Amicus Curiae Brief — RMS of Georgia, LLC, dba Choice Refrigerants, Petitioner v. Environmental Protection Agency, et al.

No. 25-1079

In the

Supreme Court of the United States

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RMS OF GEORGIA, LLC, D/B/A CHOICE REFRIGERANTS,

v.

Petitioners,

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

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On Petition for Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

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BRIEF OF AMICUS CURIAE

SOUTHEASTERN LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

─────────────────────────

JAMES V. F. DICKEY

Counsel of Record

BENJAMIN I. B. ISGUR

SOUTHEASTERN LEGAL FOUNDATION

560 W. Crossville Rd., Ste. 104

Roswell, GA 30075

(770) 977-2131

jdickey@southeasternlegal.org

bisgur@southeasternlegal.org

April 7, 2026

Counsel for Amicus Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

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

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................... 1

ARGUMENT .............................................................. 3

I. The plain text of the AIM Act does not contain

the Clean Air Act’s language setting allowances

using baseline-year production. ........................ 3

II. It is critical that this Court ensure that lower

courts hew closely to the ordinary meaning of

plain text as faithful agents of Congress. ......... 5

CONCLUSION ........................................................... 8

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TABLE OF AUTHORITIES

Cases

Alaska Airlines, Inc. v. Brock,

480 U.S. 678 (1987) ................................................. 6

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) ................................................... 4

IGas Holdings, Inc. v. EPA,

146 F.4th 1126 (D.C. Cir. 2025) ......................... 2, 5

King v. Burwell,

576 U.S. 473 (2015) ............................................. 2, 5

Kisor v. Wilkie,

588 U.S. 558 (2019) ................................................. 1

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ......................................... 1, 4, 5

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

583 U.S. 109 (2018) ................................................. 1

United States ex rel. Attorney General v. Delaware &

Hudson Co.,

213 U.S. 366 (1909) ................................................. 7

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ................................................. 1

West Virginia v. EPA,

597 U.S. 697 (2022) ............................................. 4, 5

Statutes

42 U.S.C. § 7671d(b)(1) .............................................. 3

42 U.S.C. § 7675 ..................................1, 2, 3, 4, 5, 6, 7

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42 U.S.C. § 7675(d)(1)(B)(i) ........................................ 3

42 U.S.C. § 7675(h)(5)(B) ........................................... 3

42 U.S.C. § 7675(k)(1)(c) ............................................ 3

Other Authorities

Amy Coney Barrett, Congressional Insiders and

Outsiders, 84 U. Chi. L. Rev. 2193 (2017) .............. 5

Amy Coney Barrett, Substantive Canons and

Faithful Agency, 90 Bos. U. L. Rev. 109 (2010) ..... 6

Antonin Scalia & Bryan Garner, Reading Law:

The Interpretation of Legal Texts (2012) ............ 6, 7

B. Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118 (2016) ............................ 6, 8

Frank H. Easterbrook, Do Liberals and

Conservatives Differ in Judicial Activism?,

73 U. Colo. L. Rev 1401 (2002) ............................... 8

Harvard Law School, The Antonin Scalia Lecture

Series: A Dialogue with Justice Elena Kagan on

the Reading of Statutes (Nov. 25, 2015) ................ 5

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INTEREST OF AMICUS CURIAE 1

Southeastern Legal Foundation (SLF) is a

national, nonprofit legal organization dedicated to

rebuilding the American Republic by reclaiming civil

liberties, protecting free speech, securing property

rights, and restoring constitutional balance. Since

1976, SLF has advocated, both in and out of the

courtroom, to protect individual liberty by restoring

constitutional balance. This aspect of its advocacy is

reflected in its regular representation and support of

those challenging government overreach and other

actions in violation of the constitutional framework.

See, e.g., Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583 U.S.

109 (2018); Util. Air Regul. Grp. v. EPA, 573 U.S. 302

(2014). SLF also regularly files amicus curiae briefs

with this Court about issues of agency overreach and

deference. See, e.g., Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024); Kisor v. Wilkie, 588 U.S. 558

(2019).

SUMMARY OF ARGUMENT

The D.C. Circuit used legislative history and the

text of the Clean Air Act to put words into the

American Innovation and Manufacturing Act of 2020

(AIM Act), 42 U.S.C. § 7675, that Congress did not.

The D.C. Circuit held that when Congress enacted the

AIM Act, it actually enacted a program identical to

“two predecessor cap-and-trade programs,” derived

from the Clean Air Act, even though Congress used

1 Rule 37 statement: No party’s counsel authored any of this

brief; Amicus alone funded its preparation and submission. Sup.

Ct. R. 37.6. Counsel of record for all parties received timely

notice of the intent to file this brief. Sup. Ct. R. 37.2.

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different language in those programs. See IGas

Holdings, Inc. v. EPA, 146 F.4th 1126, 1139 (D.C. Cir.

2025). “That is of course quite absurd, and the [D.C.

Circuit’s 25] pages of explanation make it no less so.”

King v. Burwell, 576 U.S. 473, 499 (2015) (Scalia, J.,

dissenting).

With its additions, the D.C. Circuit invented an

interpretation of the Act divorced from the actual

statutory text. It then called that unfounded

alternative reading plausible and applied, sub

silentio, the constitutional-doubt canon. Only through

this convoluted interpretive method could the court

manufacture constraints on the massive delegation of

legislative power in the AIM Act. This grave

departure from textualist principles shielded an

overbroad delegation from proper constitutional

scrutiny.

This Court should step in to correct this misuse of

the constitutional-doubt canon (and the use of

legislative history to replace unambiguous textual

silence). The Court should provide guidance to the

lower courts about the appropriate use of the canon.

The constitutional-doubt canon only applies where a

collision with the Constitution can be avoided by

selecting among multiple plausible constructions of a

statute. The D.C. Circuit never should have applied

the canon, because the reading of the AIM Act it

invented is implausible. Without a second plausible

reading, the AIM Act’s plain text—including silence—

must be read for conformity with the Constitution.

Anything else is an arrogation of legislative power

and an abdication of the judicial duty to confront the

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broad and unguided delegation of legislative power in

the AIM Act.

The Court should grant the petition for a writ of

certiorari to restrain Congress from giving the EPA

unbounded discretion to choose which private parties

are entitled to participate in a multibillion-dollar

market. The Court should use this opportunity to

provide guidance to lower courts on the proper mode

of statutory interpretation when addressing

congressional silence.

ARGUMENT

I. The plain text of the AIM Act does not

contain the Clean Air Act’s language setting

allowances using baseline-year production.

This Court’s intervention is needed because the

D.C. Circuit read into the AIM Act language that does

not exist, which courts may not do. The AIM Act and

the Clean Air Act do not have identical text, yet the

D.C. Circuit interpreted them identically. The AIM

Act and the Clean Air Act both establish cap-andtrade programs, but only the Clean Air Act includes

guidance about how to allocate allowances. The

difference in the statutory text is obvious.

The Clean Air Act explicitly directs the EPA to

allocate allowances based on the “quantity of such

substance produced by such person during the

baseline year.” 42 U.S.C. § 7671d(b)(1). The AIM Act

has no language mirroring this provision. Nor does it

have language incorporating by reference this

provision. Yet the AIM Act does incorporate several

other provisions of the Clean Air Act by reference. See

42 U.S.C. §§ 7675(d)(1)(B)(i), (h)(5)(B), (k)(1)(c).

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Under

established

canons

of

statutory

interpretation, there is only one conclusion to draw

from this: the laws are different. After all, “differences

in language like this convey differences in meaning.”

Henson v. Santander Consumer USA Inc., 582 U.S.

79, 86 (2017). The Clean Air Act directs the EPA to

set

allowances

dependent

on

baseline-year

production. The AIM Act does not.

Because the AIM Act lacks the legislative

guidance the Clean Air Act possesses, a reviewing

court must grapple with whether the AIM Act is an

impermissible delegation of legislative power. Rather

than do that, the D.C. Circuit inserted the Clean Air

Act’s guidance into the text. This violated basic

principles of statutory interpretation that this Court

must correct. That correction and guidance is

especially critical in the case of the D.C. Circuit, the

lower court which most often reviews the authority

and constitutionality of federal agencies. See, e.g.,

Loper Bright Enters., 603 U.S. 369 (reviewing opinion

of the D.C. Circuit); West Virginia v. EPA, 597 U.S.

697 (2022) (same).

The only reliable indicator of Congress’ intent is

the AIM Act’s textual silence about how to distribute

allowances. That silence should have been read

according to its ordinary meaning—silence. The D.C.

Circuit should then have decided whether that lack of

guidance resulted in an impermissible delegation of

core legislative power.

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II. It is critical that this Court ensure that lower

courts hew closely to the ordinary meaning

of plain text as faithful agents of Congress.

The D.C. Circuit held that because the AIM Act

does not include the baseline-year production

language of the Clean Air Act, it does include the

baseline-year production language of the Clean Air

Act. IGas Holdings, 146 F.4th at 1138. This circular

holding “is of course quite absurd,” and defies longestablished rules of statutory construction. King, 576

U.S. at 499 (Scalia, J., dissenting). This Court should

correct at least three critical errors in the D.C.

Circuit’s statutory interpretation to guide the lower

courts.

First, rather than rely on the unambiguous silence

in the statutory text, the D.C. Circuit used stray

comments from two congressmen in a committee

hearing to divine Congress’ intent and invent an

alternative construction. See IGas Holdings, 146

F.4th at 1139. This flies directly in the face of the

textualist mode of statutory interpretation that the

members of this Court have blessed. See, e.g., Amy

Coney Barrett, Congressional Insiders and Outsiders,

84 U. Chi. L. Rev. 2193, 2193 (2017) (“[O]ne would be

hard pressed to find anyone willing to say that a court

should depart from statutory text to better serve

Congress’s purpose.”); West Virginia v. EPA, 597 U.S.

at 779 (Kagan, J., dissenting) (quoting Harvard Law

School, The Antonin Scalia Lecture Series: A

Dialogue with Justice Elena Kagan on the Reading of

Statutes (Nov. 25, 2015)); Loper Bright Enters., 603

U.S. at 443 n.6 (Gorsuch, J., concurring).

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Under a textualist view, “the statutory text is the

only reliable indication of congressional intent.” Amy

Coney Barrett, Substantive Canons and Faithful

Agency, 90 Bos. U. L. Rev. 109, 112 (2010); see also B.

Kavanaugh, Fixing Statutory Interpretation, 129

Harv. L. Rev. 2118, 2129–30 (2016) (“[T]extualists

look to legislative history only infrequently, and even

then only to resolve cases of true statutory ambiguity.

They never use legislative history to depart from

otherwise clear statutory text . . . .”). The stray

statements by congressmen in committee hearings

relied on by the D.C. Circuit are “so far removed from

what the full house could possibly have had in mind

that their asserted relevance is comical.” Antonin

Scalia & Bryan Garner, Reading Law: The

Interpretation of Legal Texts, 376 (2012).

Second, the D.C. Circuit ignored the omitted-case

canon: “a matter not covered is to be treated as not

covered.” Scalia & Garner, 93. The AIM Act is simply

silent on how allowances are to be distributed, and

“Congress’ silence is just that—silence.” Alaska

Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).

Silence is the best reading of silence.

Third, the D.C. Circuit ignored the many canons

that explain that different statutory texts must have

different meanings. This idea is present in the

negative-implication canon, the consistent-usage

canon, and the surplusage canon, all of which express

that when Congress writes two similar statutes in

different ways, they have different meanings. Cf.

Scalia & Garner, 107 (negative-implication canon),

170 (consistent-usage canon), 174 (surplusage canon).

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The D.C. Circuit threw off the shackles of both the

AIM Act’s text and the interpretive methods just

described by crafting from whole cloth an alternative

meaning to the AIM Act. With that alternative in

hand, the court applied, sub silentio, the

constitutional-doubt canon. The D.C. Circuit acted as

an impromptu legislature, not a court.

To be fair, the D.C. Circuit gets right that this

Court has held that “where a statute is susceptible of

two constructions, by one of which grave and doubtful

constitutional questions arise and by the other of

which such questions are avoided, our duty is to adopt

the latter.” United States ex rel. Att’y Gen. v. Del. &

Hudson Co., 213 U.S. 366, 408 (1909); see also Scalia

& Garner, 247, 251 (describing this as the

constitutional-doubt canon, a distinct one of two

components of the constitutional avoidance canon).

But the D.C. Circuit was wrong to create a second

plausible construction where there was none.

Obviously, one plausible construction of the AIM

Act’s silence is that it is silent as to how the EPA was

to distribute allowances. The D.C. Circuit concluded

that a second plausible construction is that the AIM

Act directs that allowances be distributed in the same

way as the Clean Air Act. But the text itself contains

no evidence of this idea and contains much evidence

of its opposite.

Congress referenced the Clean Air Act elsewhere

in the AIM Act, but it did not reference the allowancedistribution scheme it used. Nor did Congress write a

similar standalone distribution provision into the

AIM Act—even one that hints at the same idea. Yet

the D.C. Circuit divined the inclusion of a provision

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that describes how allowances should be distributed

from unambiguous statutory silence. Then, having

concluded that these two constructions were both

plausible, the D.C. Circuit applied the constitutionaldoubt canon in silence to place its newly-woven

construction of the AIM Act in the crosshairs of

Petitioner’s nondelegation challenge and uphold its

rewrite of the AIM Act.

This case appears to be one more example of the

constitutional-doubt canon permitting a court to “act[]

as a roving commission to rewrite statutes to taste.”

Frank H. Easterbrook, Do Liberals and Conservatives

Differ in Judicial Activism?, 73 U. Colo. L. Rev 1401,

1405 (2002); see also Kavanaugh, 129 Harv. L. Rev. at

2146 (critiquing constitutional avoidance as

“sometimes look[ing] more like judicial abdication—a

failure to confront the constitutional question raised

by the statute as written—than judicial restraint”).

The constitutional-doubt canon should never have

been applied because there is only one plausible

construction of Congressional silence: silence. This

Court should grant certiorari not only to correct this

error but to guide lower courts on the proper methods

of statutory interpretation.

CONCLUSION

The Court should grant the petition for a writ of

certiorari to provide guidance to lower courts on the

proper mode of statutory interpretation when

Congress is silent. Simply put, lower courts should

not add text and put words in Congress’ mouth to

rescue statutes from serious constitutional doubts,

and this Court should say so.

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Respectfully submitted,

JAMES V. F. DICKEY

Counsel of Record

BENJAMIN I. B. ISGUR

SOUTHEASTERN LEGAL FOUNDATION

560 W. Crossville Rd., Ste. 104

Roswell, GA 30075

(770) 977-2131

jdickey@southeasternlegal.org

bisgur@southeasternlegal.org

April 7, 2026

Counsel for Amicus Curiae