded that EPA had

reasonably interpreted “replace” and that the 2015

rule should have been upheld in its entirety. App.

29a–40a.

D. EPA’s 2018 Guidance

The decision below has upset the business plans of

myriad companies and end-users affected by the 2015

rule. In an April 2018 guidance document issued after

the lower court decision, EPA underscored that “regulated entities are experiencing substantial confusion

and uncertainty regarding the meaning of the

vacatur.” 83 Fed. Reg. 18,431, 18,434 (Apr. 27, 2018).

The agency also noted that implementing the partial

vacatur would create illogical results. For example,

under the panel decision, EPA acknowledged that

product manufacturers will be able to keep making

HFC-containing products that “an end user still using

an [ozone-depleting substance] may not be able to

purchase and use.” Id. at 18,436.

The decision would require EPA to make other

complex distinctions among categories of users that

are not found in the statute or in the 1994 and

subsequent regulations. For example, EPA observed

that nothing in its regulatory language “draws a

distinction between product manufacturers and other

users of substitutes . . . nor between someone using

an HFC and someone using an [ozone-depleting

substance].” Id. at 18,434. EPA explained that even

the meaning of “product manufacturer” is not selfevident, giving the example of supermarket refrigera-

tion systems that are made in a factory, but not filled

with HFCs until assembled at the site where they will

be used. Id. Further, the panel decision does not

provide clarity on “the date by which a manufacturer

must have switched to an HFC in order to avoid

being subject” to the 2015 rule, which could lead to

“confusion about whether or not the listings . . . apply

to individual manufacturers.” Id. The decision also

does not address how the prohibited listing applies to

a manufacturer that is using HFCs in some product

lines and ozone-depleting substances in others. Id. at

18,435.

As a result, even though the court upheld the

prohibited-listing of HFCs and ordered only a partial

vacatur as to product manufacturers, EPA threw up

its hands and announced that it “will not apply the

HFC use restrictions or unacceptability listings in the

2015 Rule for any purpose” and “will implement the

court’s vacatur by treating it as striking the HFC

listings in the 2015 Rule in their entirety” pending a

future rulemaking in which some restrictions may be

re-proposed at an unknown date. Id. at 18,436

(emphasis added). The guidance document thus has

magnified the harm to public health and the environment, while simultaneously leaving industry in the

dark on the scope and timing of their responsibilities.

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW DESTROYS A

CORE CLEAN AIR ACT PROGRAM AND

PUTS MILLIONS OF AMERICANS IN

DANGER

When Congress enacted Title VI of the Clean Air Act

it wanted to make sure that the phase-out of ozonedepleting substances would not create other health or

environmental risks – risks that could be even greater

than those from the original chemicals. See supra pp.

6–7. Section 612 was enacted to ensure that, “[t]o

the maximum extent practicable,” the phase-out

would “reduce overall risks to human health and the

environment.” 42 U.S.C. § 7671k(a).

This was not intended to be just a one-shot exercise.

Congress set no sunset date for the safe alternatives

program established by Section 612. To the contrary,

Congress envisioned a continuing program evolving

toward new and safer alternatives and reduced overall

health and environmental risk. Congress underscored

this objective by giving any person the right to petition

EPA at any time to update the lists of safe and

prohibited substitutes based on new information on

risks and safer alternatives. See 42 U.S.C. § 7671k(d).

The panel majority disregarded these statutory

provisions and congressional purposes when it created

a permanent grandfathered status for unsafe alternatives that are already in use. That grandfathering

renders Section 612 toothless, with dire consequences

for human health and the environment.

The decision leaves EPA powerless to act when new

scientific data shows that an existing substitute poses

greater risk than understood when it was initially

deemed acceptable – in this instance, as evidence

emerged of HFCs’ extreme heat-trapping potency and

extraordinarily rapid growth rate. It also leaves EPA

powerless to act when industrial innovators develop

new alternatives with a tiny fraction of the adverse

health or environmental impact of the substitutes

currently in use – in this instance, punishing companies

that invested more than one billion dollars to bring to

market safer refrigerants with less than one-thousandth

the impact of HFCs, and to commercialize new air

conditioners, refrigerators, and other products adapted

to use them.

By loosening restraints on the rapid growth of these

extremely potent greenhouse gases, the decision will

seriously worsen the impacts of climate change –

impacts that are now far more evident and urgent

than when this Court heard Massachusetts v. EPA,

549 U.S. 497 (2007).7

And the health and environmental consequences of

this crippling interpretation go well beyond the

present HFC rule. The decision below would have

blocked EPA from stopping the use of the kidney-toxic

refrigerant HFP in 1999, which threatened grave

damage to exposed workers. And it would have

blocked EPA from stopping the use of the super-potent

greenhouse gas SF6 in aerosol products in 1996, when

safer propellants were readily available. See supra pp.

11–12. Worse still, the majority decision would even

allow manufacturers to re-start using HFP, SF6, or

any other substitute that EPA has listed as prohibited,

as long as the manufacturer had already ceased using

ozone-depleting substances.

The decision has upset HFC transition plans across

a wide variety of industries that, in EPA’s words, “are

experiencing substantial confusion and uncertainty

regarding the meaning of the vacatur.” 83 Fed. Reg.

U.S. Global Change Research Program, Climate Science

Special Report: Fourth National Climate Assessment, Volume I at

12 (Donald. J. Wuebbles et al. eds., 2017) (Since the 2014

publication of the Third National Climate Assessment, “stronger

evidence has emerged for continuing, rapid, human-caused

warming of the global atmosphere and ocean. . . . The last few

years have also seen record-breaking, climate-related weather

extremes, the three warmest years on record for the globe, and

continued decline in arctic sea ice.”).

at 18,434. Although the majority professed concern for

the reliance interests of HFC-using product manufacturers, not a single product manufacturer joined the

lawsuit to block the 2015 Rule. Instead of protecting

these stakeholders, the decision rewards two chemical

companies whose business strategy is to keep making

old and dangerous HFCs in old chemical plants that

have been fully paid off. As Arkema admitted in 1994,

HFC producers needed 10 years to recoup their investments. See supra p. 9. The 2015 rule gave them more

than 20 years.

The majority’s ruling favors these two companies

at the expense of the innovative chemical makers

and product manufacturers that invested heavily in

reliance on the ground rules established nearly 25

years ago. They reasonably counted on the acceptable

and unacceptable lists continuing to evolve in response

to new science and new alternatives. The decision

destroys their incentives and their investment-backed

expectations.

Most of all, the ruling gravely harms millions of

consumers that rely on the safe alternatives program

to make sure that the products they use are safe for

their health, their immediate surroundings, and the

environment world-wide.

Congress did not intend these hazardous and

perverse results. This Court’s intervention is now the

only way to preserve this important public health and

environmental program.

II. THE MAJORITY’S ERROR CAN BE

CORRECTED ONLY BY THIS COURT

Without this Court’s review, Section 612’s safe

alternatives policy will be a dead letter. Because the

D.C. Circuit has exclusive jurisdiction over Clean Air

Act rules of national applicability, 42 U.S.C. § 7607(b)(1),

there is no possibility for a circuit split to develop. Nor

is there any other avenue for further percolation.

Unless the Court grants this petition, the D.C. Circuit’s

decision will be the final word on the future of Section

612 and the safe alternatives program.

The Court regularly reviews D.C. Circuit opinions

concerning nationally significant regulations, where a

circuit split is unlikely or, as in this case, impossible

to develop because the D.C. Circuit has exclusive

jurisdiction. See, e.g., EPA v. EME Homer City

Generation, L.P., 134 S. Ct. 1584 (2014) (reversing

divided panel decision invalidating Cross-State Air

Pollution Rule); FERC v. Elec. Power Supply Ass’n,

136 S. Ct. 760 (2016) (reversing divided decision

invalidating demand response rule under Federal

Power Act); see also Michigan v. EPA, 135 S. Ct. 2699,

2706 (2015); Util. Air Regulatory Grp. v. EPA, 134 S.

Ct. 2427 (2014). This case equally merits the Court’s

review.

III. THE DECISION BELOW CONFLICTS

WITH THE TEXT, STRUCTURE, AND

PURPOSE OF SECTION 612

Section 612(c) makes it unlawful for anyone to use a

substitute for ozone-depleting substances in a manner

that EPA has found to be unsafe, regardless whether

a party was already using the substitute when the

agency added it to the prohibited list, and regardless

when a party last used an ozone-depleting substance.

This is how EPA has consistently interpreted Section

612 since 1994. See 40 C.F.R. § 82.174(d) (“No person

may use a substitute after the effective date of any

rulemaking adding such substitute to the list of

unacceptable substitutes.”). See supra pp. 9–11.

The petitioners below challenged this interpretation

through their trade association in 1994, but obtained

no relief. See supra p. 11. The panel erred in giving

the petitioners a second bite at the apple. In order to

promote the finality and stability of Clean Air Act

rules, Section 307(b)(1) of the Act requires challenges

to be filed within 60 days of the rule’s promulgation.

42 U.S.C. § 7607(b)(1). EPA objected to the untimely

attack on the 1994 rule in its brief below. EPA Br. 18–

19 (ECF No. 1615278). The majority nonetheless

proceeded to review EPA’s interpretation and to

misconstrue Section 612.

EPA’s longstanding construction of Section 612 is

undoubtedly a reasonable reading of that provision.

Indeed, this is the only reasonable interpretation of

the provision. The majority’s contrary interpretation

misreads the statutory text, structure, and purpose

and produces a host of irrational results that Congress

could not have intended. As the dissent found, the

traditional tools of statutory construction do not

command these counterintuitive and counterproductive results.

A. The Statutory Text Does Not Mandate

the Majority’s Restrictive Interpretation

of “Replace”

Section 612(c) provides that EPA “shall promulgate

rules under this section providing that it shall be

unlawful to replace any [ozone-depleting] substance

with any substitute” found to be unsafe. Purporting to

rely on a dictionary definition, the majority held that

the term “replace” as used in this provision unambiguously means a “one-time occurrence.” App. 14a–15a.

Based on its interpretation of this term, the majority

held that EPA could not regulate a product manufacturer’s use of a substitute after the manufacturer

ceased using ozone-depleting substances, because at

that point “there is no ozone-depleting substance to

‘replace.’” App. 14a.

The majority’s textual analysis is deficient for

several reasons. First, the majority ignored dictionary

definitions that undermine its conclusion. In dissent,

Judge Wilkins cited examples from the same dictionaries consulted by the majority that define “replace”

as a substitution process occurring in stages over

time, such as the replacement of internal combustion

engines by hybrid and electric cars. In those cases,

“the ubiquitous item is ‘replaced’ by any number of

substitutes over the course of years, and it may be the

case that one substitute is succeeded by a better

substitute at some point in time.” App. 29a–31a.

Other examples of continuing replacement processes come readily to mind. If a teacher is absent for

maternity leave, her students may have a succession

of substitute teachers. In common usage, each substitute

“replaces” not only the one before, but also the original

teacher. Soft drink bottlers have replaced sugar with

a succession of artificial sweeteners (e.g., saccharin,

aspartame, and sucralose). Each “sugar substitute”

replaces sugar, regardless of the order in which they

were adopted. A long-lived individual may have

multiple replacements of the same hip. Each one

replaces the original hip, not just the one before.

Second, the majority failed to read the terms

“replace” and “replacement” in light of the synonyms

Congress used in Section 612. As the dissent observed,

“substitute” appears ten times in Section 612 and

“alternative” twelve times. App. 33a. An “alternative”

is “[o]ne of a number of possible choices or courses of

action.” Am. Heritage Dictionary (5th ed. 2018 online).

A new and lower-risk refrigerant is an alternative to

its ozone-depleting predecessor even if a company

adopted a different alternative first.

The term

“substitute” is equally broad, referring to items that

can be used to serve the same function. The interchangeable use of these capacious synonyms reinforces

that it was Congress’s intention to create an ongoing

process to fill the functions originally served by

ozone-depleting substances with progressively safer

substitutes.

For these reasons, the statutory text does not

support the majority’s conclusion that “replace” is

unambiguously a one-time occurrence. As the dissent

wrote: “Because the term ‘replace’ is susceptible of

multiple interpretations in this context, it cannot

serve as the basis for discerning clear congressional

intent.” App. 27a. The error in the majority’s conclusion is further demonstrated by the context, structure,

and purpose of the statute.

B. The Majority’s Interpretation Conflicts

with the Statutory Context and

Structure

The majority’s restrictive interpretation of “replace”

is inconsistent with the statutory context and structure. As the dissent explained, Section 612(a) and the

first sentence of Section 612(c) are “written in the

passive voice and without identifying a particular

target of the regulation [and] appear to apply to

anyone and everyone, including retailers, product

manufacturers and chemical manufacturers.” App.

31a. As the dissent notes, id. n.1, in other provisions

of Title VI, Congress wrote prohibitions that specify

the regulated parties with particularity. If Congress

had intended the prohibition to apply only to entities

still using ozone-depleting substances when a substitute was listed as unsafe, it surely would have said so.

The point is reinforced by the second sentence of

Section 612(c), which directs EPA to list “substitutes

prohibited . . . for specific uses.” Like the prior sentence,

the prohibited-list sentence applies to anyone and

everyone; it does not say prohibited for only some

entities engaged in those uses. By grandfathering all

of the entities already using the substitute in that

way, the majority’s holding deprives the prohibited list

of nearly all force and effect.

The majority’s interpretation also conflicts with the

“[r]ight to petition” created under Section 612(d). The

dissent explained that “[b]y creating this petition

process, it is evident that Congress desired the safe

alternatives list to be a fluid and evolving concept that

promotes those alternatives that pose the least overall

risk to human health and the environment.” App. 36a.

Yet the “process becomes a half measure if EPA is only

allowed to ‘replace’ an ozone-depleting substance once

and only once.” Id. By depriving EPA of the authority

to take meaningful action in response to a Section

612(d) petition, the majority’s decision defeats the

“[r]ight to petition” created by that provision.

C. The Majority’s Interpretation Conflicts

with the Express Statutory Policy

Section 612(a) states Congress’s policy of ensuring

“[t]o the maximum extent practicable” that ozonedepleting substances are replaced by “chemicals,

product substitutes, or alternative manufacturing pro-

cesses that reduce overall risks to human health and

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

dissent found, the majority’s interpretation “makes a

mockery” of that congressional purpose by halting the

process of risk reduction at the adoption of the first

non-ozone-depleting substitute. See App. 34a. If

allowed to stand, the majority’s interpretation will

leave EPA powerless to respond to new data on

previously unknown or underestimated risks, as the

agency did by banning the kidney toxin HFP and the

greenhouse gas SF6, and as it has tried to do with

HFCs. The majority’s interpretation will also undermine the statutory purpose of promoting development

of new alternatives. If EPA cannot make incumbent

users stop using prohibited substitutes when new and

safer alternatives become available, the incentives for

industry to invest in developing such alternatives are

destroyed.

The majority hypothesized that without limiting

“replace” to its restrictive one-time-only reading, EPA

could continue regulating substitutes for “even 100

years or more.” App. 15a. But there is no textual,

structural, or purposive evidence that Congress

intended Section 612 to sunset. To the contrary,

Congress’s inclusion of a petition process indicates

that Section 612 was intended to function indefinitely

as many other Clean Air Act provisions do. See, e.g.,

42 U.S.C. § 7409 (National Ambient Air Quality

Standards reviewed every five years). The fact that

courts have conventional tools to restrain any excesses

is also pertinent. If EPA, for example, were to require

another refrigerant transition without demonstrating

a meaningful reduction in overall health and environmental risk or the availability of safer alternatives,

the D.C. Circuit could easily find that listing action

arbitrary and capricious. Here, however, the panel

unanimously upheld EPA’s HFC listing decision

against all such challenges. App. 22a–25a.

Finally, even though the majority agreed that EPA

could add HFCs to the prohibited list based on climate

risk, their opinion suggested that EPA’s authority to

regulate manufacturers currently using HFCs was

undermined by Congress’s “failure to enact general

climate change legislation.” App. 18a. This Court’s

seminal climate change decision, Massachusetts v. EPA,

rejected that very argument, holding that the current

Clean Air Act authorizes regulation of greenhouse

gases and that Congress’s failure to pass additional

legislation is irrelevant. 549 U.S. at 529-30. By

charging EPA to “reduce overall risk to human health

and environment,” Section 612 plainly encompasses

climate risk, and no new enactment is needed.8

D. The Majority’s Interpretation Produces Illogical Consequences and

Perverse Incentives That Congress

Could Not Have Intended

The majority’s interpretation opens loopholes and

creates illogical distinctions that Congress could not

have intended. As EPA pointed out in 1994, the onetime-only interpretation of “replace” allows regulated

parties to grandfather themselves from impending

restrictions on unsafe substitutes simply by starting

to use them before EPA can complete a rulemaking to

The majority suggested that EPA could accomplish the

same ends under other Clean Air Act provisions or the Toxic

Substances Control Act. App. 17a. The majority never elaborated how these laws might apply. Even if they could be

jury-rigged for this purpose, that is no reason to discard Section

612, which Congress enacted to address this specific problem,

with full knowledge of those other laws.

put them on the unacceptable list. 59 Fed. Reg. at

13,048. As noted above, the dissent found that this

opportunity for evasion grossly undercuts the statutory purpose of reducing overall human health and

environmental risk. App. 34a.

The majority’s reading has already sown, in EPA’s

words, “substantial confusion and uncertainty” among

the regulated industry. 83 Fed. Reg. at 18,434. See

supra pp. 18–19. And going forward, it will produce

utterly illogical consequences. For example, hundreds

of thousands of commercial buildings and supermarkets

still operate equipment containing ozone-depleting

refrigerants, equipment that will need to be retired

and replaced over the coming years.9 As the dissent

observed, the owners of these facilities are not permitted to replace that equipment with new HFC-containing

equipment – equipment that the majority opinion

allows product manufacturers to keep making.

App. 32a. The majority opinion, as EPA recently

acknowledged, creates “cases where product manufacturers may be making some products that an end user

still using an [ozone-depleting substance] may not be

able to purchase and use.” 83 Fed. Reg. at 18,436.

Congress could not have intended this result.

The majority opinion creates irrational distinctions

between competing manufacturers making products

for the same end-use. For example, most manufacturers of new cooling systems for large buildings (“chillers”)

converted their product line from ozone-depleting

CFCs to HFCs in the 1990s, but one company manu9

See ICF International, Technical Support Document: Analysis

of the Economic Impact and Benefits of Final Revisions to the

National Recycling and Emission Reduction Program at 19,

Docket No. EPA-HQ-OAR-2015-0453-0225 (Sept. 2, 2016).

factures chillers using a hydrochlorofluorocarbon

(“HCFC”) – an ozone-depleting refrigerant that the

statute allows to be used in new equipment manufactured before 2020.10 See 42 U.S.C. § 7671d(a)(3). Now

that safer alternatives are available for chillers, EPA

placed this use of HFCs on the prohibited list and set

reasonable deadlines for chiller manufacturers to

adopt non-HFC alternatives. 81 Fed. Reg. 86,778

(Dec. 1, 2016). Under the majority opinion, however,

only the company still using the ozone-depleting

HCFC will have to adopt non-HFC alternatives, while

its competitors are grandfathered to keep using HFCs

indefinitely. Congress could not have intended this

disparate treatment.

Worst of all, the majority opinion creates a loophole

that would allow the reintroduction of dangerous

substitutes that EPA prohibited in 1994. For example,

EPA banned use of a compound called “Hydrocarbon

Blend A” in a variety of air conditioning and refrigeration applications because leaky uses “may pose a high

risk of fire.” 59 Fed. Reg. at 13,082. It would now be

legal for an entity that presently uses HFCs to replace

them with Hydrocarbon Blend A, because it would not

be (in the majority’s words) “taking the place of” an

ozone-depleting substance. Congress could not have

intended to open this loophole.

These illogical and perverse results further confirm

that EPA’s long-standing interpretation of Section

612’s text, structure, and purpose establish is unambiguously correct. Even if there were residual ambiguity,

EPA’s interpretation is reasonable, as Judge Wilkins

correctly concluded. App. 39a–46a. The majority’s

See Trane, CenTraVac Centrifugal Water-Cooled Chillers,

https://tinyurl.com/yc6favav (last visited June 20, 2018).

failure to defer to that construction is another ground

for reversal. See Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DAVID D. DONIGER

Counsel of Record

DAVID R. BAAKE

IAN FEIN

GERALD GOLDMAN

BENJAMIN LONGSTRETH

MELISSA J. LYNCH

NATURAL RESOURCES

DEFENSE COUNCIL

1152 15th St. NW Suite 300

Washington, DC 20005

(202) 289-6868

ddoniger@nrdc.org

Counsel for Petitioner

June 25, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.