Petition for Writ of Certiorari — RMS of Georgia, LLC, dba Choice Refrigerants, Petitioner v. Environmental Protection Agency, et al.

Supreme Court briefFeb 27, 2026

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No. ______

In the

Supreme Court of the United States

________________

RMS OF GEORGIA, LLC, d/b/a Choice Refrigerants,

Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,

________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

ZHONETTE M. BROWN

PAUL D. CLEMENT

KAITLYN D. SCHIRALDI ERIN E. MURPHY

MARK S. CHENOWETH

Counsel of Record

NEW CIVIL LIBERTIES MATTHEW D. ROWEN

ILAN J. POSNER

ALLIANCE

4250 N. Fairfax

CLEMENT & MURPHY, PLLC

Drive, Suite 300

706 Duke Street

Arlington, VA 22203

Alexandria, VA 22314

(202) 742-8900

erin.murphy@clementmurphy.com

Counsel for Petitioner

(additional counsel listed on inside cover)

February 27, 2026

ERIN MORROW HAWLEY

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy

Lansdowne, VA 20176

DAVID M. WILLIAMSON

WILLIAMSON LAW

+ POLICY, PLLC

1001 Connecticut Ave. NW

Suite 612

Washington, DC 20036

QUESTION PRESENTED

In the American Innovation and Manufacturing

Act of 2020, Congress authorized EPA to reorder a

multibillion-dollar market—and prohibit some private

parties from continuing to participate in it at all—

while providing virtually no limits on EPA’s discretion

to refashion that market as it sees fit. Indeed, other

than instructing how to handle a handful of “essential

uses” of the substances it addresses, the Act provides

no guidance whatsoever as to how EPA should allocate

the “allowances” that are now indispensable for

companies that produce or consume those substances.

In the decision below, the D.C. Circuit did not

deny that an abject failure to constrain the sweeping

power granted EPA would be an impermissible

delegation of legislative power even under this Court’s

lax “intelligible principle” test. But rather than

condemn that Article I violation, the court committed

an Article III violation by reading into the Act the

guidance Congress did not supply: It purported to

divine from snippets of legislative history an implicit

intent to incorporate limits laid out in an entirely

different statutory provision that the Act nowhere

cross-references or incorporates. The court’s felt need

to write into the Act “intelligible principles” that even

EPA failed to perceive is proof positive that Congress

gave away what the Constitution vests in Congress

alone: the power to legislate.

The question presented is:

Whether Congress violated the Vesting Clause of

Article I by giving an executive agency unbounded

discretion to choose which private parties are entitled

to participate in a multibillion-dollar market.

PARTIES TO THE PROCEEDING

Petitioner (plaintiff-appellant below) is RMS of

Georgia, LLC, d/b/a Choice Refrigerants.

Respondents are the Environmental Protection

Agency and Lee Zeldin, Administrator of the

Environmental Protection Agency, in his official

capacity (defendants and appellants below); AirConditioning, Heating, and Refrigeration Institute

(intervenor-defendant and appellant below); and

Alliance for Responsible Atmospheric Policy

(intervenor-defendant and appellant below).

The court of appeals consolidated this case for

purposes of briefing and disposition with iGas

Holdings, Inc., et al. v. EPA, No. 23-1261 (D.C. Cir.).

Petitioner does not seek review of that judgment.

iii

CORPORATE DISCLOSURE STATEMENT

Petitioner RMS of Georgia, LLC, d/b/a Choice

Refrigerants, states that it is a limited liability

company which is not owned in whole or in part by a

parent corporation or a publicly traded company and

which does not issue stock.

STATEMENT OF RELATED PROCEEDINGS

This case arises from and is directly related to the

following proceedings:



iGas Holdings, Inc., et al. v. EPA et al., No. 231261 (D.C. Cir.) (judgment entered August 01,

2025; rehearing denied September 30, 2025);

and



RMS of Georgia, LLC v. EPA et al., No. 23-1263

(D.C. Cir.) (judgment entered August 01, 2025;

rehearing denied September 30, 2025).

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ........... iii

STATEMENT OF RELATED PROCEEDINGS ....... iv

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

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 5

JURISDICTION ......................................................... 5

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED...................................... 5

STATEMENT OF THE CASE ................................... 5

REASONS FOR GRANTING THE PETITION....... 14

The AIM Act Stretches Congress’ Power To

Delegate Far Beyond Its Breaking Point ......... 16

A. The AIM Act Supplies No Principle at All

to Constrain a Power So Vast as to

Permit Reordering an Entire Industry ...... 16

B. The D.C. Circuit’s Effort to Salvage the

AIM Act Compounded the Separation-ofPowers Violation ......................................... 21

II. This Case Provides An Excellent Vehicle To

Explore And/Or Revisit The Contours Of The

Nondelegation Doctrine..................................... 26

A. The AIM Act Cannot Plausibly Survive

Any Viable Version of the IntelligiblePrinciple Test.............................................. 26

B. If the AIM Act Does Not Violate the

Intelligible-Principle Test, Then the

Time Has Come to Reconsider It ............... 29

CONCLUSION ......................................................... 34

APPENDIX

Appendix A

Opinion, United States Court of Appeals

for the District of Columbia Circuit,

IGas Holdings, Inc. v. EPA, No. 23-1261

(Aug. 1, 2025) ............................................... App-1

Appendix B

Order, United States Court of Appeals for

the District of Columbia Circuit, IGas

Holdings v. EPA, No. 23-1261 (Sept. 30,

2025)........................................................... App-28

Appendix C

Relevant Constitutional and Statutory

Provisions................................................... App-30

U.S. Const. art. I, §1 ........................... App-30

42 U.S.C. §7675 .................................. App-30

vii

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp.

v. United States,

295 U.S. 495 (1935) ................................................ 17

Allstates Refractory Contractors, LLC v. Su,

144 S.Ct. 2490 (2024) ............................................. 28

Aptheker v. Sec’y of State,

378 U.S. 500 (1964) ................................................ 25

Bond v. United States,

564 U.S. 211 (2011) ................................................ 31

CFTC v. Schor,

478 U.S. 833 (1986) ................................................ 25

Consumers’ Rsch., Cause Based Com., Inc.

v. FCC,

88 F.4th 917 (11th Cir. 2023) ................................ 29

Dep’t of Transp. v. Ass’n of Am. R.R.,

575 U.S. 43 (2015) ............................................ 31, 32

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ................................................ 24

FCC v. Consumers’ Rsch.,

620 U.S. 656 (2025) ....................... 12, 18, 19, 20, 21,

26, 28, 29, 31

Frost v. Corp. Comm’n of Okla.,

278 U.S. 515 (1929) ................................................ 20

Gundy v. United States,

588 U.S. 128 (2019) .............. 4, 19, 21, 26, 29, 32, 33

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) ................................................ 15

viii

Heating, Air Conditioning & Refrigeration

Distribs. Int’l v. EPA,

71 F.4th 59 (D.C. Cir. 2023) .................................. 10

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) .................................................. 23

Indus. Union Dep’t, AFL-CIO

v. Am. Petroleum Inst.,

448 U.S. 607 (1980) ...................................... 4, 21, 25

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928) .................................... 26, 27, 30

Jama v. ICE,

543 U.S. 335 (2005) ................................................ 23

Learning Res., Inc. v. Trump,

--- U.S. ----, 2026 WL 477534

(U.S. Feb. 20, 2026) ............................... 4, 21, 28, 31

Mayfield v. U.S. Dep’t of Lab.,

117 F.4th 611 (5th Cir. 2024) ................................ 29

Mistretta v. United States,

488 U.S. 361 (1989) .......................... 1, 16, 17, 19, 31

Opp Cotton Mills, Inc.

v. Adm’r of Wage & Hour Div.,

312 U.S. 126 (1941) ................................................ 19

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ................................................ 17

Paul v. United States,

589 U.S. 1087 (2019) .......................................... 4, 29

Romag Fasteners, Inc. v. Fossil, Inc.,

590 U.S. 212 (2020) ................................................ 23

Smietanka v. First Tr. & Sav. Bank,

257 U.S. 602 (1922) ................................................ 25

Texas v. Rettig,

993 F.3d 408 (5th Cir. 2021).................................. 32

Tiger Lily, LLC v. HUD,

5 F.4th 666 (6th Cir. 2021) .............................. 29, 32

United States v. Rickett,

535 F.App’x 668 (10th Cir. 2013) .......................... 27

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ................................. 30

West Virginia v. EPA,

597 U.S. 697 (2022) .......................................... 20, 31

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .............................. 18, 26, 29, 30

Yakus v. United States,

321 U.S. 414 (1944) ................................................ 19

Constitutional Provision

U.S. Const. art. I, §1 ................................................. 30

Statutes

42 U.S.C. §7671c(a) .................................................. 22

42 U.S.C. §7671d(b) ............................................ 13, 23

42 U.S.C. §7675(a) .................................................... 18

42 U.S.C. §7675(b)(1) .................................................. 6

42 U.S.C. §7675(b)(2) .................................................. 6

42 U.S.C. §7675(c) ...................................................... 6

42 U.S.C. §7675(e)(1) .................................................. 6

42 U.S.C. §7675(e)(2) .................................................. 6

42 U.S.C. §7675(e)(3) ............................................ 7, 24

42 U.S.C. §7675(e)(4) ...................................... 7, 17, 19

42 U.S.C. §7675(k)(1).......................................... 13, 23

Regulations

40 C.F.R. §98.6.......................................................... 10

86 Fed. Reg. 27,150 (May 19, 2021) ....... 5, 7, 8, 14, 20

86 Fed. Reg. 55,116 (Oct. 5, 2021) ....................... 9, 14

87 Fed. Reg. 61,314 (Oct. 11, 2022) ..................... 8, 20

87 Fed. Reg. 66,372 (Nov. 3, 2022)..................... 10, 18

88 Fed. Reg. 46,836 (July 20, 2023) ......................... 11

88 Fed. Reg. 72,060 (Oct. 19, 2023) ......................... 12

89 Fed. Reg. 82,682 (Oct. 11, 2024) ......................... 18

Other Authorities

The Administrative State Before the

Supreme Court: Perspectives on the

Nondelegation Doctrine, Am. Enter. Inst.

(Peter J. Wallison & John Yoo eds., 2022) ............ 33

David J. Barron & Elena Kagan,

Chevron’s Nondelegation Doctrine, 2001

Sup. Ct. Rev. 201 (2001) ........................................ 27

Br. of Professor Chad Squitieri, FCC v.

Consumers’ Rsch., No. 24-354

(U.S. Feb. 18, 2025) ............................................... 33

Ronald A. Cass, Delegation Reconsidered: A

Delegation Doctrine for the Modern

Administrative State, 40 Harv. J.L. & Pub.

Pol’y 147 (2017) ...................................................... 27

Ronald A. Cass, Fixing Deference: Delegation,

Discretion, and Deference Under Separate

Powers, 17 NYU J.L. & Liberty 1 (2023) .............. 33

Comments of Choice Refrigerants

(Dec. 19, 2022), https://perma.cc/PW74-7GLQ ..... 11

Comments of Choice Refrigerants

(July 6, 2021), https://perma.cc/9G9C-N6JZ..... 9, 10

EPA, Phasedown of Hydrofluorocarbons:

Allowance Allocation Methodology for 2024

and Later Years: Response to Comments

(June 2023), https://perma.cc/25HG-P67E ..... 11, 18

The Federalist No. 78 (Hamilton)

(Clinton Rossiter ed., 1961) ................................... 32

Philip Hamburger, Delegating or Divesting?,

115 Nw. U.L. Rev. Online 88 (2020) ..................... 30

Philip Hamburger, Nondelegation Blues,

91 Geo. Wash. L. Rev. 1083 (2023).................. 27, 33

Gary Lawson, Delegation and Original

Meaning, 88 Va. L. Rev. 327 (2002) ...................... 29

James Madison, The Report of 1800, National

Archives (Jan. 7, 1800) .......................................... 33

Julian Davis Mortenson & Nicholas Bagley,

Delegation at the Founding,

121 Colum. L. Rev. 277 (2021) .............................. 30

S. 2754, 116th Cong. (2019) ....................................... 5

Antonin Scalia, A Note on the Benzene Case,

4 AEI J. on Gov’t & Soc’y 25 (1980) ...................... 32

David Schoenbrod, The Delegation Doctrine:

Could the Court Give It Substance?,

83 Mich. L. Rev. 1223 (1985) ........................... 27, 33

Trending Reports Insights, United States

Hydrofluorocarbons Refrigerant Market

Size, Sector Trends & Growth Challenges,

LinkedIn (May 22, 2025),

https://perma.cc/H2KS-93GY .................................. 6

xii

Ilan Wurman, Nondelegation at the

Founding, 130 Yale L.J. 1490 (2021) .............. 30, 33

PETITION FOR WRIT OF CERTIORARI

Many have observed that the present state of this

Court’s nondelegation doctrine is neither particularly

demanding nor particularly satisfying. If, as all seem

to agree, Congress cannot delegate its legislative

authority to the other branches, then there needs to be

some meaningful and judicially administrable limit on

delegation. The Court has struggled to formulate such

a test, but it has always recognized at least one

irreducible minimum of a constitutional delegation:

Congress must supply some “intelligible principle” to

guide the exercise of the power it conveys. Mistretta

v. United States, 488 U.S. 361, 372 (1989). This case

presents the rare statute that fails to clear even that

low bar, giving an administrative agency exactly zero

direction. The D.C. Circuit avoided that conclusion

only by fashioning “intelligible principles” itself. Far

from fixing the nondelegation violation, that

committed another one, as the third branch is no more

entitled than the second branch to exercise the first

branch’s legislative power. Neither this statute nor

the decision below can stand.

The American Innovation and Manufacturing Act

of 2020 (“AIM Act”) requires an 85% reduction in

production and consumption of hydrofluorocarbons

(“HFCs”) by 2036. To that end, the Act mandates that,

going forward, businesses in the refrigeration and air

conditioning sector may produce or consume HFCs

only pursuant to the “allowances” it creates. Congress

tasked the Environmental Protection Agency (“EPA”)

with establishing a cap-and-trade program to

accomplish that phasedown, and it told EPA how to

set the number of allowances for each phase. It also

instructed EPA that, for the first five years, it may

allocate special allowances for a small number of

“essential uses,” and must allocate them for certain

enumerated applications—a subset that accounts for

roughly 2% of allowances. But Congress provided no

guidance as to how EPA should go about allocating the

remaining 98%. That is not an exaggeration. The

statute does not say one word about how EPA should

exercise its sweeping power to allocate those

allowances.

If that divestment of core legislative power does

not violate the intelligible-principle test, then it is

difficult to fathom what would. To be sure, this Court

has held that even very broad delegations may pass

muster if they are accompanied by some guidance on

how to exercise the power divested. But the AIM Act

does not even instruct EPA to allocate allowances as

“reasonably necessary or appropriate,” or “fairly and

equitably,” or in the “public interest.” It offers literally

nothing to guide EPA in deciding how to allocate

allowances that are a matter of life and death for many

companies in the multibillion-dollar industry the Act

regulates. Apparently unwilling or unable to make

those hard choices itself—and face the electoral

consequences that would follow from picking winners

and losers in a major market—Congress did what the

Constitution forbids: It transferred its legislative

power elsewhere, thereby ensuring that unelected and

unaccountable

bureaucrats—not

Members

Congress who must stand for reelection—would take

the blame.

EPA tried to defend the AIM Act and its utterly

unconstrained discretion by arguing that Congress did

not need to make those hard choices itself. But the

D.C. Circuit refused to endorse such an absolute

abdication. And rightly so, as a law that passes the

buck so completely that even the implementing agency

cannot identify constraining guardrails is a blatant

Article I violation. Yet rather than admit that

Congress plainly transgressed even the minimal

limits this Court’s nondelegation cases impose, the

D.C. Circuit tried to cure the problem by supplying the

intelligible principle Congress omitted. Relying on a

few snippets of legislative history, the court concluded

that Congress must have “intended” for EPA to

allocate allowances in accordance with a methodology

set out in a provision in an entirely different statutory

regime, which the AIM Act does not mention, let alone

cross-reference or incorporate (a particularly glaring

omission, since the Act does expressly incorporate

other aspects of the Clean Air Act).

Far from fixing the Article I violation, the D.C.

Circuit’s solution just added an Article III violation to

the mix. After all, Congress may no more grant its

Article I power to the judiciary than it may grant it to

the executive. Nor may the judiciary arrogate such

power unto itself. When Congress fails to supply the

guidance the Constitution demands, the courts’ job is

to tell Congress to do its job, not to do Congress’ job for

it. The point of the nondelegation doctrine is to ensure

that Congress—not unelected and unaccountable

bureaucrats, or unelected and unaccountable judges—

makes the hard choices. Two separation-of-powers

wrongs do not make a constitutional right.

Nearly 50 years ago, “Justice Rehnquist opined

that major national policy decisions must be made by

Congress and the President in the legislative process,

not delegated by Congress to the Executive Branch.”

Paul v. United States, 589 U.S. 1087, 1087 (2019)

(Kavanaugh, J., respecting the denial of certiorari); see

Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607, 685-86 (1980) (Rehnquist, J., concurring

in the judgment). Multiple Justices have written since

to underscore the need for “further consideration” of

the rules governing delegations of power to decide

important questions of national policy. Paul, 589 U.S.

at 1088 (Kavanaugh, J.); see, e.g., Gundy v. United

States, 588 U.S. 128, 148-49 (2019) (Alito, J.,

concurring in the judgment); id. at 149 (Gorsuch, J.,

dissenting); see also Learning Res., Inc. v. Trump, --U.S. ----, 2026 WL 477534, at *32-34 (U.S. Feb. 20,

2026) (Gorsuch, J., concurring).

This case provides an excellent opportunity to

undertake that consideration. This is the rare statute

that flunks even the “intelligible principle” test. If

that much is not clear, then it is time for a new test.

Either way, Congress’ abject failure to supply

meaningful guardrails cannot stand, and neither can

the D.C. Circuit’s effort to supply the guardrails that

Congress did not. Indeed, if anything, the latter

decision just makes the present state of affairs worse,

as it strongly signals that a nondelegation challenge is

more likely to embolden policymaking by the evenless-accountable judicial branch than to spur courts to

force Congress to actually do its job. This Court should

grant certiorari and make clear once and for all that,

if Congress wants to reshape critical segments of the

economy, then it must make the hard choices itself.

OPINIONS BELOW

The D.C. Circuit’s opinion, 146 F.4th 1126, is

reproduced at App.1-27.

JURISDICTION

The D.C. Circuit entered judgment on August 1,

2025, App.1-27, and denied a timely rehearing petition

on September 30, 2025, App.28-29. The Chief Justice

extended the time to file a petition to February 27,

2026. This Court has jurisdiction under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Relevant constitutional and statutory provisions

are reproduced in the Appendix.

STATEMENT OF THE CASE

1. Petitioner Choice Refrigerants (“Choice”) is a

small business based in Alpharetta, Georgia, that

produces refrigerants, including a patented blend of

HFCs. HFCs are synthetic cooling agents with broad

applications. They are primarily used in refrigeration

and air conditioning, but they also feature in foam

products, aerosols, and solvents. 86 Fed. Reg. 27,150,

27,155 (May 19, 2021). HFC refrigerants are found in

every home, commercial building, hospital, school,

government office, warehouse, and manufacturing

plant in America, and industries using or producing

fluorocarbons contributed over $158 billion to the

economy and provided employment to over 700,000

individuals. See S. 2754, 116th Cong. §2(a)(1) (2019).

The domestic HFC refrigerant market was valued at

$2.55 billion annually in 2024—and that was after the

AIM Act had already taken a sizable chunk of it. See

Trending

Reports

Insights,

United

States

Hydrofluorocarbons Refrigerant Market Size, Sector

Trends & Growth Challenges, LinkedIn (May 22,

2025), https://perma.cc/H2KS-93GY. Choice is deeply

invested in this market, having invented several

proprietary environmentally preferable HFC blend

products for which it holds patents. But thanks to a

boundless divestment of power from Congress,

Choice’s ability to continue operating now depends

entirely on the whims of EPA.

In December 2020, Congress passed the AIM Act,

which mandates the domestic phasedown of HFCs via

a cap-and-trade program. To that end, the Act

includes an enumerated list of HFCs, which it defines

as “regulated substances.” 42 U.S.C. §7675(c). It then

directs a phasedown to take place in several stages,

which it tasks EPA with administering.

Id.

§7675(b)(1). First, EPA must calculate a “production

baseline.” Id. §7675(e)(1). The Act then caps HFC

production and consumption according to the

following schedule: 90% of the baseline for 2020 to

2023; 60% of the baseline for 2024 to 2028; 30% of the

baseline for 2029 to 2033; 20% of the baseline for 2034

to 2035; and, finally, 15% of the baseline by 2036. Id.

§7675(e)(2)(C). To facilitate those caps, the Act

creates a supply of “allowances,” i.e., “limited

authorization[s] for the production or consumption of”

HFCs.

Id. §7675(b)(2).

And the Act declares

production or consumption of HFCs unlawful going

forward, unless the market participant holds a

sufficient number of those allowances.

Id.

§7675(e)(2)(A)-(D).

The single most important question under a capand-trade program is how to allocate allowances. Yet

the AIM Act has precious little to say on that score.

The Act instructs that EPA “may” allocate allowances

for certain “essential uses” for up to five years if the

agency makes two statutorily enumerated findings.

Id. §7675(e)(4)(B)(i). And, for the first five years, it

requires EPA to allocate allowances as needed for the

continued production of a short list of specialized

products. Id. §7675(e)(4)(B)(iv). But the Act does not

provide any guidance as to how EPA should go about

allocating vital allowances among the many

companies whose uses or products do not fit into either

of those narrow categories. It simply commands that

EPA “shall issue a final rule … phasing down the

production of [HFCs] in the United States through an

allowance allocation and trading program in

accordance with this section,” without supplying any

tools for EPA to use in determining who should be able

to keep—or perhaps even start—producing or

consuming HFCs or to what extent. Id. §7675(e)(3)(A).

2. Armed with boundless discretion to craft the

AIM Act’s cap-and-trade program as it sees fit, and

recognizing that Congress provided no guidance, EPA

published a proposed rule seeking input on how best

to create a framework for issuing allowances for the

2022-23 phase. See 86 Fed. Reg. at 27,150, 27,166. In

doing so, the agency openly touted its “considerable”

and “significant discretion in how to establish an

allowance allocation.” Id. at 27,166, 27,178.

Indeed, EPA did not identify any statutory factors

that guided its analysis. The agency pointed to

nothing in the statute (because there is nothing in the

statute) that constrained its ability to consider or

weigh policies as varied as what would “benefit the

environment …; provide an incentive or disincentive

to companies that develop and introduce low-GWP[1]

and non-HFC substances; support the effective

functioning of the HFC production and import market;

and/or create or remove barriers to new entrants to the

market, including for socially and economically

disadvantaged individuals.” Id. at 27,203 (emphasis

added). And EPA proposed options as varied as

allocating allowances based on a period of past use to

be determined at its sole discretion; charging “a fee for

every allowance provided”; prioritizing applications

for new market entry from “minority- and womanowned small businesses” that may have faced

“challenges entering the HFC import market due to

systemic racism, market-access barriers, or other

challenges”; or simply auctioning off some or all

allowances—including auctioning allowances off for

the express purposes of having winning bidders

“retire” (i.e., not use) them. Id. at 27,177, 27,203.

EPA ultimately settled on an ad hoc allocation

scheme under which it would first allocate allowances

for the statutorily mandated specialized uses—which

EPA calculated as constituting just 2% of total HFC

allowances. See 87 Fed. Reg. 61,314, 61,316-17 (Oct.

11, 2022) (identifying some 5,426,319 applicationspecific allowances as compared to 273,498,315 total

consumption allowances). Instead of allocating the

remaining allowances to existing market participants

in accordance with their market share (as the D.C.

Circuit wrongly suggested the agency had done), EPA

1 “GWP” stands for “global warming potential.”

then set aside a dedicated pool of allowances

exclusively for new market entrants, and assigned the

remaining “general pool” to existing companies based

on their HFC import activity as reported under the

Greenhouse Gas Reporting Program. 86 Fed. Reg.

55,116, 55,147 (Oct. 5, 2021). EPA also reserved the

right to unilaterally “retire, revoke, or withhold”

allowances from any company that it deems to have

unlawfully produced or imported HFCs—without ever

initiating enforcement action. Id. at 55,169-70.

EPA did not claim that this ad hoc allocation

scheme stems from congressional directives (because

Congress provided none). Nor does EPA’s scheme

resemble an ordinary understanding of a marketshare allocation (which, as EPA itself freely admitted,

is not something the Act anywhere mandates). Most

obviously, EPA’s decision to set aside a designated

pool of valuable allowances to new market entrants is

the opposite of market-share-based allocation; so too

is its decision to wield allowances as administrative

penalties. But its decision to allocate the remaining

allowances based on data from the Greenhouse Gas

Reporting Program—a nearly two-decade-old climate

change program that does not reflect the commercial

market realities of HFC consumption—does not

reflect market share either. That greenhouse gas data

was never intended to provide a breakdown of market

share;

captures

only

companies

that

administratively reported HFC imports, not

necessarily all companies that actually consumed

HFCs. See Comments of Choice Refrigerants 2, 5-7

(July

2021)

(“July

Comments”),

https://perma.cc/9G9C-N6JZ. Indeed, the program

allowed importers to use designated agents to file the

HFC import data on their behalf. See 40 C.F.R. §98.6.

Moreover, the Greenhouse Gas Reporting Program

does not distinguish between legal and illegal HFC

uses. See supra, July 6 Comments, at 7. So, under

EPA’s allocation scheme, intellectual-property thieves

who use imported HFCs to pirate patented versions of

other companies’ products would receive allowances to

continue their illegal activity.

Choice raised those and other concerns in

comments to EPA. Choice also questioned whether

EPA has the statutory authority to regulate HFC

blends in the first place. Id. at 2 n.3, 15-16. EPA

ignored Choice’s concerns, so Choice sued, raising both

statutory arguments and a nondelegation challenge.

The D.C. Circuit rejected the former on the merits and

declined to reach the latter because Choice had not

raised its constitutional challenge in its comments on

EPA’s initial rulemaking for the 2022-23 phase. See

Heating, Air Conditioning & Refrigeration Distribs.

Int’l v. EPA, 71 F.4th 59, 65 (D.C. Cir. 2023).

3. Because EPA’s first rule covered only the 202223 phase of the AIM Act, the agency initiated a

subsequent rulemaking for years 2024 to 2028. See 87

Fed. Reg. 66,372 (Nov. 3, 2022). After again weighing

the pros and cons of various approaches, EPA

proposed an ad hoc scheme “similar” to the previous

rule (though, this time, without any additional setaside allowances for new market entrants). Id. at

66,377-80.

Having seen the results of EPA’s first foray into

unbridled policymaking, Choice again submitted

comments explaining that EPA’s proposed scheme

would reorder the refrigerants market in a manner

that does not reflect Choice’s actual market share.

Comments of Choice Refrigerants (Dec. 19, 2022),

https://perma.cc/PW74-7GLQ. And to the extent the

AIM Act permits that result, Choice now explained,

the Constitution does not, as Congress may not simply

vest in an administrative agency the power “to hand

out rights to produce and import (i.e., consume) HFC

refrigerants,” without any guidance whatsoever on

how to do so. Id. at 15.

In responding to that constitutional concern, EPA

did not purport to identify any principle—intelligible

or otherwise—set forth in the AIM Act to guide it in

deciding how to allocate allowances. To the contrary,

EPA acknowledged that it is free to allocate the vast

majority of allowances however it sees fit, so long as

its decisions are “reasonable and reasonably

explained”—i.e., so long as it complies with the

Administrative Procedure Act. See EPA, Phasedown

Hydrofluorocarbons:

Allowance

Allocation

Methodology for 2024 and Later Years: Response to

Comments 91-92 (June 2023) (“Response to

Comments”), https://perma.cc/25HG-P67E. EPA said

that poses no constitutional problem, as the “Supreme

Court has over and over upheld even very broad

delegations,” and at least the AIM Act says how many

allowances it gives the agency sweeping authority to

allocate in total for each year. Id. at 90.

EPA proceeded to finalize a rule for the 2024-28

period. See 88 Fed. Reg. 46,836 (July 20, 2023). When

the agency ultimately announced its allowance

allocations, Choice’s concerns about its market share

were vindicated. Choice had historically used a

commercial distributor to serve as its HFC import

agent. That distributor was responsible for reporting

HFC imports to EPA, even though those HFCs were

shipped directly to—and were only ever used by—

Choice. But because EPA allocated allowances based

on its own made-up reporting scheme grounded in the

Greenhouse Gas Reporting Program, it gave Choice’s

rightfully earned HFCs to that distributor. EPA also

awarded allowances to a Chinese-backed company

that used imported HFCs to copy Choice’s patented

products. As a result, Choice received about 30%

fewer allowances than it would have under a genuine

market-share approach. See 88 Fed. Reg. 72,060,

72,062 (Oct. 19, 2023).

4. Choice filed a petition for review, arguing that

EPA’s actions amount to an unconstitutional exercise

of legislative power by an executive branch agency.

The D.C. Circuit denied the petition.2

The court began by trying to ratchet down even

further the already-low bar this Court’s nondelegation

cases set:

Invoking the proposition that “‘[t]he

guidance needed is greater … when an agency action

will affect the entire national economy than when it

addresses a narrow, technical issue,’” App.13 (quoting

FCC v. Consumers’ Rsch., 620 U.S. 656, 673 (2025)),

the court posited that little guidance is needed here

because the AIM Act is focused on “a particular subject

matter … in a particular industry,” App.19. The court

then concluded that Congress supplied all the

guidance EPA needs—not in the AIM Act itself, but in

2 Choice’s case was consolidated with a petition brought by iGas

Holdings and others against EPA. That petition, which was also

denied, raised non-constitutional challenges to EPA’s framework

that are not presented here.

a different statute that it “intended” EPA to use as a

“model,” namely, Title VI of the Clean Air Act, which

(per the court) established a market-share-based

phaseout program for a different set of chemicals.

App.15.

The court did not identify anything in the text of

the AIM Act instructing EPA to model its cap-andtrade program after the program laid out in Title VI of

the Clean Air Act. Nor could it, as the AIM Act does

not contain any language incorporating the provision

of Title VI that directs EPA to allocate allowances

based on the “quantity of [the] substance produced by

[the] person [concerned] during the baseline year.” 42

U.S.C. §7671d(b). That omission is particularly

notable, as the AIM Act does expressly incorporate

other provisions of the Clean Air Act. See, e.g., id.

§7675(k)(1)(C).

But with no such express

incorporation to go on vis-à-vis Title VI, the D.C.

Circuit instead posited that the “legislative history

demonstrates that the AIM Act was ‘modeled on’” that

separate regime, citing a few statements during a

subcommittee hearing referencing it. App.17.

The court also purported to find evidence of that

implicit intention in the fact that “both statutes …

used ‘baseline’ years to set caps and [reduction]

schedules for the regulated refrigerants,” and that

both statutes instruct “EPA to allocate allowances to

accomplish the refrigerant [reductions] ‘in accordance

with’ each controlling Act.” App.17.

And it

counterintuitively deemed that conclusion reinforced

by the fact that the AIM Act incorporates provisions of

the Clean Air Act other than Title VI. App.17 (citing

42 U.S.C. §7675(k)(1)(C)).

Based just on the supposed “strong similarity”

between the two statutes, the court deemed it “evident

that Congress expected the EPA to implement the

HFC cap-and-trade program in a manner that tracked

the successful predecessor programs” under Title VI of

the Clean Air Act. App.17. More puzzling still, the

court deemed that inference sufficient to sustain

EPA’s actions even though EPA openly acknowledged

all throughout its rulemakings that it did not consider

itself bound by—and indeed had not followed—the

market-share approach set forth in Title VI. See, e.g.,

86 Fed. Reg. at 27,176 (acknowledging that allowing

new market entrants deviated from Title VI practice);

id. at 27,203 (citing differences between the AIM Act’s

HFC phasedown and Title VI’s ozone-depleting

substances phaseout to justify reserving the right to

shift HFC allocation methodologies over time); id. at

55,123 (noting that EPA could “build on” Title VI

experience, but also that the AIM Act requirements

“diverge from the text and framework of title VI”); id.

at 55,142-43 (rejecting use of the “company-specific”

baselines set forth in Title VI).

REASONS FOR GRANTING THE PETITION

The defining feature of our Constitution is its

careful delineation of three separate branches of

government. The Constitution explicitly vests in each

branch specific powers, in accordance with each

branch’s level of political accountability, and in

ultimate service of preserving the liberty and selfgovernment that the Constitution protects above all.

But that design works only so long as those powers

remain vested in one branch alone, which is why this

Court has always stressed that one branch may not

grant its powers to another. To be sure, when it comes

to Congress’ delegations of core legislative power, the

Court has struggled to articulate judicially

enforceable limits. But it has never wavered from the

bedrock principles that the Article I power to legislate

cannot be divested to either the Article II or III

branches. And it has consistently required Congress

to articulate at least some principle to constrain the

exercise of the discretion it confers.

Congress failed to clear even that low bar in the

AIM Act. The Act empowers EPA to allocate HFC

allowances in the refrigerants market, but it provides

no guidance, standard, or limit on how to do so. None.

It instead leaves EPA free to choose which companies

may participate in a multibillion-dollar industry, and

which may not, based entirely on the agency’s policy

preferences, whether grounded in preserving orderly

markets, advancing social justice, achieving

environmental ends, or bare revenue raising. There is

no theory of constitutional delegation under which

such an abject abdication of core legislative power

could pass muster. Indeed, the D.C. Circuit made no

effort to offer one. It instead embraced the “Mr. Fix-it

Mentality,” Hamdi v. Rumsfeld, 542 U.S. 507, 576

(2004) (Scalia, J., dissenting), and tried to remedy the

nondelegation problem by supplying intelligible

principles of its own. Far from curing the separationof-powers problem with unconstitutional delegations

of core Article I power to the Article II branch, the

prospect of federal courts rewriting statutes to supply

the guidance Congress failed to provide just adds an

Article III transgression to the list.

That said, the D.C. Circuit’s decision powerfully

illustrates the lengths to which courts will go to avoid

admitting that a statute violates this Court’s

nondelegation

doctrine.

Perhaps

that

understandable when this Court has avoided

identifying a statute that goes too far for nearly a

century. But that is all the more reason for the Court

to take the opportunity to do so here, as allowing a

statute like this to survive nondelegation scrutiny

sends lower courts the unmistakable message that

“intelligible principles” analysis is lax in theory but

non-existent in fact. Indeed, if this statute satisfies

the intelligible-principle test, then it is well past time

to come up with a new test. And leaving the decision

below in place just makes matters worse, as it stands

as a caution to think twice about pressing

nondelegation challenges at all, lest the even-lessaccountable judicial branch just craft “intelligible

principles” derived from its own policy preferences.

In short, the AIM Act could not survive any test

that enforces the Constitution’s command that

Congress may not abdicate its Article I duty to decide

the hard questions itself. The Court should grant

certiorari and say so.

The AIM Act Stretches Congress’ Power To

Delegate Far Beyond Its Breaking Point.

A. The AIM Act Supplies No Principle at All

to Constrain a Power So Vast as to

Permit Reordering an Entire Industry.

While this Court’s nondelegation cases may not

demand much, they do demand something—namely,

an “intelligible principle” to guide the exercise of the

powers Congress conveys. Mistretta, 488 U.S. at 372.

In A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495 (1935), for instance, the Court struck down a

law that authorized the President to approve “codes of

fair competition” for slaughterhouses and other

industries because it imposed “few restrictions” and

“set[] up no standards” aside from “general aims.” Id.

at 521-22, 541-42. And in Panama Refining Co. v.

Ryan, 293 U.S. 388 (1935), the Court struck down a

law empowering the President to bar the transport of

petroleum products because Congress “ha[d] declared

no policy, ha[d] established no standard, ha[d] laid

down no rule.” Id. at 430. The defining feature of the

laws in those cases is that they “failed to articulate

any policy or standard that would serve to confine the

discretion of the authorities to whom Congress had

delegated power.” Mistretta, 488 U.S. at 373 n.7.

The AIM Act is the rare statute that fails to clear

even that low bar. To be sure, the law embodies

Congress’ policy decision to phase down HFCs, and it

lays out how quickly that should occur. But when it

comes to the difficult policy question of who should get

to continue producing and importing HFCs over that

15-year period and beyond, Congress said next to

nothing. It authorized EPA to provide up to five years

of allowances for “essential uses” if it makes certain

findings. 42 U.S.C. §7675(e)(4)(B)(i). And it required

EPA to provide up to five years of allowances for a very

small group of application-specific uses.

Id.

§7675(e)(4)(B)(iv). But as to the remaining 98% of

allowances, Congress said nothing. Literally. There

is not one word in the AIM Act addressing the allimportant question of how to decide who should get

them.

Indeed, by EPA’s own telling, it is free to allocate

allowances under the AIM Act however it sees fit, so

long as its decisions are “reasonable and reasonably

explained”—i.e., consistent with the APA. Response to

Comments, supra, at 91-92. EPA could allocate

allowances only to existing companies in the

refrigerant industry, or only to new entrants; it could

allocate them to large companies, or to small

companies, or to companies with no foreign ties; it

could allocate allowances only to companies that

comply with its preferences on sensitive issues far

outside the agency’s purview, like how best to address

racism or sexism; it could allocate them to those that

can afford to pay EPA—or pay EPA most—for them.

In fact, EPA expressly considered methodologies along

many of those varied lines, and more. See 87 Fed. Reg.

at 66,380. And nothing stopped it from exploring that

vast universe of policy choices, because the statute

“provide[s] literally no guidance for the exercise of

discretion,” Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 474 (2001), as to how to dole out the

overwhelming majority of allowances, identifying no

“boundaries [EPA] cannot cross,” Consumers’ Rsch.,

606 U.S. at 680.3

If this Court’s nondelegation cases truly tolerated

that sorry state of affairs, then the nondelegation

doctrine would be a dead letter. While Congress

3 Indeed, notwithstanding that the AIM Act nowhere mentions

greenhouse gases or climate change, EPA repurposed the statute

as its signature “climate crisis” program, see 89 Fed. Reg. 82,682,

82,790 n.115 (Oct. 11, 2024)—even though the only legislative

purpose with any textual basis is the one expressed in the

statute’s title: to promote “American Innovation and

Manufacturing.” 42 U.S.C. §7675(a).

undoubtedly can “confer substantial discretion on

executive agencies to implement and enforce the

laws,” Gundy, 588 U.S. at 135 (plurality op.), it must

identify at least some “principle to which the … body

authorized … is directed to conform,” Mistretta, 488

U.S. at 372. At absolute minimum, Congress must

“provide[] sufficient standards to enable both ‘the

courts and the public [to] ascertain whether the

agency’ has followed the law.” Consumers’ Rsch., 606

U.S. at 673 (quoting Opp Cotton Mills, Inc. v. Adm’r of

Wage & Hour Div., 312 U.S. 126, 144 (1941)); accord

Yakus v. United States, 321 U.S. 414, 426 (1944)

(where “there is an absence of standards for the

guidance of the Administrator’s action, … it would be

impossible in a proper proceeding” for a court “to

ascertain whether the will of Congress has been

obeyed”). The AIM Act fails even that most basic test.

EPA’s efforts to resist that conclusion below just

confirm the constitutional transgression. The agency

did not and could not deny that Congress gave it no

instructions whatsoever as to how to allocate 98% of

the allowances that will dictate which companies may

continue to produce or import HFCs, or to what extent.

EPA instead argued that it is enough that Congress

made the decision to phase down HFCs through a capand-trade framework, and provided instructions as to

certain “essential uses” and specific applications. See

42 U.S.C. §7675(e)(4)(B)(i), (iv). Beyond that, exactly

whose production would be capped and to what extent

are just technical details that EPA claims Congress

was free to leave to an agency that is “not elected by

the people and [is] not accountable to the people for

[its] policy decisions.” Consumers’ Rsch., 606 U.S. at

708 (Kavanaugh, J., concurring). That argument is

wrong in both premise and conclusion.

At the outset, how to allocate the allowances the

AIM Act establishes is no minor technical detail.

Whether and to what extent private parties will be

permitted to continue producing or consuming HFCs

is a question of life or death for many in the refrigerant

industry, with the power to impact the livelihoods of

thousands of people and destroy commercial values of

many billions of dollars. See Frost v. Corp. Comm’n of

Okla., 278 U.S. 515, 534 (1929) (“the general right to

engage in a lawful business” is “part of the liberty of

the citizen”). Yet by EPA’s own telling, the paltry

guidance Congress supplied covers only 2% of

allowances—and only for the first five years of the

phasedown, at that—leaving the agency with

unfettered discretion as to the remaining 98%. See 87

Fed. Reg. at 61,316-17. That is no small matter. The

multibillion-dollar refrigerants industry permeates

many areas of the economy; HFCs are used in homes,

commercial buildings, industrial operations, cars, and

more. 86 Fed. Reg. at 27,155. The AIM Act thus gives

EPA boundless discretion to “restructure” an industry,

see West Virginia v. EPA, 597 U.S. 697, 724 (2022); id.

at 744 (Gorsuch, J., concurring), that “affect[s] the

entire national economy,” Consumers’ Rsch., 606 U.S.

at 673.

That Congress directed the agency to accomplish

that task does not make up for the fact that it failed to

instruct the agency how to do so. The constitutional

inquiry is specific to each delegated task; courts thus

must examine a statute “to figure out what task it

delegates and what instructions it provides” for that

task. Gundy, 588 U.S. at 136 (plurality op.) (emphasis

added). So it is not enough for Congress to decide how

quickly HFCs must be phased down; it must also

provide at least some guidance as to how the

allowances that remain available must be allocated.

After all, determining who will be shut out of a

multibillion-dollar market is precisely the sort of

“hard choice[] … which must be made by the elected

representatives of the people.” Indus. Union, 448 U.S.

at 687 (Rehnquist, J., concurring). Indeed, because

the power granted here is “such a significant power,”

Congress had to “supply more significant limits on

[EPA’s] discretion.” Consumers’ Rsch., 606 U.S. at 723

(Gorsuch, J., dissenting); see also Learning Res., 2026

WL 477534, at *41 (Thomas, J., dissenting) (“The

Constitution’s separation of powers forbids Congress

from delegating core legislative power to the

President.”).

Instead, Congress provided nothing, leaving EPA

free to choose among competing policy preferences as

varied as preserving market share, furthering racial

justice, advancing greenhouse gas priorities, or simply

exploiting its allocation power to raise money. If the

nondelegation doctrine means anything, it means that

Congress cannot do that.

B. The D.C. Circuit’s Effort to Salvage the

AIM Act Compounded the Separation-ofPowers Violation.

To its credit, the D.C. Circuit did not embrace

EPA’s argument that the nondelegation doctrine is so

toothless as to permit Congress to simply tell the

agency to allocate allowances, without providing any

constraints on how to do so. It instead tried to supply

that direction itself, insisting that Congress must

have meant to incorporate an “intelligible principle”

from an entirely different statutory provision that the

AIM Act never mentions. Far from solving the

constitutional problem, the Article III court’s effort to

do Congress’ Article I work for it, just created another

separation-of-powers violation.

According to the D.C. Circuit, the AIM Act does

impose “ascertainable and meaningful guideposts”

because it requires EPA to allocate allowances to

market participants according to their “historical

market share.” App.16. Market-share allocation may

well be “[a] natural way to allocate the allowances,”

App.16, and a statute that did require an agency to

follow that course would almost certainly pass muster

under this Court’s intelligible-principle precedents.

But the AIM Act is not such a statute; the text says

nothing whatsoever about allocating allowances based

on historical market share (or anything else). The

D.C. Circuit simply grafted a historical-market-share

requirement onto the statute in a transparent effort to

avoid the nondelegation problem that was staring it in

the face.

The court of appeals did not invent the idea of

market-share allocation out of whole cloth; Congress

did craft a market-share allocation regime in Title VI

of the Clean Air Act, which (like the AIM Act) also

grants EPA authority to allocate allowances. But that

is where the similarities between the two statutes end.

Whereas the AIM Act establishes a gradual cap-andtrade phasedown of HFCs, Title VI mandates a total

phaseout for certain substances. See 42 U.S.C.

§7671c(a). And, more to the point, Title VI provides

actual directions on how allowances are to be allocated

at each step of the phaseout: EPA must allocate them

based on the “quantity of [the] substance produced by

[the] person during the baseline year.” Id. §7671d(b).

Title VI thus plainly requires EPA to employ a

market-share approach (which likely explains why no

one ever challenged that program on nondelegation

grounds). The AIM Act just as plainly does not: It

contains no language comparable to the language in

Title VI, and it does not even mention that provision,

let alone expressly cross-reference or incorporate it.

That should have sufficed to foreclose any

argument that the AIM Act directs EPA to employ a

market-share approach (and it likely explains why

EPA never argued that it does). After all, courts

should not “read into statutes words that aren’t there,”

Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. 212, 215

(2020), especially when those words appear in other

statutes, as “differences in language like this convey

differences in meaning,” Henson v. Santander

Consumer USA Inc., 582 U.S. 79, 86 (2017). But the

argument is even worse than it appears at first blush,

as Congress expressly incorporated other aspects of

the Clean Air Act into the AIM Act. See 42 U.S.C.

§7675(k)(1)(C). This Court “do[es] not lightly assume

that Congress has omitted from its adopted text

requirements that it nonetheless intends to apply, and

[its] reluctance is even greater when Congress has

shown elsewhere in the same statute that it knows

how to make such a requirement manifest.” Jama v.

ICE, 543 U.S. 335, 341 (2005).

Notwithstanding all that, the D.C. Circuit decided

to read Title VI’s market-share-allocation provision

into the AIM Act anyway, claiming that Congress

must have “intended for the EPA to model its cap-andtrade program on” that distinct statutory regime

wholesale. App.15. The sum total of evidence from

which the court purported to divine that implicit

intent was:

(1) a few statements during a

subcommittee hearing noting that the AIM Act “builds

upon [Congress’] previous experience” in Title VI,

which “proved an able vehicle to foster an orderly,

market-based phasedown”; (2) both statutes “used

‘baseline’ years to set caps and [reduction] schedules”;

(3) both statutes direct “EPA to allocate allowances to

accomplish the [phasedown] ‘in accordance with’ each

controlling Act”; and (4) the AIM Act expressly

incorporates other aspects of the Clean Air Act.

App.17.

As for the first, it should go without saying that

“legislative history is not the law”: Once Congress

enacts a statute, courts “do not inquire what the

legislature meant; … only what the statute means.”

Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018). As

for the second, the fact that both statutes use the same

approach to determine the number of allowances does

not solve the problem that only Title VI (not the AIM

Act) directs the agency how to allocate them. As for

the third, Congress did not instruct “EPA to allocate

allowances … ‘in accordance with’ each controlling

Act.” App.17. It instructed EPA to “issue a final

rule … phasing down the production of regulated

substances in the United States through an allowance

allocation and trading program in accordance with

this section.” 42 U.S.C. §7675(e)(3). And contra

App.17-18, nowhere in “this section” did Congress

provide any instruction as to how to allocate the vast

majority of allowances. Finally, the notion that

Congress’ express incorporation of some aspects of the

Clean Air Act evinces its implicit intention to

incorporate Title VI jot and tittle turns bedrock rules

of statutory construction on their head.

At bottom, the D.C. Circuit “graft[ed] something

on the statute that is not there.” Smietanka v. First

Tr. & Sav. Bank, 257 U.S. 602, 606 (1922). Indeed, it

grafted onto the statute something that not even EPA

perceived was there and that does not accord with how

EPA actually exercised its (unbounded) discretion.

See pp.8-10, 14, supra.

Far from solving the

constitutional problem, that exacerbated it.

“[A]lthough this Court will often strain to construe

legislation so as to save it against constitutional

attack, it must not and will not carry this to the point

of … judicially rewriting it.” CFTC v. Schor, 478 U.S.

833, 841 (1986) (quoting Aptheker v. Sec’y of State, 378

U.S. 500, 515 (1964)).

After all, constitutional

avoidance “does not give a court the prerogative to

ignore the legislative will in order to avoid

constitutional adjudication.”

Id.

When “the

legislative will” transgresses constitutional bounds,

the judiciary’s job is to enforce them.

That rule applies with especial force when it

comes to statutes that run afoul of the nondelegation

doctrine, as the whole point of that doctrine is to

ensure that Congress makes the “hard choices …

which must be made by the elected representatives of

the people.” Indus. Union, 448 U.S. at 687 (Rehnquist,

J., concurring). When courts step in and make the

hard choices that Congress did not, all they do is layer

an Article III transgression on top of the Article I

transgression. See Whitman, 531 U.S. at 473 (“[T]he

prescription of the standard that Congress had

omitted—would itself be an exercise of the forbidden

legislative authority.”). Two separation-of-powers

wrongs do not make a constitutional right.

II. This Case Provides An Excellent Vehicle To

Explore And/Or Revisit The Contours Of The

Nondelegation Doctrine.

A. The AIM Act Cannot Plausibly Survive

Any Viable Version of the IntelligiblePrinciple Test.

As the foregoing should suffice to make clear,

there can be no serious doubt that the AIM Act

unconstitutionally grants EPA unfettered discretion

to determine the private rights—and even continued

existence—of businesses in a critical industry that

pervades multiple sectors of the national economy.

That unbounded delegation fails to clear even the low

bar of the intelligible-principle test. Indeed, if the

abject lack of direction in the AIM Act does not violate

that test, then it is hard to see what ever could.

The need for this Court to step in and say so is

particularly acute. Many have questioned whether

the intelligible-principle test is up to the task of

preserving the Constitution’s separation of powers

and enforcing Article I’s Vesting Clause, as it “has

historically not packed much punch in constricting

Congress’s authority to delegate.” Consumers’ Rsch.,

606 U.S. at 705 (Kavanaugh, J., concurring). The

original formulation comes from J.W. Hampton, Jr. &

Co. v. United States, 276 U.S. 394 (1928), but “it’s

undeniable that the ‘intelligible principle’ remark

eventually began to take on a life of its own.” Gundy,

588 U.S. at 163 (Gorsuch, J., dissenting). What began

as a requirement that Congress set an actual “policy,”

“plan,” and “standard” to which an agency was

“directed to conform,” J.W. Hampton, 276 U.S. at 405,

409, has so transformed that “even the vaguest, most

incoherent set of mutually incompatible goals can

satisfy the [modern] ‘intelligible principle’ test.”

Ronald A. Cass, Delegation Reconsidered: A

Delegation Doctrine for the Modern Administrative

State, 40 Harv. J.L. & Pub. Pol’y 147, 167-68 (2017);

see also Philip Hamburger, Nondelegation Blues, 91

Geo. Wash. L. Rev. 1083, 1091 (2023) (“[T]he

nondelegation doctrine serves as little more than an

open gate for the delegation of legislative power—even

if the sign above the gate declares the opposite.”);

David Schoenbrod, The Delegation Doctrine: Could the

Court Give It Substance?, 83 Mich. L. Rev. 1223, 1226

(1985) (lamenting that, while the “delegation doctrine

is ritualistically invoked,” it “fails to check agency

discretion or to ensure electoral accountability”).

In short, “today,” the “nondelegation doctrine” is

“recognize[d]” “almost always in the breach.” David J.

Barron & Elena Kagan, Chevron’s Nondelegation

Doctrine, 2001 Sup. Ct. Rev. 201, 201 (2001). Indeed,

the Tenth Circuit has gone so far as to posit that, “[i]f

there is anything clear or obvious about the

nondelegation doctrine, it is that, viewed through its

lens, virtually any statute will be deemed valid.”

United States v. Rickett, 535 F.App’x 668, 675 (10th

Cir. 2013).

This case supplies an excellent vehicle for the

Court to ensure that the intelligible-principle test does

not wither on the vine. There is no dispute that

Congress did in fact grant to EPA the power to allocate

allowances. That delegation does not implicate any

tricky issues about overlapping Article I and Article II

powers, such as “the national security and foreign

policy realms.” Consumers’ Rsch., 606 U.S. at 706

(Kavanaugh, J., concurring); cf. Learning Res., 2026

WL 477534, at *41-44 (Thomas, J., dissenting). And

unlike in some recent petitions asking the Court to

wrestle over whether a particular statutory principle

is sufficiently intelligible, see, e.g., Allstates Refractory

Contractors, LLC v. Su, 144 S.Ct. 2490 (2024), the

AIM Act does not direct EPA to allocate allowances

according to any principle—not even (for instance) as

the agency deems “reasonably necessary or

appropriate,” “fair and equitable,” or in the “public

interest.” The question presented here is more

fundamental: Can Congress decline to provide any

guiding principle whatsoever? The bare minimum of

the intelligible-principle test must answer that

question in the negative.

That the D.C. Circuit concluded otherwise only by

supplying the intelligible principle Congress did not

underscores the need for this Court’s review. The

intelligible-principle test is already sufficiently

daunting for challengers to deter many from pressing

nondelegation claims.

There will be even less

incentive if parties must do so at the risk that an

Article III court will simply read into the statute an

intelligible principle that even the agency did not

perceive, let alone embrace. That makes it imperative

for this Court to step in and make clear that when

Congress fails to supply the constraints the

Constitution demands, the courts’ job is to tell

Congress to do its job, not to do Congress’ job for it.

B. If the AIM Act Does Not Violate the

Intelligible-Principle Test, Then the

Time Has Come to Reconsider It.

If even the AIM Act does not flout the intelligibleprinciple test, then the Court should admit that test is

“effectively a dead letter,” Gary Lawson, Delegation

and Original Meaning, 88 Va. L. Rev. 327, 329 (2002),

and reform it, rather than leave lower courts

floundering to try to apply it. Many have implored

this Court to revisit, or at least add more contours to,

the test. See, e.g., Mayfield v. U.S. Dep’t of Lab., 117

F.4th 611, 620 n.7 (5th Cir. 2024) (“The current

formulation of the nondelegation doctrine has been

called into serious question.”); Tiger Lily, LLC v. HUD,

5 F.4th 666, 674 (6th Cir. 2021) (Thapar, J.,

concurring) (“[T]he Supreme Court should consider

breathing new life into the doctrine.”); Consumers’

Rsch., Cause Based Com., Inc. v. FCC, 88 F.4th 917,

932 (11th Cir. 2023) (Newsom, J., concurring) (“I’m not

at all ‘convinced that the intelligible principle doctrine

serves to prevent all cessions of legislative power.’”).

And at least five members of this Court have “urged

the Court to reconsider its approach” entirely.

Consumers’ Rsch., 606 U.S. at 720 (Gorsuch, J.,

dissenting); see also, e.g., Paul, 589 U.S. at 1087

(Kavanaugh, J., respecting the denial of certiorari);

p.4, supra.

As those Justices and others have explained, the

intelligible-principle test “has no basis in the original

meaning of the Constitution, in history, or even in the

decision from which it was plucked.” Gundy, 588 U.S.

at 164 (Gorsuch, J., dissenting); see also Whitman, 531

U.S. at 487 (Thomas, J., concurring) (“[T]he

Constitution does not speak of ‘intelligible

principles.’”). A wealth of scholarship exploring the

original meaning of Article I’s Vesting Clause has

emerged over the past five years. Some argue that it

supports a broad power to delegate, see, e.g., Julian

Davis Mortenson & Nicholas Bagley, Delegation at the

Founding, 121 Colum. L. Rev. 277, 279-80 (2021);

others argue that it supports only a narrow one, see,

e.g., Ilan Wurman, Nondelegation at the Founding,

130 Yale L.J. 1490, 1554-56 (2021); Philip Hamburger,

Delegating or Divesting?, 115 Nw. U.L. Rev. Online 88

(2020). But no one suggests that history reveals any

meaningful support for the intelligible-principle test.

And there is serious doubt that the “intelligible

principle doctrine serves to prevent all cessions of

legislative power.”

Whitman, 531 U.S. at 487

(Thomas, J., concurring).

That is not a tolerable state of affairs. The very

first clause of the very first section of the very first

article of the Constitution declares that “[a]ll

legislative Powers herein granted shall be vested in a

Congress of the United States.” U.S. Const. art. I, §1.

By vesting core legislative power in one branch, the

Constitution precludes its transfer to another branch.

This Court has recognized as much from the start.

Two centuries ago, Chief Justice Marshall opined that

Congress may not “delegate … powers which are

strictly and exclusively legislative.” Wayman v.

Southard, 23 U.S. (10 Wheat.) 1, 20 (1825). Nearly

one century later, this Court underscored that “it is a

breach of the national fundamental law if Congress

gives up its legislative power and transfers it to the

President.” J.W. Hampton, 276 U.S. at 406. In the

intervening years, this Court reiterated that

“Congress generally cannot delegate its legislative

power to another Branch.” Mistretta, 488 U.S. at 37172. And just this past Term, this Court again

proclaimed that legislative power “belongs to the

legislative branch, and to no other.” Consumers’

Rsch., 606 U.S. at 672; accord, e.g., Learning Res.,

2026 WL 477534, at *42 (Thomas, J., dissenting) (“The

Legislative Vesting Clause grants Congress alone the

federal legislative power.… It follows that those

federal legislative powers cannot be exercised by

anyone else, including the President.”).

That fundamental principle is not just necessary

to protect the legislative branch from intrusion by

another branch of government. “[T]he structural

principles secured by the separation of powers protect

the individual as well.” Dep’t of Transp. v. Ass’n of Am.

R.R., 575 U.S. 43, 55 (2015) (quoting Bond v. United

States, 564 U.S. 211, 222 (2011)). The Constitution

makes lawmaking difficult by design. “The framers

believed that the power to make new laws regulating

private conduct was a grave one that could, if not

properly checked, pose a serious threat to individual

liberty.” West Virginia, 597 U.S. at 738 (Gorsuch, J.,

concurring). A leviathan that must manage an

obstacle course before it can strike a blow against

liberty is less of a threat to the people than one that

can maneuver unimpeded.

The Framers designed “Congress [to be] the

[branch] most responsive to the will of the people …

for a reason: Congress wields the formidable power of

‘prescrib[ing] the rules by which the duties and rights

of every citizen are to be regulated.’ If legislators

misused this power, the people could respond, and

respond swiftly.” Tiger Lily, 5 F.4th at 674 (Thapar,

J., concurring) (quoting The Federalist No. 78, at 465

(Hamilton) (Clinton Rossiter ed., 1961)).

But

“Congress has an incentive to insulate itself from the

consequences of hard choices” by “transfer[ring] …

hard choices from Congress to” an administrative

agency, whose work takes place behind closed doors

and whose actions obfuscate rather than clarify lines

of accountability. Id. The nondelegation principle

thus guards against not only interbranch incursions,

but a “government by bureaucracy supplanting

government by the people.” Antonin Scalia, A Note on

the Benzene Case, 4 AEI J. on Gov’t & Soc’y 25, 27

(1980). In short, “the purpose of the nondelegation

doctrine is not to serve Congress, but to preserve

liberty.” Texas v. Rettig, 993 F.3d 408, 409 (5th Cir.

2021) (Ho, J., dissenting from denial of rehearing en

banc).

If the Court is not willing to breathe even the

smallest resuscitating breath into the intelligibleprinciple test, then it should take this opportunity to

inter the test for good and craft a better one. To be

sure, drawing the line between permissible and

impermissible delegations may be difficult. “But the

inherent difficulty of line-drawing is no excuse for not

enforcing the Constitution.” Ass’n of Am. R.R., 575

U.S. at 61 (Alito, J. concurring). And all agree on “the

constitutional rule that Congress may not divest itself

of its legislative power by transferring that power to

an executive agency.” Gundy, 588 U.S. at 167

(Gorsuch, J., dissenting).

Furthermore, the Court has ample material to

work with in determining how best to enforce that

rule. Members of this Court have already laid out

“important guiding principles” for establishing a

delegation doctrine more firmly grounded in the

Constitution and our Nation’s historical traditions.

Id. at 157-58 (Gorsuch, J., dissenting). And recent

scholarship has supplemented and built on those

principles.

See, e.g., Wurman, supra at 1554;

Hamburger, supra at 1088-89; Ronald A. Cass, Fixing

Deference: Delegation, Discretion, and Deference

Under Separate Powers, 17 NYU J.L. & Liberty 1, 43

(2023); Br. of Professor Chad Squitieri, FCC v.

Consumers’ Rsch., No. 24-354 (U.S. Feb. 18, 2025); The

Administrative State Before the Supreme Court:

Perspectives on the Nondelegation Doctrine, Am.

Enter. Inst. (Peter J. Wallison & John Yoo eds., 2022).

As currently constituted, the intelligible-principle test

“has allowed the legislative branch to avoid hard

choices.” Schoenbrod, supra, at 1225. This Court

should not compound that problem by refusing to do

the hard work of supplying more meaningful

guardrails.

Shortly after the Constitution was written, James

Madison cautioned that, “[i]f nothing more were

required, in exercising a legislative trust, than a

general conveyance of authority, without laying down

any precise rules, by which the authority conveyed,

should be carried into effect; it would follow, that the

whole power of legislation might be transferred by the

legislature from itself, and proclamations might

become substitutes for laws.” James Madison, The

Report of 1800, National Archives (Jan. 7, 1800). The

Court should grant certiorari and ensure that the

courts remain a true bulwark against congressional

devolution of our constitutional order.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari.

Respectfully submitted,

ZHONETTE M. BROWN

KAITLYN D. SCHIRALDI

MARK S. CHENOWETH

NEW CIVIL LIBERTIES

ALLIANCE

4250 N. Fairfax Dr.

Suite 300

Arlington, VA 22203

PAUL D. CLEMENT

ERIN E. MURPHY

Counsel of Record

MATTHEW D. ROWEN

ILAN J. POSNER

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

erin.murphy@clementmurphy.com

ERIN MORROW HAWLEY

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy

Lansdowne, VA 20176

DAVID M. WILLIAMSON

WILLIAMSON LAW

+ POLICY, PLLC

1001 Connecticut Ave. NW

Suite 612

Washington, DC 20036

Counsel for Petitioner

February 27, 2026

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals

for the District of Columbia Circuit, IGas

Holdings, Inc. v. EPA, No. 23-1261 (Aug.

1, 2025)......................................................... App-1

Appendix B

Order, United States Court of Appeals for

the District of Columbia Circuit, IGas

Holdings v. EPA, No. 23-1261 (Sept. 30,

2025)........................................................... App-28

Appendix C

Relevant Constitutional and Statutory

Provisions................................................... App-30

U.S. Const. art. I, §1 ........................... App-30

42 U.S.C. §7675 .................................. App-30

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

________________

Consolidated with

No. 23-1261

No. 23-1263

________________

IGAS HOLDINGS, INC., et al.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

AIR-CONDITIONING, HEATING, AND REFRIGERATION

INSTITUTE AND ALLIANCE FOR RESPONSIBLE

ATMOSPHERIC POLICY,

Intervenors.

________________

Argued: Oct. 8, 2024

Decided: Aug. 1, 2025

________________

Before: Pillard, Pan, and Garcia, Circuit Judges.

________________

OPINION

________________

PAN, Circuit Judge: Hydrofluorocarbons (HFCs)

are synthetic cooling agents used in a variety of

applications, including refrigeration and air

conditioning. Despite their utility, HFCs are

extremely potent greenhouse gases that increase

global warming. To address that problem, Congress

App-2

passed the American Innovation and Manufacturing

(AIM) Act of 2020. The AIM Act requires an 85 percent

reduction in U.S. production and consumption of

HFCs by 2036. Congress specified that the HFC

phasedown would be accomplished with a cap-andtrade program, and it tasked the Environmental

Protection Agency (EPA) with administering that

program.

In 2021, the EPA issued a rule to implement the

cap-and-trade program for the years 2022 and 2023

(the Framework Rule). The program required the EPA

to calculate and allocate “allowances” that authorized

industry members to produce and consume HFCs. The

EPA allocated the allowances to market participants

according to their historic market share, and

determined the market share of each participant

based on its production-and-consumption activities in

the years 2011 to 2019. Subsequently, the EPA issued

a new rule to set the allocation methodology for the

years 2024 through 2028 (the 2024 Rule). In the new

rule, the EPA again allocated allowances to market

participants according to their historic market share,

and again used data from the years 2011 to 2019 to

calculate that market share.

We now consider two challenges to the 2024 Rule.

Petitioner RMS of Georgia, LLC (which goes by its

trade name, “Choice”) argues that Congress violated

the nondelegation doctrine when it granted the EPA

authority to allocate use allowances, and that the EPA

unconstitutionally exercised legislative power when it

promulgated the 2024 Rule. Petitioner IGas Holdings,

Inc. (IGas) argues that the EPA’s exclusion of 2020

App-3

data from its market-share calculations was arbitrary

and capricious. We deny both petitions for review.

The 2024 Rule is not the first of its kind. Congress

has employed cap-and-trade programs to phase out

industrial use of other hazardous refrigerants,

including

chlorofluorocarbons

(CFCs)

and

hydrochlorofluorocarbons

(HCFCs).

Those

predecessor programs are the model for the one at

issue in this case.

Both CFCs and HCFCs are ozone-depleting

substances. In 1986, the United States agreed to

regulate such substances when it ratified the 1985

Vienna Convention for the Protection of the Ozone

Layer. The subsequent 1987 Montreal Protocol,

ratified by the United States in 1988, set specific

targets for the global elimination of CFCs and HCFCs.

To make good on those treaty obligations, Congress

enacted Title VI of the Clean Air Act, 42 U.S.C. § 7671

et seq., which effectuated a phaseout of CFC- and

HCFC-emissions in the United States. Title VI created

a cap-and-trade program that (1) set limits (caps) on

the total level of emissions for CFCs and HCFCs,

(2) authorized the EPA to issue emissions allowances

to market participants (not to exceed the overall cap),

(3) allowed companies to sell (trade) their unused

allowances, and (4) made it unlawful for anyone to

emit the regulated substances without having a

corresponding allowance. See id. §§ 7671c(a)-(c),

7671d(a)-(c), 7671f. Today, CFCs have been

eliminated, and new production and importation of

most HCFCs were phased out as of 2020 (although

App-4

some HCFCs are still used in existing air conditioners

and refrigeration equipment).

HFCs have proven to be an effective replacement

for the phased-out refrigerants. With the increased

global use of air-conditioning and refrigeration, the

demand for HFCs also has surged. Although HFCs do

not deplete the ozone layer, they present their own

problem: HFCs are potent greenhouse gases with a

relative climatic impact “that can be hundreds to

thousands of times that of carbon dioxide.” J.A. 341.

Thus, in 2016, signatories of the Montreal Protocol

passed the Kigali Amendment, which mandates

reductions in the production and consumption of

HFCs. Although the United States did not ratify the

Amendment until 2022, Congress passed the AIM Act

to address HFCs in 2020.

The AIM Act, 42 U.S.C. § 7675, mandates an 85

percent phasedown of HFC production and

consumption by 2036. To accomplish that goal, the Act

employs a cap-and-trade program like those that were

used to phase out CFCs and HCFCs. Subsection (e) of

the AIM Act creates a program that schedules the

HFC phasedown and authorizes the allocation of

production-and-consumption allowances that are

capped and traded. Subsection (e)(1) sets productionand-consumption baselines according to specific

formulas,1 while subsection (e)(2) sets a timeline for

1 The statute directs the EPA to set the baselines as the average

annual quantity of all regulated substances produced or

consumed from 2011 to 2013, plus the sum of 15 percent of the

production or consumption level of HCFCs in 1989 and 0.42

percent of the production or consumption level of CFCs in 1989.

See 42 U.S.C. § 7576(e)(1)(B)-(D).

App-5

gradually reducing HFC use as a “capped” percentage

of the baseline. Subsection (e)(3) directs the EPA to

allocate the allowances, which then can be traded. The

program accomplishes the targeted reductions in HFC

production and consumption by lowering the number

of available allowances each year.

Specifically, under subsection (e)(2)(C), HFC

production and consumption is capped at 90 percent of

the baseline for the years 2020 to 2023; at 60 percent

of the baseline for the years 2024 to 2028; at 30

percent of the baseline for the years 2029 to 2033; at

20 percent of the baseline for the years 2034 to 2035;

and, finally, at 15 percent of the baseline by the year

2036. See 42 U.S.C. § 7675(e)(2)(C).

For each year, the EPA must “ensure that the

annual quantity of all regulated substances produced

or consumed in the United States does not exceed” the

targets

subsection

(e)(2)(C).

U.S.C.

§ 7675(e)(2)(B). To accomplish that task, the EPA

“shall use” the listed targets “to determine the

quantity of allowances” for each year. Id.

§ 7675(e)(2)(D)(i). The AIM Act describes an

“allowance” as “a limited authorization for the

production or consumption of a regulated substance.”

Id. § 7675(e)(2)(D)(ii)(I)(bb). Under subsection (e)(2),

“no person shall” produce or consume “a quantity of a

regulated substance without a corresponding quantity

of [production-and-consumption] allowances.” Id.

§ 7675(e)(2)(A).

Subsection (e)(3) of the Act gives the EPA

authority to “issue a final rule” that accomplishes the

following:

App-6

(A) phasing down the production of regulated

substances in the United States through an

allowance allocation and trading program in

accordance with this section; and

(B) phasing down the consumption of

regulated substances in the United States

through an allowance allocation and trading

program in accordance with the schedule

under paragraph (2)(C) . . . .

42 U.S.C. § 7675(e)(3).

Finally, Congress provided for certain exceptions

and also mandated that the EPA initially “allocate the

full quantity of allowances necessary” for a small class

of “essential uses.” 42 U.S.C. § 7675(e)(4)(B)(iv).

In 2021, the EPA promulgated its Framework

Rule, which implements subsection (e) of the AIM Act

for the years 2022 and 2023. See Phasedown of

Hydrofluorocarbons: Establishing the Allowance

Allocation and Trading Program Under the [AIM] Act

(Framework Rule), 86 Fed. Reg. 55116 (Oct. 5, 2021).

As directed by the statute, the Framework Rule

calculated

HFC

production-and-consumption

baselines under subsection (e)(1) and then determined

the quantity of allowances that would be available in

2022 and 2023 under subsection (e)(2)—i.e., the

quantity that would achieve 90 percent of the baseline

level of production and consumption.

The Framework Rule also established an

allocation plan for the 2022-2023 allowances. First,

the EPA decided that allowances would be issued to

entities that had historical production-and-

App-7

consumption data and that were still active in 2020,

with case-by-case exceptions for companies with

pandemic-related disruptions in 2020. Next, the EPA

allocated the available allowances to those entities

according to their historical market share. To

calculate an entity’s market share, the EPA looked to

that entity’s three highest years of production or

consumption activity between the years 2011 and

2019. It then averaged the data from those three high

years and divided that number by the sum of all

entities’ high-three averages. Finally, the EPA

multiplied that number by the total number of

allowances in the pool (which was 90 percent of the

baseline amount). The EPA said it would reconsider

this methodology before the next step of the

phasedown, in 2024.

Subsequently, the EPA proposed an allocation

methodology for HFC allowances for the years 2024

through 2028, the period for which subsection (e)(2)

capped production and consumption at 60 percent of

the baseline. After calculating the quantity of

allowances available, the EPA proposed “to continue

using historic production and consumption data from

2011 to 2019” to allocate allowances by market share,

in part to “minimize disruption to the market in 2024,”

and in part because the “EPA ha[d] conducted

multiple rounds of outreach and review” on that

dataset. Phasedown of Hydrofluorocarbons: Allowance

Allocation Methodology for 2024 and Later Years

(Proposed Rule), 87 Fed. Reg. 66372, 66377-78 (Nov. 3,

2022).

App-8

The EPA noted, however, that it was “considering

whether to include more recent data” to reflect the

current state of the HFC production and import

market. Proposed Rule, 87 Fed. Reg. at 66378. The

EPA therefore “request[ed] comment on whether to

expand the range of years to use to develop each

allowance holder’s high three-year average to include

2020 and 2021.” Id. But the agency previewed its

concerns about using the more recent data, stating:

“[T]he Agency recognizes that production and

importation of HFCs in 2020 and 2021 were likely

influenced by external factors such as the COVID-19

pandemic, and supply chain disruptions. In addition,

EPA is concerned that data from 2020 and 2021 could

be distorted due to an entity’s awareness that the AIM

Act may be, or had been, passed,” leading to

stockpiling. Id. The EPA further worried that

“[e]xpanding the range of years could also significantly

change each entity’s market share, which could

disrupt the market and negatively affect ongoing

adjustments to the HFC Allocation Program that have

taken place in 2022 and 2023.” Id. Finally, the EPA

said it was “unaware of any environmental benefit

associated with changing the years used to determine

allowance allocations.” Id.

Petitioners Choice and IGas each submitted

comments on the proposed rule. Choice is a small

business that reclaims HFCs and invents HFC blends.

Its comments argued that subsection (e) of the AIM

Act unconstitutionally delegated legislative power to

the EPA. IGas is a participant in refrigerant

aftermarkets for existing HFC-containing equipment.

IGas’s comments urged the EPA to include data from

the years 2020 and 2021 in its allocation methodology

App-9

because, in its view, the EPA’s focus on years 2011 to

2019 ignored the aftermarket’s growth in more recent

years and favored companies that were not involved in

the aftermarket.

In its final 2024 Rule setting the allocation

methodology for the years 2024 to 2028, the EPA

continued to rely on market-share data from 2011 to

2019 and thus excluded data from 2020 and 2021. See

Phasedown

Hydrofluorocarbons:

Allowance

Allocation Methodology for 2024 and Later Years

(2024 Rule), 88 Fed. Reg. 46836, 46842 (July 20, 2023).

The EPA explained that the data from 2020 and 2021

were not representative of the typical market due to

the pandemic, had not been as thoroughly vetted as

the 2011 to 2019 dataset, and could cause market

disruptions by drastically changing entities’ market

share from what had been implemented under the

Framework Rule.

Choice and IGas timely petitioned for review of

the 2024 Rule, and their appeals were consolidated.

Two trade associations whose members are regulated

HFC importers and producers—the Air-Conditioning,

Heating, and Refrigeration Institute, and the Alliance

for Responsible Atmospheric Policy—intervened as

respondents.2

2 Article III standing is a prerequisite to intervention, even as

a respondent. See Deutsche Bank Nat’l Tr. Co. v. FDIC, 717 F.3d

189, 193 (D.C. Cir. 2013). But see Inst’l Shareholder Servs. v.

SEC, -- F.4th --, 2025 WL 1802786, at *4 n.3 (D.C. Cir. July 1,

2025) (recognizing tension with cases holding that “intervenors

that seek the same relief sought by at least one existing party

need not” show standing (citing Little Sisters of the Poor Saints

App-10

II.

Petitioner Choice argues that the AIM Act

unconstitutionally delegates legislative power to the

EPA by granting the agency “unconstrained

authority” to allocate HFC allowances. Choice Br. 1.

Choice asks us to vacate the EPA’s 2024 Rule because

it is “contrary to constitutional right, power, privilege,

or immunity.” 42 U.S.C. § 7607(d)(9)(B) (made

applicable to the AIM Act through 42 U.S.C.

§ 7675(k)(1)(C)).

Amicus National Resources Defense Council

(NRDC) argues that Choice lacks standing to

challenge the EPA’s 2024 Rule. We disagree. Choice

imports HFCs that are regulated by the EPA under

the AIM Act, and Choice receives allowances for that

import activity. Choice therefore “has standing to

challenge an allegedly illegal statute or rule under

which it is regulated.” State Nat’l Bank of Big Spring

v. Lew, 795 F.3d 48, 53 (D.C. Cir. 2015).

NRDC contends, however, that Choice has not

established standing because it has not alleged that

its injury will be redressed by the court striking down

the only section of the AIM Act that Choice challenges:

subsection (e)(3), which provides for the allocation of

Peter & Paul Home v. Pennsylvania, 591 U.S. 657, 674 n.6

(2020))). Although no party contests the Intervenors’ standing,

“we have an independent obligation to assure ourselves that

standing exists.” Pub. Emps. for Env’t Resp. v. EPA, 77 F.4th 899,

912 (D.C. Cir. 2023) (cleaned up). Because the Intervenors are

both trade associations whose members are regulated HFC

importers and producers, they have associational standing. See

Fund Democracy, LLC v. SEC, 278 F.3d 21, 25 (D.C. Cir. 2002).

App-11

allowances. According to NRDC, if subsection (e)(3) is

vacated and the EPA thereby loses its authority to

allocate allowances, then no entity could produce or

consume HFCs at all because subsection (e)(2)

prohibits the production and consumption of HFCs

without a corresponding allowance. NRDC reasons

that the resulting inability to import HFCs would

exacerbate, not redress, Choice’s injury of having its

“market activity limited” and its “market share . . .

reduced.” Choice Br. 15, 18.

We disagree with NRDC’s assumption that

subsection (e)(2) would remain operative if we

invalidated subsection (e)(3). An unconstitutional

provision is “presumed severable” from the statute

only “if what remains after severance is fully operative

as a law.” INS v. Chadha, 462 U.S. 919, 934 (1983)

(cleaned up). Any presumption of severability is

overcome where “it is evident that the Legislature

would not have enacted those provisions which are

within its power, independently of that which is not.”

Buckley v. Valeo, 424 U.S. 1, 108 (1976) (cleaned up);

see also Regan v. Time, Inc., 468 U.S. 641, 653 (1984)

(“Whether an unconstitutional provision is severable

from the remainder of the statute in which it appears

is largely a question of legislative intent[.]”).

In our view, the interrelated subparts of

subsection (e) are not severable. Subsection (e)(2)

prohibits HFC production and consumption without a

corresponding allowance. That provision cannot be

“fully operative as a law” without subsection (e)(3)’s

mechanism for allocating allowances. Chadha, 462

U.S. at 934 (cleaned up). Congress plainly would not

have enacted the remainder of subsection (e) if there

App-12

were no way to allocate HFC allowances because the

entire cap-and-trade program depends on the

availability of allowances.

Accordingly, we are satisfied that Choice has

standing to challenge the constitutionality of

subsection (e)(3).

Turning to the merits, we hold that the AIM Act

does not unconstitutionally delegate legislative power

because it sufficiently constrains the EPA’s discretion

to allocate HFC allowances.

The Constitution vests “[a]ll legislative Powers

herein granted . . . in a Congress of the United

States.” U.S. Const. art. I, § 1. “This text permits no

delegation of those powers[.]” Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 472 (2001). That does

not mean, however, that Congress may not seek

“assistance from another branch.” J.W. Hampton, Jr.,

& Co. v. United States, 276 U.S. 394, 406 (1928). “[I]n

particular, [Congress] may confer substantial

discretion on executive agencies to implement and

enforce the laws.” Gundy v. United States, 588 U.S.

128, 135 (2019) (plurality opinion). The Constitution

is not offended when Congress “vest[s] discretion in”

agencies “to make public regulations interpreting a

statute and directing the details of its execution,” so

long as that discretion is “within defined limits.” J.W.

Hampton, 276 U.S. at 406; Wayman v. Southard, 23

U.S. (10 Wheat.) 1, 46 (1825) (Marshall, C.J.) (“[T]he

maker of the law may commit something to the

discretion of the other departments[.]”); Am. Trucking,

531 U.S. at 475 (“A certain degree of discretion . . .

App-13

inheres in most executive . . . action.” (cleaned up)); cf.

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394

(2024) (“In a case involving an agency, of course, the

statute’s meaning may well be that the agency is

authorized to exercise a degree of discretion.”).

“Once it is conceded, as it must be,” that some

discretion—and “even some judgments involving

policy considerations”—“must be left to the officers

executing the law,” the remaining debate is “not over

a point of principle but over a question of degree.”

Mistretta v. United States, 488 U.S. 361, 415 (1989)

(Scalia, J., dissenting). The Court has said that “the

degree of agency discretion that is acceptable varies

according to the scope of the power congressionally

conferred.” Am. Trucking, 531 U.S. at 475. “The

guidance needed is greater . . . when an agency action

will affect the entire national economy than when it

addresses a narrow, technical issue[.]” FCC v.

Consumers’ Rsch., No. 24-354, slip op. at 11 (June 27,

2025) (cleaned up). Still, “even in sweeping regulatory

schemes,” the nondelegation doctrine has “never

demanded . . . that statutes provide a determinate

criterion.” Am. Trucking, 531 U.S. at 475 (cleaned up).

The nondelegation analysis boils down to this:

When “confer[ring] decisionmaking authority upon

agencies,” Congress “must lay down by legislative act

an intelligible principle to which the person or body

authorized to act is directed to conform.” Am.

Trucking, 531 U.S. at 472 (cleaned up). When setting

forth an “intelligible principle,” Congress is not

required to “prescribe detailed rules” but rather to

“clearly delineate[] the general policy, the public

agency which is to apply it, and the boundaries of this

App-14

delegated authority.” Am. Power & Light Co. v. SEC,

329 U.S. 90, 105 (1946). If a federal law contains such

an intelligible principle to guide an agency’s actions,

then there is no nondelegation problem: The law

permissibly grants discretion to an agency rather than

unconstitutionally transfers legislative power. See

Consumers’ Rsch., slip op. at 6 (Kavanaugh, J.,

concurring) (“[W]hen implementing legislation that

contains an intelligible principle, the President is

exercising executive power.”).

Consistent with the foregoing principles, the

Supreme Court has invalidated only two federal laws

for violating the nondelegation doctrine, both times in

1935, and “in each case because Congress had failed to

articulate any policy or standard to confine

discretion.” Gundy, 588 U.S. at 146 (cleaned up)

(emphasis in original); see also A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495 (1935);

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

Since then, the Court has “over and over upheld even

very broad delegations.” Gundy, 588 U.S. at 146. To

name a few: The Court has upheld laws authorizing

agencies to regulate broadcast licensing as “public

interest, convenience, or necessity” requires, Nat’l

Broad. Co. v. United States, 319 U.S. 190, 225-26

(1943); set “just and reasonable” rates for natural gas,

Fed. Power Comm’n v. Hope Nat. Gas Co., 320 U.S.

591, 600 (1944); and set air-quality standards that are

“requisite to protect the public health,” Am. Trucking,

531 U.S. at 472-76. In so doing, the Court has affirmed

and reaffirmed that the governing standards for a

permissible delegation are “not demanding.” Gundy,

588 U.S. at 146.

App-15

Against that backdrop, the AIM Act easily passes

muster. Congress enacted a detailed program for

capping and trading HFC allowances, in which the

EPA has discretion to decide how to allocate the

allowances. Congress provided ample direction to

guide the EPA’s exercise of discretion: The Act’s text,

structure, and history demonstrate that Congress

intended for the EPA to model its cap-and-trade

program on similar programs established under the

Clean Air Act, and those programs allocated

allowances to market participants according to their

market share. “Given that statutory meaning,”

Choice’s “constitutional claim must fail”—subsection

(e)(3)’s “delegation falls well within permissible

bounds.” Gundy, 588 U.S. at 136.

The question of whether Congress has supplied an

intelligible principle to guide the agency’s use of

discretion begins with statutory interpretation. We

must “constru[e] the challenged statute to figure out

what task it delegates and what instructions it

provides.” Gundy, 588 U.S. at 136. “Only after a court

has determined a challenged statute’s meaning can it

decide whether the law sufficiently guides executive

discretion to accord with Article I.” Id. The established

rules of statutory interpretation “hold[] good for

delegations, just as for other statutory provisions.” Id.

at 141. And so, when reviewing a statute for an

intelligible principle, “we do not confine ourselves to

the isolated phrase in question, but utilize all the tools

of statutory construction, including the statutory

context and, when appropriate, the factual

background of the statute to determine whether the

App-16

statute provides the bounded discretion that the

Constitution requires.” Owens v. Republic of Sudan,

531 F.3d 884, 890 (D.C. Cir. 2008); see Consumers’

Rsch., slip op. at 22 (noting that previous

nondelegation cases “did not examine . . . statutory

phrases in isolation but instead looked to the broader

statutory

contexts,

which

informed

their

interpretation and supplied the content necessary to

satisfy the intelligible-principle test”).

We thus review the AIM Act’s “text, considered

alongside its context, purpose, and history.” Gundy,

588 U.S. at 136. We agree with the EPA that the

statute guided the agency “to allocate . . . allowances

among persons that have produced or imported

hydrofluorocarbons.” EPA Br. 27-29. The statutory

text commands the EPA to allocate allowances “in

accordance with” the Act, 42 U.S.C. § 7675(e)(3); and

the Act focuses on reducing HFC “production and

consumption.” See id. § 7675(e)(3)(A)-(B) (directing

the EPA to “issue a final rule” “phasing down the

production . . . [and] consumption” of HFCs); see also

id. § 7675(e)(2)(C) (setting schedule for reducing

baseline levels of “production and consumption” of

HFCs). To accomplish the statute’s goal of phasing

down HFCs, the EPA must require the existing

players in the HFC market to lower their HFC

“production and consumption” to a degree that is

commensurate with the capped number of allowances

issued by the agency. A natural way to allocate the

allowances to achieve that purpose is to rely on the

market participants’ historical market share.

Moreover, precedent supports that approach: The

AIM Act follows the lead of two predecessor cap-and-

App-17

trade programs that virtually eliminated the

emissions of CFCs and HCFCs. Indeed, legislative

history demonstrates that the AIM Act was “modeled

on” Title VI of the Clean Air Act. See Promoting

American Innovation and Jobs: Legislation to Phase

Down Hydrofluorocarbons: Hearing on H.R. 5544

Before the Subcomm. on Env’t & Climate Change of the

H. Comm. on Energy & Com., 116th Cong. 2, 7 (2020)

(statements of Rep. Paul Tonko, Chairman, H.

Subcomm. on Env’t & Climate Change, and Rep.

Frank Pallone, Jr., Chairman, H. Comm. on Energy &

Com.) (Title VI “proved an able vehicle to foster an

orderly,

market-based

phasedown of

HFCs’

predecessors,” and the AIM Act “builds upon

[Congress’s] previous experience in phasing out CFCs

and their replacement chemicals, HCFCs.”). Thus, in

both statutes, Congress used “baseline” years to set

caps and phaseout schedules for the regulated

refrigerants. Compare 42 U.S.C. §§ 7671(2)(A)-(C),

7671c(a), 7671d(b), with id. § 7675(e)(1). Congress also

directed the EPA to allocate allowances to accomplish

the refrigerant phaseouts “in accordance with” each

controlling Act. Compare 42 U.S.C. §§ 7671c(c),

7671d(c), with id. § 7675(e)(3). Congress even

expressly incorporated certain provisions of Title VI

into the AIM Act, such as the penalty, recordkeepingand-monitoring, citizen-suit, and judicial-review

provisions. See id. § 7675(k)(1)(C).

Based on the strong similarity between the

programs created by the AIM Act and Title VI, it is

evident that Congress expected the EPA to implement

the HFC cap-and-trade program in a manner that

tracked the successful predecessor programs for CFCs

and HCFCs—and those predecessor programs

App-18

allocated allowances according to market share.

Compare Protection of Stratospheric Ozone, 57 Fed.

Reg. 33754, 33754 (July 30, 1992) (“[The EPA]

[a]pportions baseline allowances to produce or import

ozone depleting substances to companies that

produced or imported certain ozone depleting

substances in the baseline years[.]”), with 2024 Rule,

88 Fed. Reg. at 46837 (“The Agency is basing these

general pool allocations on entities’ market shares

derived from the average of the three highest years of

production and consumption, respectively, of

regulated substances between 2011 and 2019.”). That

interpretation of the AIM Act is consistent with “the

familiar principle that Congress legislates with a full

understanding of existing law.” Am. Fed’n of Gov’t

Emps. v. FLRA, 46 F.3d 73, 78 (D.C. Cir. 1995).

Congress intended that the EPA would implement the

AIM Act by allocating allowances in an orderly,

market-based fashion, as it did when implementing

cap-and-trade programs under Title VI. See Am.

Power & Light Co., 329 U.S. at 104 (concluding that

the relevant delegation “derive[d] much meaningful

content from the purpose of the Act, its factual

background and the statutory context”).3

3 We also note that, to the extent the AIM Act is susceptible to

more than one plausible construction, we should read the statute

to avoid granting discretion that is so broad that it could create a

nondelegation problem. See Consumers’ Rsch., slip op. at 30

(“Statutes (including regulatory statutes) should be read, if

possible, to comport with the Constitution, not to contradict it.”);

Gundy, 588 U.S. at 136 (rejecting the petitioner’s preferred

reading of the statute, under which the Court “would face a

nondelegation question”).

App-19

“Now that we have determined what [the statute]

means, we can consider whether it violates the

Constitution.” Gundy, 588 U.S. at 145. The foregoing

analysis reveals that our interpretation of the statute

all but answers the constitutional question of whether

Congress provided an intelligible principle to guide

the agency’s discretion. See id. at 136 (“[I]ndeed, once

a court interprets the statute, it may find that the

constitutional question all but answers itself.”).

Here, the AIM Act directs the EPA’s regulatory

authority “to a particular subject matter . . . in a

particular industry”—i.e., the allocation of a capped

number of allowances for the production and

consumption of HFCs. Sanchez v. Off. of State

Superintendent of Educ., 45 F.4th 388, 401-02 (D.C.

Cir. 2022). “Within that narrow sphere,” Congress

“can delegate considerable discretion.” Id. at 402.

Indeed, how to allocate allowances in a cap-and-trade

program is the sort of “technical issue” for which little

guidance is necessary. Consumers’ Rsch., slip op. at

11; see Am. Trucking, 531 U.S. at 475 (“[T]he degree of

agency discretion that is acceptable varies according

to the scope of the power congressionally conferred.”).

By modeling the AIM Act on Title VI, Congress

“imposed ascertainable and meaningful guideposts

for” the EPA “to follow when carrying out its delegated

function of” allocating HFC allowances: The

guideposts are found in Title VI and its implementing

regulations, which allocated allowances according to

the historical market share of industry participants.

Consumers’ Rsch., slip op. at 19. The AIM Act’s

allocation provisions, read in context, are

constitutionally sufficient and do not violate the

nondelegation doctrine. See Gundy, 588 U.S. at 135-

App-20

36; see also Sanchez, 45 F.4th at 401-02 (concluding

that the “implication of the Act, read as a whole,”

clearly guided the Mayor’s discretion).

The AIM Act plainly does not give the EPA the

sort of unbounded discretion that renders a statute

unconstitutional. Subsection (e)(3) is very different

from the only two precedents, from over ninety years

ago, that applied the nondelegation doctrine to strike

down a law. See Panama Refining Co., 293 U.S. 388;

A.L.A. Schechter Poultry Corp., 295 U.S. 495. The

Supreme Court overturned statutes “in each case

because Congress had failed to articulate any policy or

standard to confine discretion.” Gundy, 588 U.S. at

146 (cleaned up) (emphasis in original). By contrast,

as discussed, the history and context of the AIM Act

show that Congress provided ample direction to

confine the EPA’s discretion in implementing the

statute’s allowance-allocation program.

are

unpersuaded

Choice’s

counterarguments. Choice complains that the AIM

Act’s language directing the EPA to distribute

allowances “in accordance with this section,” 42 U.S.C.

§ 7675(e)(3), is not as specific as the direction provided

in other sections of the Act. But the Constitution does

not require the degree of specificity demanded by

Choice. See Am. Trucking, 531 U.S. at 475 (noting that

the nondelegation doctrine has “never demanded . . .

that statutes provide a determinate criterion” (cleaned

up)).

Choice further disputes Title VI’s relevance to the

AIM Act and says that Title VI cannot provide limiting

principles here because Congress “expressly

App-21

incorporated certain procedural provisions of the

Clean Air Act” while “declin[ing] to refer to any

substantive provisions.” Choice Reply Br. 14. As

already discussed, however, the Act’s structure and

history clearly show that Congress relied on Title VI

for more than the procedural provisions expressly

incorporated. See, e.g., Hearing on H.R. 5544, 116th

Cong. 2 (statement of Rep. Paul Tonko) (“The

legislation is modeled on Title VI of the Clean Air Act,”

which “proved an able vehicle to foster an orderly,

market-based phasedown of HFCs’ predecessors.”).

Finally, Choice accuses the EPA of taking

different positions in prior proceedings and argues

that the EPA’s decision to model its HFC phasedown

on Title VI today does not prevent the EPA from

“abandon[ing] this system in the future.” Choice Reply

Br. 14; see also Am. Trucking, 531 U.S. at 472 (“[A]n

agency [cannot] cure an unlawful delegation of

legislative power by adopting in its discretion a

limiting construction of the statute.”). We decline to

consider this possibility because it is not our job to

address hypothetical future applications of the AIM

Act. Cf. Nat’l Endowment for the Arts v. Finley, 524

U.S. 569, 584 (1998) (We will not “invalidate

legislation on the basis of . . . hypothetical . . .

situations not before” us. (cleaned up)). If the EPA

“abandon[s] this system in the future,” Choice Reply

Br. 14, that action can be subject to further APA

challenge.

For the reasons discussed, we deny Choice’s

petition.

App-22

III.

Petitioner IGas challenges the EPA’s 2024 Rule as

arbitrary and capricious. According to IGas, the EPA’s

decision to calculate market share by considering an

entity’s three highest years of production and

consumption between 2011 and 2019 was

unreasonable because it excluded 2020 data.4 Because

the EPA’s methodology was reasonable, we reject

IGas’s challenge and deny its petition for review.

As a threshold matter, we disagree with the EPA’s

contention that IGas forfeited its argument that the

agency “failed to independently consider whether 2020

data should be included” in the allocation

methodology. IGas Br. 15. The EPA argues that IGas’s

comments during the agency-review process urged the

agency to adopt data from both 2020 and 2021, which

did not adequately preserve its argument on appeal

that EPA should consider only the 2020 data. See 42

U.S.C. § 7607(d)(7)(B) (An argument is preserved for

appeal if it was made “with reasonable specificity

during the period for public comment” before the

agency.). But the EPA’s assertion that IGas did not

previously “point[] to any material difference between

the 2020 and 2021 data,” EPA Br. 41, is belied by the

record. In direct response to the EPA’s concern about

4 IGas has standing to challenge the 2024 Rule. Igas imports

HFCs regulated by the EPA’s Rule and receives allocations for

that import activity. It is thus an “object of the action . . . at issue,”

and there is “little question” that the action has caused it injury

and that a judgment preventing the action will redress that

injury. Sierra Club v. EPA, 292 F.3d 895, 900 (D.C. Cir. 2002)

(cleaned up).

App-23

stockpiling in 2020 and 2021, IGas offered different

reasons for disproving the stockpiling theory for each

year. Compare J.A. 260-61, with J.A. 262-63. Because

IGas pointed out differences in the 2020 and 2021

data, IGas’s “comment to the agency was adequate

notification of the general substance” of a claim that

the agency should consider each year’s data

separately. S. Coast Air Quality Mgmt. Dist. v. EPA,

472 F.3d 882, 891 (D.C. Cir. 2006); see also

Appalachian Power Co. v. EPA, 135 F.3d 791, 817-18

(D.C. Cir. 1998) (“[T]he [Clean Air] Act does not

require that precisely the same argument that was

made before the agency be rehearsed again, word for

word, on judicial review.”).

On the merits, we conclude that the EPA

reasonably excluded the 2020 data. Under the Clean

Air Act, made applicable to the AIM Act through 42

U.S.C. § 7675(k)(1)(C), we “may reverse any [] action

found to be arbitrary, capricious, [or] an abuse of

discretion.” 42 U.S.C. § 7607(d)(9)(A). “To determine

whether EPA’s rules are arbitrary and capricious, we

apply the same standard of review under the Clean Air

Act as we do under the Administrative Procedure Act

(APA).” Allied Loc. & Reg’l Mfrs. Caucus v. EPA, 215

F.3d 61, 68 (D.C. Cir. 2000) (cleaned up). Under that

standard, an agency must engage in reasoned

decision-making. See Michigan v. EPA, 576 U.S. 743,

750 (2015). This means that “the agency must

examine the relevant data and articulate a

satisfactory explanation for its action including a

rational connection between the facts found and the

choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

App-24

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(cleaned up). Agency action is arbitrary and capricious

if the agency “relied on factors which Congress has not

intended it to consider, entirely failed to consider an

important aspect of the problem,” or “offered an

explanation for its decision that runs counter to the

evidence before the agency or is so implausible that it

could not be ascribed to a difference in view or the

product of agency expertise.” Id. But our “scope of

review under the ‘arbitrary and capricious’ standard

is narrow,” and we are not to “substitute [our]

judgment for that of the agency.” Id. Further, “when

an agency relies on multiple grounds for its decision,”

we may “sustain the decision as long as one is valid

and the agency would clearly have acted on that

ground even if the other were unavailable.” Casino

Airlines, Inc. v. NTSB, 439 F.3d 715, 717 (D.C. Cir.

2006) (cleaned up).

Applying that deferential standard of review, the

EPA’s decision to exclude the 2020 data from its

allocation methodology was not arbitrary and

capricious because the agency reasonably concluded

that (1) the data was unrepresentative of market

share, and (2) its inclusion would disrupt the market.

First, the EPA reasonably determined that the

2020 data was “less representative due to several

important global and market factors,” “such as the

COVID-19 pandemic and supply chain disruptions,”

“and therefore [did] not accurately represent

companies’ market share.” 2024 Rule, 88 Fed. Reg. at

46843. The EPA conducted extensive stakeholder

outreach and received comments agreeing with its

concern that the “production and importation of HFCs

App-25

in 2020 [] were influenced by external factors such as

the COVID-19 pandemic and supply chain

disruptions.” Id. Indeed, IGas’s own comments

conceded that 2020 was “anomalous as a result of the

COVID-19 pandemic where supply chain difficulties

dominated all markets.” J.A. 60; see also J.A. 256

(continuing to represent that there were “significant

difficulties with supply and transportation caused by

the COVID-19 pandemic”). The EPA’s final rule

further noted that the agency “received comments

from a trade organization whose members represent

70 percent of the dollar value of the HVACRefrigeration market, 400 whole companies, nearly

300 manufacturing associates and nearly 100

manufacturer representatives, who supported the

Agency’s proposal to exclude 2020 and 2021 from

evaluation.” 2024 Rule, 88 Fed. Reg. at 46843. It was

plainly reasonable for the EPA to rely on the

comments of a “breadth of stakeholders,” id. at 46844,

as well as IGas’s own comments about the 2020 data.

We also reject IGas’s argument that the 2020 data

should be included even if it is atypical, to avoid

punishing companies that managed to do well in

atypical years. The EPA’s decision that allocations

should reflect typical market share is a policy

judgment entitled to deference. See Bluewater

Network v. EPA, 370 F.3d 1, 11 (D.C. Cir. 2004) (We

do not “substitute our policy judgment for that of the

Agency.”). Our job is limited to “ensuring that EPA has

examined the relevant data and articulated a

satisfactory explanation for its action.” Id. (cleaned

up). Here, the EPA has done that. The EPA

acknowledged the issue raised by IGas, but disagreed

“that it would be appropriate to incorporate data

App-26

influenced by the pandemic because some entities did

well during those years.” 2024 Rule, 88 Fed. Reg. at

46845. The EPA reasonably declined to “provid[e] a

company with additional future allowances based on

activity in years that are so unusual.” Id.5

Second, the EPA’s decision to exclude the 2020

data because of its potential to disrupt the market

independently supports upholding the 2024 Rule. In

the 2024 Rule, the EPA chose to maintain existing

market-share calculations—which did not include

2020 data—because “[r]egulated entities have . . .

previously expressed a preference for allowances to be

allocated using a consistent approach for as long as

possible.” 2024 Rule, 88 Fed. Reg. at 46844. The

agency determined that “[a]pplying a similar

approach as the one taken” previously “will provide a

longer-term planning horizon for HFC producers and

entities importing, which will enable entities to make

decisions about which HFCs, and HFC substitutes, to

produce and import as the market transitions[.]” Id.

For those reasons, the EPA concluded, retaining the

Framework Rule’s dataset to set allowances was the

And contrary to IGas’s assertions, the EPA was not

inconsistent in its treatment of 2020 data. IGas argues that the

EPA’s decision to exclude 2020 data as unrepresentative is

undermined by the Framework Rule, which required entities to

be an active market participant in 2020 to be eligible for

allowances. But the Framework Rule recognized the atypicality

of 2020 by providing exceptions for entities that were inactive in

2020 due to the COVID-19 pandemic. See Framework Rule, 86

Fed. Reg. at 55144 (stating that the EPA will “give individualized

consideration to circumstances of historical importers that were

not active in 2020,” “for example if [inactivity] was due to the

COVID-19 pandemic”).

App-27

“best means for reducing (though not eliminating)

disruption to the market.” Id. The EPA thus

“justif[ied] its rule with a reasoned explanation.”

Stilwell v. Off. of Thrift Supervision, 569 F.3d 514, 519

(D.C. Cir. 2009).

We disagree with IGas’s claim that excluding

2020 data does not advance the EPA’s stated goal of

continuity and that the EPA’s conclusion was “left

completely unexplained.” IGas Br. 42 (quoting West

Virginia v. EPA, 362 F.3d 861, 866 (D.C. Cir. 2004)).

And although IGas argues otherwise, the EPA was not

required to conduct studies to conclusively show that

the 2020 data would have significantly changed

individual allocations. The APA “imposes no general

obligation on agencies to produce empirical evidence.”

Stilwell, 569 F.3d at 519.

For the foregoing reasons, we deny IGas’s

petition.6

So ordered.

6 We need not examine the additional reasons that the EPA

provided for excluding the 2020 data, including its statements

that 2020 was not a representative year due to stockpiling ahead

of the AIM Act’s passage, and that 2020 data was not as reliable

or well-vetted as data from 2011 to 2019. That analysis would be

superfluous. See Casino Airlines, 439 F.3d at 717 (“We have

consistently held that when an agency relies on multiple grounds

for its decision, some of which are invalid, we may nonetheless

sustain the decision as long as one is valid and the agency would

clearly have acted on that ground even if the other were

unavailable.” (cleaned up)).

App-28

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

________________

Consolidated with

No. 23-1261

No. 23-1263

________________

IGAS HOLDINGS, INC., et al.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

AIR-CONDITIONING, HEATING, AND REFRIGERATION

INSTITUTE AND ALLIANCE FOR RESPONSIBLE

ATMOSPHERIC POLICY,

Intervenors.

________________

Filed: Sept. 30, 2025

________________

Before: Pillard, Pan, and Garcia, Circuit Judges.

________________

ORDER

________________

Upon consideration of petition RMS of Georgia,

LLC’s petition for panel rehearing filed September 15,

2025, it is

App-29

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

App-30

Appendix C

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Const. art. I, §1

All legislative Powers herein granted shall be

vested in a Congress of the United States, which shall

consist of a Senate and House of Representatives.

42 U.S.C. §7675. American Innovation and

Manufacturing

(a) Short title

This section may be cited as the “American Innovation

and Manufacturing Act of 2020”.

(b) Definitions

In this section:

(1) Administrator

The

term

“Administrator”

means

the

Administrator of the Environmental Protection

Agency.

(2) Allowance

The term “allowance” means a limited

authorization for the production or consumption

of a regulated substance established under

subsection (e).

(3) Consumption

The term “consumption”, with respect to a

regulated substance, means a quantity equal to

the difference between-(A) a quantity equal to the sum of--

App-31

(i) the quantity of that regulated

substance produced in the United States;

and

(ii) the quantity of the regulated

substance imported into the United

States; and

(B) the quantity of the regulated substance

exported from the United States.

(4) Consumption baseline

The term “consumption baseline” means the

baseline established for the consumption of

regulated substances under subsection (e)(1)(C).

(5) Exchange value

The term “exchange value” means the value

assigned to a regulated substance in accordance

with subsections (c) and (e), as applicable.

(6) Import

The term “import” means to land on, bring into, or

introduce into, or attempt to land on, bring into,

or introduce into, any place subject to the

jurisdiction of the United States, regardless of

whether that landing, bringing, or introduction

constitutes an importation within the meaning of

the customs laws of the United States.

(7) Produce

(A) In general

The term “produce” means the manufacture

of a regulated substance from a raw material

or feedstock chemical (but not including the

destruction of a regulated substance by a

technology approved by the Administrator).

App-32

(B) Exclusions

The term “produce” does not include-(i) the manufacture of a regulated

substance that is used and entirely

consumed (except for trace quantities) in

the manufacture of another chemical; or

(ii) the reclamation, reuse, or recycling

of a regulated substance.

(8) Production baseline

The term “production baseline” means the

baseline established for the production of

regulated substances under subsection (e)(1)(B).

(9) Reclaim; reclamation

The terms “reclaim” and “reclamation” mean-(A) the reprocessing of a recovered regulated

substance to at least the purity described in

standard 7002016 of the Air-Conditioning,

Heating, and Refrigeration Institute (or an

appropriate successor standard adopted by

the Administrator); and

(B) the verification of the purity of that

regulated substance using, at a minimum, the

analytical methodology described in the

standard referred to in subparagraph (A).

(10) Recover

The term “recover” means the process by which a

regulated substance is-(A) removed, in

equipment; and

any

condition,

from

App-33

(B) stored in an external container, with or

without testing or processing the regulated

substance.

(11) Regulated substance

The term “regulated substance” means-(A) a substance listed in the table contained

in subsection (c)(1); and

(B) a substance included as a regulated

substance by the Administrator under

subsection (c)(3).

(1) List of regulated substances

Each of the following substances, and any isomers

of such a substance, shall be a regulated

substance:

Chemical Name

Common

Name

Exchange

Value

CHF2CHF2

HFC-134

1100

CH2FCF3

HFC-134a

1430

CH2FCHF2

HFC-143

353

CHF2CH2CF3

HFC-245fa

1030

CF3CH2CF2CH3

HFC-365mfc

794

CF3CHFCF3

HFC-227ea

3220

CH2FCF2CF3

HFC-236cb

1340

CHF2CHFCF3

HFC-236ea

1370

CF3CH2CF3

HFC-236fa

9810

CH2FCF2CHF2

HFC-245ca

693

CF3CHFCHFCF2CF3 HFC-43-10mee

1640

App-34

CH2F2

HFC-32

675

CHF2CF3

HFC-125

3500

CH3CF3

HFC-143a

4470

CH3F

HFC-41

CH2FCH2F

HFC-152

CH3CHF2

HFC-152a

124

CHF3

HFC-23

14800.

(2) Review

The Administrator may-(A) review the exchange values listed in the

table contained in paragraph (1) on a periodic

basis; and

(B) subject to notice and opportunity for

public comment, adjust the exchange values

solely on the basis of-(i) the best available science; and

(ii) other information consistent with

widely used or commonly accepted

existing exchange values.

(3) Other regulated substances

(A) In general

Subject to notice and opportunity for public

comment, the Administrator may designate a

substance not included in the table contained

in paragraph (1) as a regulated substance if-(i) the substance-(I) is a chemical substance that is a

saturated hydrofluorocarbon; and

App-35

(II) has an exchange value, as

determined by the Administrator in

accordance with the basis described

in paragraph (2)(B), of greater than

53; and

(ii) the designation of the substance as a

regulated substance would be consistent

with the purposes of this section.

(B) Savings provision

(i) In general

Nothing in this paragraph authorizes the

Administrator to designate as a

regulated substance a blend of

substances that includes a saturated

hydrofluorocarbon for purposes of

phasing down production or consumption

of regulated substances under subsection

(e),

even

the

saturated

hydrofluorocarbon is, or may be,

designated as a regulated substance.

(ii) Authority of administrator

Clause (i) does not affect the authority of

the Administrator to regulate under this

Act 1 a regulated substance within a

blend of substances.

(d) Monitoring and reporting requirements

(1) Production, import, and export level

reports

(A) In general

On a periodic basis, to be determined by the

Administrator, but not less frequently than

App-36

annually, each person who, within the

applicable reporting period, produces,

imports, exports, destroys, transforms, uses

as a process agent, or reclaims a regulated

substance shall submit to the Administrator

a report that describes, as applicable, the

quantity of the regulated substance that the

person-(i) produced, imported, and exported;

(ii) reclaimed;

(iii) destroyed by a technology approved

by the Administrator;

(iv) used and entirely consumed (except

for trace quantities) in the manufacture

of another chemical; or

(v) used as a process agent.

(B) Requirements

(i) Signed and attested

The report under subparagraph (A) shall

be signed and attested by a responsible

officer (within the meaning of the Clean

Air Act (42 U.S.C. 7401 et seq.)).

(ii) No further reports required

A report under subparagraph (A) shall

not be required from a person if the

person-(I) permanently ceases production,

importation,

exportation,

destruction, transformation, use as a

process agent, or

App-37

reclamation

substances; and

all

regulated

(II) notifies the Administrator in

writing that the requirement under

subclause (I) has been met.

(iii) Baseline period

Each report under subparagraph (A)

shall include, as applicable, the

information

described

that

subparagraph for the baseline period of

calendar years 2011 through 2013.

(2) Coordination

The Administrator may allow any person subject

to the requirements of paragraph (1)(A) to

combine and include the information required to

be reported under that paragraph with any other

related information that the person is required to

report to the Administrator.

(e) Phase-down of production and consumption

of regulated substances

(1) Baselines

(A) In general

Subject

subparagraph

(D),

the

Administrator shall establish for the phasedown of regulated substances-(i) a production baseline for the

production of all regulated substances in

the United States, as described in

subparagraph (B); and

(ii) a consumption baseline for the

consumption of all regulated substances

App-38

in the United States, as described in

subparagraph (C).

(B) Production baseline described

The production baseline referred to in

subparagraph (A)(i) is the quantity equal to

the sum of-(i) the average annual quantity of all

regulated substances produced in the

United States during the period-(I) beginning on January 1, 2011;

and

(II) ending on December 31, 2013;

and

(ii) the quantity equal to the sum of-(I) 15 percent of the production

level of hydrochlorofluorocarbons in

calendar year 1989; and

(II) 0.42 percent of the production

level of chlorofluorocarbons in

calendar year 1989.

The consumption baseline referred to in

subparagraph (A)(ii) is the quantity equal to

the sum of-(i) the average annual quantity of all

regulated substances consumed in the

United States during the period-(I) beginning on January 1, 2011;

and

App-39

(II) ending on December 31, 2013;

and

(ii) the quantity equal to the sum of-(I) 15 percent of the consumption

level of hydrochlorofluorocarbons in

calendar year 1989; and

(II) 0.42 percent of the consumption

level of chlorofluorocarbons in

calendar year 1989.

(D) Exchange values

(i) In general

For purposes of establishing the

baselines pursuant to subparagraphs (B)

and (C), the Administrator shall use the

exchange values listed in the table

contained in subsection (c)(1) for

regulated substances and the following

exchange

values

for

hydrochlorofluorocarbons

and

chlorofluorocarbons:

Table 2

Chemical Name

Common Name

Exchange

Value

CHFC12

HCFC-21

151

CHF2C1

HCFC-22

1810

C2HF3C12

HCFC-123

C2HF4C1

HCFC-124

609

CH3CFC12

HCFC-141b

725

CH3CF2C1

HCFC-142b

2310

CF3CF2CHC12

HCFC-225ca

122

App-40

CF2C1CF2CHC1F

HCFC-225cb

595

Table 3

CFC13

CFC-11

4750

CF2C12

CFC-12

10900

C2F3C13

CFC-113

6130

C2F4C12

CFC-114

10000

C2F5C1

CFC-115

7370

(ii) Review

The Administrator may-(I) review the exchange values

listed in the tables contained in

clause (i) on a periodic basis; and

(II) subject to notice and opportunity

for public comment, adjust the

exchange values solely on the basis

of-(aa) the best available science;

and

(bb) other

information

consistent with widely used or

commonly

accepted

existing

exchange values.

(2) Production and consumption phasedown

(A) In general

During the period beginning on January 1 of

each year listed in the table contained in

subparagraph (C) and ending on December 31

of the year before the next year listed on that

App-41

table, except as otherwise permitted under

this section, no person shall-(i) produce a quantity of a regulated

substance without a corresponding

quantity of production allowances, except

as provided in paragraph (5);

(ii) consume a quantity of a regulated

substance without a corresponding

quantity of consumption allowances; or

(iii) hold, use, or transfer any production

allowance or consumption allowance

allocated under this section except in

accordance

with

regulations

promulgated by the Administrator

pursuant to subsection (g).

(B) Compliance

For each year listed on the table contained in

subparagraph (C), the Administrator shall

ensure that the annual quantity of all

regulated substances produced or consumed

in the United States does not exceed the

product obtained by multiplying-(i) the

production

baseline

consumption baseline, as applicable; and

(ii) the applicable percentage listed on

the table contained in subparagraph (C).

On January 1 of each year listed in the

following table, the Administrator shall apply

the applicable percentage, as described in

subparagraph (A):

App-42

Date

Percentage of Percentage of

Production

Consumption

Baseline

2020-2023

90 percent

2024-2028

60 percent

2029-2033

30 percent

2034-2035

20 percent

2036 and

thereafter

15 percent

(D) Allowances

(i) Quantity

Not later than October 1 of each calendar

year, the Administrator shall use the

quantity calculated under subparagraph

(B) to determine the quantity of

allowances for the production and

consumption of regulated substances

that may be used for the following

calendar year.

(ii) Nature of allowances

(I) In general

An allowance allocated under this

section-(aa) does not constitute

property right; and

(bb) is a limited authorization

for the production or consumption

of a regulated substance under

this section.

App-43

(II) Savings provision

Nothing in this section or in any

other provision of law limits the

authority of the United States to

terminate or limit an authorization

described in subclause (I)(bb).

(3) Regulations regarding production and

consumption of regulated substances

Not later than 270 days after December 27, 2020,

which shall include a period of notice and

opportunity

for

public

comment,

the

Administrator shall issue a final rule-(A) phasing down the production of regulated

substances in the United States through an

allowance allocation and trading program in

accordance with this section; and

(B) phasing down the consumption of

regulated substances in the United States

through an allowance allocation and trading

program in accordance with the schedule

under paragraph (2)(C) (subject to the same

exceptions and other requirements as are

applicable to the phase-down of production of

regulated substances under this section).

(4) Exceptions; essential uses

(A) Feedstocks and process agents

Except for the reporting requirements

described in subsection (d)(1), this section

does not apply to-(i) a regulated substance that is used

and entirely consumed (except for trace

App-44

quantities) in the manufacture of another

chemical; or

(ii) a regulated substance that is used

and not entirely consumed in the

manufacture of another chemical, if the

remaining amounts of the regulated

substance are subsequently destroyed.

(B) Essential uses

(i) In general

Beginning on December 27, 2020, and

subject to paragraphs (2) and (3) and

clauses (ii) and (iii), the Administrator

may, by rule, after considering technical

achievability, commercial demands,

affordability for residential and small

business consumers, safety, and other

relevant factors, including overall

economic costs and environmental

impacts compared to historical trends,

allocate a quantity of allowances for a

period of not more than 5 years for the

production and consumption of a

regulated substance exclusively for the

use of the regulated substance in an

application, if-(I) no safe or technically achievable

substitute will be available during

the applicable period for that

application; and

(II) the supply of the regulated

substance that manufacturers or

users of the regulated substance for

App-45

that application are capable of

securing

from

chemical

manufacturers, as authorized under

paragraph (2)(A), including any

quantities of a regulated substance

available from production or import,

is insufficient to accommodate the

application.

(ii) Petition

If the Administrator receives a petition

requesting the designation of an

application as an essential use under

clause (i), the Administrator shall-(I) not later than 180 days after the

date on which the Administrator

receives the petition-(aa) make the complete petition

available to the public; and

(bb) when making the petition

available to the public under item

(aa), propose and seek public

comment on-(AA) a

determination

whether to designate the

application as an essential use;

and

(BB) if the Administrator

proposes to designate the

application as an essential use,

making the requisite allocation

of allowances; and

App-46

(II) not later than 270 days after the

date on which the Administrator

receives the petition, take final

action on the petition.

(iii) Limitation

A person receiving an allocation under

clause (i) or (iv) or as a result of a petition

granted under clause (ii) may not

produce or consume a produced quantity

of regulated substances that, considering

the respective exchange values of the

regulated substances, exceeds the

number of allowances issued under

paragraphs (2) and (3) that are held by

that person.

(iv) Mandatory allocations

(I) In general

Notwithstanding clause (i) and

subject to clause (iii) and paragraphs

(2) and (3), for the 5-year period

beginning on December 27, 2020, the

Administrator shall allocate the full

quantity of allowances necessary,

based on projected, current, and

historical trends, for the production

or consumption of a regulated

substance for the exclusive use of the

regulated

substance

application solely for-(aa) a propellant in metereddose inhalers;

(bb) defense sprays;

App-47

(cc) structural

composite

preformed polyurethane foam for

marine use and trailer use;

(dd) the

etching

semiconductor material or wafers

and the cleaning of chemical vapor

deposition chambers within the

semiconductor

manufacturing

sector;

(ee) mission-critical

military

end uses, such as armored vehicle

engine

and

shipboard

fire

suppression systems and systems

used

deployable

and

expeditionary applications; and

(ff) onboard

suppression.

aerospace

fire

(II) Requirement

The allocation of allowances under

subclause (I) shall be determined

through a rulemaking.

(v) Review

(I) In general

For each essential use application

receiving an allocation of allowances

under clause (i) or (iv), the

Administrator shall review the

availability of substitutes, including

any quantities of the regulated

substance available from reclaiming

or prior production, not less

frequently than once every 5 years.

App-48

(II) Extension

If, pursuant to a review under

subclause (I), the Administrator

determines, subject to notice and

opportunity for public comment, that

the requirements described in

subclauses (I) and (II) of clause (i)

are met, the Administrator shall

authorize

the

production

consumption, as applicable, of any

regulated substance used in the

application for renewable periods of

not more than 5 years for exclusive

use in the application.

(5) Domestic manufacturing

Notwithstanding

paragraph

(2)(A)(i),

the

Administrator may, by rule, authorize a person to

produce a regulated substance in excess of the

number of production allowances held by that

person, subject to the conditions that-(A) the authorization is-(i) for a renewable period of not more

than 5 years; and

(ii) subject to notice and opportunity for

public comment; and

(B) the production-(i) is at a facility located in the United

States;

(ii) is solely for export to, and use in, a

foreign country that is not subject to the

prohibition in subsection (j)(1); and

App-49

(iii) would not violate paragraph (2)(B).

(f) Accelerated schedule

(1) In general

Subject to paragraph (4), the Administrator may,

only in response to a petition submitted to the

Administrator in accordance with paragraph (3)

and after notice and opportunity for public

comment, promulgate regulations that establish a

schedule for phasing down the production or

consumption of regulated substances of regulated

substances that is more stringent than the

production and consumption levels of regulated

substances required under subsection (e)(2)(C).

(2) Requirements

Any regulations

subsection--

promulgated

under

this

(A) shall-(i) apply uniformly to the allocation of

production and consumption allowances

for regulated substances, in accordance

with subsection (e)(3);

(ii) ensure that there will be sufficient

quantities of regulated substances,

including substances available from

reclaiming, prior production, or prior

import, to meet the needs for-(I) applications that receive an

allocation under clause (i) of

subsection (e)(4)(B); and

(II) all applications that receive a

mandatory allocation under items

App-50

(aa) through (ff) of clause (iv)(I) of

that subsection; and

(iii) foster continued reclamation of and

transition from regulated substances;

and

(B) shall not set the level of production

allowances or consumption allowances below

the percentage of the consumption baseline

that is actually consumed during the calendar

year prior to the year during which the

Administrator makes a final determination

with respect to the applicable proposal

described in paragraph (3)(C)(iii)(I).

(3) Petition

(A) In general

A person may petition the Administrator to

promulgate regulations for an accelerated

schedule for the phase-down of production or

consumption of regulated substances under

paragraph (1).

(B) Requirement

A petition submitted under subparagraph (A)

shall-(i) be made at such time, in such

manner,

and

containing

such

information as the Administrator shall

require; and

(ii) include a showing by the petitioner

that there are data to support the

petition.

App-51

(i) In general

If the Administrator receives a petition

under

subparagraph

(A),

the

Administrator shall-(I) not later than 180 days after the

date on which the Administrator

receives the petition-(aa) make the complete petition

available to the public; and

(bb) when making the petition

available to the public under item

(aa), propose and seek public

comment on the proposal of the

Administrator to grant or deny the

petition; and

(II) not later than 270 days after the

date on which the Administrator

receives the petition, take final

action on the petition.

(ii) Factors for determination

In making a determination to grant or

deny a petition submitted under

subparagraph (A), the Administrator

shall, to the extent practicable, factor in(I) the best available data;

(II) the availability of substitutes for

uses of the regulated substance that

is the subject of the petition, taking

into

account

technological

achievability, commercial demands,

App-52

affordability for residential and

small business consumers, safety,

consumer costs, building codes,

appliance

efficiency

standards,

contractor training costs, and other

relevant factors, including the

quantities of regulated substances

available from reclaiming, prior

production, or prior import;

(III) overall economic costs and

environmental impacts, as compared

to historical trends; and

(IV) the remaining phase-down

period for regulated substances

under the final rule issued under

subsection (e)(3), if applicable.

(iii) Regulations

After receiving public comment with

respect to the proposal under clause

(i)(I)(bb), if the Administrator makes a

final determination to grant a petition

under subparagraph (A), the final

regulations with respect to the petition

shall-(I) be promulgated by not later

than 1 year after the date on which

the Administrator makes the

proposal to grant the petition under

that clause; and

(II) meet the

paragraph (2).

(D) Publication

requirements

App-53

When the Administrator makes a final

determination to grant or deny a petition

under subparagraph (A), the Administrator

shall publish a description of the reasons for

that grant or denial, including a description

of the information considered under

subclauses (I) through (IV) of subparagraph

(C)(ii).

(E) Insufficient information

If the Administrator determines that the data

included under subparagraph (B)(ii) in a

petition are not sufficient to make a

determination under this paragraph, the

Administrator shall use any authority

available to the Administrator to acquire the

necessary data.

(4) Date of effectiveness

The Administrator may not promulgate under

paragraph (1) a regulation for the production or

consumption of regulated substances that is more

stringent than the production or consumption

levels required under subsection (e)(2)(C) that

takes effect before January 1, 2025.

(5) Review

(A) In general

The Administrator shall review the

availability of substitutes for regulated

substances subject to an accelerated schedule

established under paragraph (1) in each

sector and subsector in which the regulated

substance is used, taking into account

technological

achievability,

commercial

App-54

demands, safety, and other relevant factors,

including the quantities of regulated

substances available from reclaiming, prior

production, or prior import, by January 1,

2026 (for the first review), by January 1, 2031

(for the second review), and at least once

every 5 years thereafter.

(B) Public availability

The Administrator shall make the results of

a review conducted under subparagraph (A)

publicly available.

(6) Savings provision

Nothing in this subsection authorizes the

Administrator

promulgate

regulations

pursuant to this subsection that establish a

schedule for phasing down the production or

consumption of regulated substances that is less

stringent than the production and consumption

levels of regulated substances required under

subsection (e)(2)(C).

(g) Exchange authority

(1) Transfers

Not later than 270 days after December 27, 2020,

which shall include a period of notice and

opportunity

for

public

comment,

the

Administrator shall promulgate a final regulation

that governs the transfer of allowances for the

production of regulated substances under

subsection (e)(3)(A) that uses-(A) the applicable exchange values described

in the table contained in subsection (c)(1); or

App-55

(B) the exchange value described in the rule

designating the substance as a regulated

substance under subsection (c)(3).

(2) Requirements

The final rule promulgated

paragraph (1) shall--

pursuant

(A) ensure that the transfers under this

subsection will result in greater total

reductions in the production of regulated

substances in each year than would occur

during the year in the absence of the

transfers;

(B) permit 2 or more persons to transfer

production allowances if the transferor of the

allowances will be subject, under the final

rule, to an enforceable and quantifiable

reduction in annual production that-(i) exceeds the reduction otherwise

applicable to the transferor under this

section;

(ii) exceeds the quantity of production

represented

the

production

allowances transferred to the transferee;

and

(iii) would not have occurred in the

absence of the transaction; and

allowances in the same manner as is

applicable under this subsection to the

trading of production allowances.

App-56

(h) Management of regulated substances

(1) In general

For purposes of maximizing reclaiming and

minimizing the release of a regulated substance

from equipment and ensuring the safety of

technicians and consumers, the Administrator

shall promulgate regulations to control, where

appropriate, any practice, process, or activity

regarding the servicing, repair, disposal, or

installation of equipment (including requiring,

where appropriate, that any such servicing,

repair, disposal, or installation be performed by a

trained technician meeting minimum standards,

as determined by the Administrator) that

involves-(A) a regulated substance;

(B) a substitute for a regulated substance;

used as a refrigerant; or

(D) the reclaiming of a substitute for a

regulated substance used as a refrigerant.

(2) Reclaiming

(A) In general

carrying

out

this

section,

the

Administrator shall consider the use of

authority available to the Administrator

under this section to increase opportunities

for the reclaiming of regulated substances

used as refrigerants.

App-57

(B) Recovery

A regulated substance used as a refrigerant

that is recovered shall be reclaimed before the

regulated substance is sold or transferred to

a new owner, except where the recovered

regulated substance is sold or transferred to

a new owner solely for the purposes of being

reclaimed or destroyed.

(3) Coordination

In promulgating regulations to carry out this

subsection, the Administrator may coordinate

those regulations with any other regulations

promulgated by the Administrator that involve-(A) the same or a similar practice, process, or

activity regarding the servicing, repair,

disposal, or installation of equipment; or

(B) reclaiming.

(4) Inapplicability

No regulation promulgated pursuant to this

subsection shall apply to a regulated substance or

a substitute for a regulated substance that is

contained in a foam.

(5) Small business grants

(A) Definition of small business concern

In this paragraph, the term “small business

concern” has the same meaning as in section

632 of Title 15.

(B) Establishment

Subject to the availability of appropriations,

the Administrator shall establish a grant

program to award grants to small business

App-58

concerns for the purchase of new specialized

equipment for the recycling, recovery, or

reclamation of a substitute for a regulated

substance, including the purchase of

approved refrigerant recycling equipment (as

defined in section 609(b) of the Clean Air Act

(42 U.S.C. 7671h(b))) for recycling, recovery,

or reclamation in the service or repair of

motor vehicle air conditioning systems.

The non-Federal share of a project carried out

with a grant under this paragraph shall be

not less than 25 percent.

(D) Authorization of appropriations

There is authorized to be appropriated to

carry out this paragraph $5,000,000 for each

of fiscal years 2021 through 2023.

(i) Technology transitions

(1) Authority

Subject to the provisions of this subsection, the

Administrator may by rule restrict, fully,

partially, or on a graduated schedule, the use of a

regulated substance in the sector or subsector in

which the regulated substance is used.

(2) Negotiated rulemaking

(A) Consideration required

Before proposing a rule for the use of a

regulated substance for a sector or subsector

under paragraph (1), the Administrator shall

consider negotiating with stakeholders in the

sector or subsector subject to the potential

App-59

rule in accordance with the negotiated

rulemaking procedure provided for under

subchapter III of chapter 5 of Title 5

(commonly known as the “Negotiated

Rulemaking Act of 1990”).

(B) Negotiated rulemakings

If the Administrator negotiates a rulemaking

with stakeholders using the procedure

described in subparagraph (A), the

Administrator shall, to the extent practicable,

give priority to completing that rulemaking

over completing rulemakings under this

subsection that were not negotiated using

that procedure.

If the Administrator does not negotiate a

rulemaking with stakeholders using the

procedure described in subparagraph (A), the

Administrator shall, before commencement of

the rulemaking process for a rule under

paragraph (1), publish an explanation of the

decision of the Administrator to not use that

procedure.

(3) Petitions

(A) In general

A person may petition the Administrator to

promulgate a rule under paragraph (1) for the

restriction on use of a regulated substance in

a sector or subsector, which shall include a

request that the Administrator negotiate

with stakeholders in accordance with

paragraph (2)(A).

App-60

(B) Response

The Administrator shall grant or deny a

petition under subparagraph (A) not later

than 180 days after the date of receipt of the

petition.

(i) Explanation

If the Administrator denies a petition

under

subparagraph

(B),

the

Administrator shall publish in the

Federal Register an explanation of the

denial.

(ii) Final rule

If the Administrator grants a petition

under

subparagraph

(B),

the

Administrator shall promulgate a final

rule not later than 2 years after the date

on which the Administrator grants the

petition.

(iii) Publication of petitions

Not later than 30 days after the date on

which the Administrator receives a

petition under subparagraph (A), the

Administrator shall make that petition

available to the public in full.

(4) Factors for determination

In carrying out a rulemaking using the procedure

described in paragraph (2) or making a

determination to grant or deny a petition

submitted

under

paragraph

(3),

the

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Administrator shall, to the extent practicable,

factor in-(A) the best available data;

(B) the availability of substitutes for use of

the regulated substance that is the subject of

the rulemaking or petition, as applicable, in a

sector or subsector, taking into account

technological

achievability,

commercial

demands, affordability for residential and

small business consumers, safety, consumer

costs, building codes, appliance efficiency

standards, contractor training costs, and

other relevant factors, including the

quantities of regulated substances available

from reclaiming, prior production, or prior

import;

economic

costs

and

environmental impacts, as compared to

historical trends; and

(D) the remaining phase-down period for

regulated substances under the final rule

issued under subsection (e)(3), if applicable.

(5) Evaluation

In carrying out this subsection, the Administrator

shall-(A) evaluate substitutes for regulated

substances in a sector or subsector, taking

into account technological achievability,

commercial

demands,

safety,

overall

economic costs and environmental impacts,

and other relevant factors; and

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(B) make

the

evaluation

under

subparagraph (A) available to the public,

including the factors associated with the

safety of those substitutes.

(6) Effective date of rules

No rule under this subsection may take effect

before the date that is 1 year after the date on

which the Administrator promulgates the

applicable rule under this subsection.

(7) Applicability

(A) Definition of retrofit

In this paragraph, the term “retrofit” means

to upgrade existing equipment where the

regulated substance is changed, which-(i) includes the conversion of equipment

to achieve system compatibility; and

(ii) may include changes in lubricants,

gaskets, filters, driers, valves, o-rings, or

equipment components for that purpose.

(B) Applicability of rules

A rule promulgated under this subsection

shall not apply to-(i) an essential use under clause (i) or

(iv) of subsection (e)(4)(B), including any

use for which the production or

consumption of the regulated substance

is extended under clause (v)(II) of that

subsection; or

(ii) except for a retrofit application,

equipment in existence in a sector or

subsector before December 27, 2020.

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(j) International cooperation

(1) In general

Subject to paragraph (2), no person subject to the

requirements of this section shall trade or

transfer a production allowance or, after January

1, 2033, export a regulated substance to a person

in a foreign country that, as determined by the

Administrator, has not enacted or otherwise

established within a reasonable timeframe after

December 27, 2020, the same or similar

requirements

otherwise

undertaken

commitments regarding the production and

consumption of regulated substances as are

contained in this section.

(2) Transfers

Pursuant to paragraph (1), a person in the United

States may engage in a trade or transfer of a

production allowance-(A) to a person in a foreign country if, at the

time of the transfer, the Administrator

revises the number of allowances for

production under subsection (e)(2), as

applicable, for the United States such that

the aggregate national production of the

regulated substance to be traded under the

revised production limits is equal to the least

of-(i) the maximum production level

permitted for the applicable regulated

substance in the year of the transfer

under this section, less the production

allowances transferred;

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(ii) the maximum production level

permitted for the applicable regulated

substances in the transfer year under

applicable law, less the production

allowances transferred; and

(iii) the average of the actual national

production level of the applicable

regulated substances for the 3-year

period ending on the date of the transfer,

less

the

production

allowances

transferred; or

(B) from a person in a foreign country if, at

the time of the trade or transfer, the

Administrator finds that the foreign country

has revised the domestic production limits of

the regulated substance in the same manner

as provided with respect to transfers by a

person in United States under this

subsection.

(3) Effect of transfers on production limits

The Administrator may-(A) reduce the production limits established

under subsection (e)(2)(B) as required as a

prerequisite to a transfer described in

paragraph (2)(A); or

(B) increase

the

production

limits

established under subsection (e)(2)(B) to

reflect production allowances acquired under

a trade or transfer described in paragraph

(2)(B).

(4) Regulations

The Administrator shall--

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(A) not later than 1 year after December 27,

2020, promulgate a final rule to carry out this

subsection; and

(B) not less frequently than annually, review

and, if necessary, revise the final rule

promulgated pursuant to subparagraph (A).

(k) Relationship to other law

(1) Implementation

(A) Rulemakings

The Administrator may promulgate such

regulations as are necessary to carry out the

functions of the Administrator under this

section.

(B) Delegation

The Administrator may delegate to any

officer or employee of the Environmental

Protection Agency such of the powers and

duties of the Administrator under this section

as the Administrator determines to be

appropriate.

Sections 113, 114, 304, and 307 of the Clean

Air Act (42 U.S.C. 7413, 7414, 7604, 7607)

shall apply to this section and any rule,

rulemaking, or regulation promulgated by

the Administrator pursuant to this section as

though this section were expressly included

in title VI of that Act (42 U.S.C. 7671 et seq.).

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(2) Preemption

(A) In general

Subject to subparagraph (B), during the 5year period beginning on December 27, 2020,

and with respect to an exclusive use for which

a mandatory allocation of allowances is

provided under subsection (e)(4)(B)(iv)(I), no

State or political subdivision of a State may

enforce a statute or administrative action

restricting the management or use of a

regulated substance within that exclusive

use.

(B) Extension

(i) In general

Subject to clause (ii), if, pursuant to

subclause (I) of subsection (e)(4)(B)(v),

the

Administrator

authorizes

additional period under subclause (II) of

that subsection for the production or

consumption of a regulated substance for

exclusive

use

described

subparagraph (A), no State or political

subdivision of a State may enforce a

statute

administrative

action

restricting the management or use of the

regulated

substance

within

that

exclusive use for the duration of that

additional period.

(ii) Limitation

The period for which the limitation under

clause (i) applies shall not exceed 5 years

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from the date on which the period

described in subparagraph (A) ends.

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.