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

Supreme Court briefApr 13, 2026

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No. 25-1079

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

♦

BRIEF OF AMICUS CURIAE

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

♦

April 13, 2026

Ivan L. London

Counsel of Record

Grady J. Block

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

ilondon@mslegal.org

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Table of Contents ...........................................

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

iii

Identity and Interest of Amicus Curiae ........

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

Argument........................................................

I. The Nondelegation Doctrine Should

Mean Something. ......................................

II. The Intelligible-Principle Inquiry Is a

Structural Constitutional

Requirement. ............................................

A. The nondelegation inquiry is

distinct from ordinary statutory

construction. ........................................

B. Whitman forecloses judicial

reconstruction of an intelligible

principle that Congress failed to

enact. ....................................................

C. Gundy does not authorize courts to

rescue standardless delegations

through broad statutory context. .........

D. This Court should step in to correct

the lower court’s error. .........................

E. The lower court’s approach will have

nationwide implications. .....................

III.This Court Should Clarify the Standard

and Remand for Reconsideration. ............

A. Loper Bright instructs lower courts

on the duty to judge, not to legislate. ..

B. Seven County instructs lower courts

on not over-assuming their roles. ........

C. This case provides closure for judges ..

Conclusion ......................................................

TABLE OF AUTHORITIES

Cases

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

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

5, 7, 19, 20

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946) ...................................

Bond v. United States,

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

CFTC v. Schor,

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

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

Council, Inc.,

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

23, 24

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

575 U.S. 43 (2015) ...................................

Epic Sys. Corp. v. Lewis,

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

FCC v. Consumers’ Rsch.,

620 U.S. 656 (2025)................

iii

5, 6, 8, 15

Gundy v. United States,

588 U.S. 128 (2019)................

5, 12, 13, 14, 21

Henson v. Santander Consumer USA Inc.,

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

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

448 U.S. 607 (1980)..................................

9, 15

INS v. Chadha,

462 U.S. 919 (1983)..................................

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

276 U.S. 394 (1928)..................................

4,7

Jama v. ICE,

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

Learning Res., Inc. v. Trump,

607 U.S. 680 (2026)..................................

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024)..............

4, 7, 23, 24, 26, 27

Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803) ...........

Mistretta v. United States,

488 U.S. 361 (1989)..................................

Opp Cotton Mills, Inc. v. Adm’r of Wage & Hour Div.,

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

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935).............................. 5, 7, 19, 20

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

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

Seven County Infrastructure Coalition v. Eagle

County,

605 U.S. 168 (2025)................

4, 24, 25, 26, 27

Smietanka v. First Tr. & Sav. Bank,

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

Strycker’s Bay Neighborhood Council, Inc. v. Karlen,

444 U.S. 223 (1980)..................................

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc.,

435 U.S. 519 (1978)..................................

Whitman v. American Trucking Associations,

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

9, 10, 11, 16

Statutes

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

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

3,14

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

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

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

Mountain States Legal Foundation is a

nonprofit, public-interest legal foundation organized

under the laws of the State of Colorado. Founded in

1977, Mountain States is dedicated to individual

liberty, the right to own and use property, limited and

ethical government, and free enterprise.

Mountain States recently launched the Center

for American Prosperity & Energy (we call it CAPE),

which is a dedicated legal center focused on protecting

energy producers, energy users, landowners, and

every American from government overreach. Wearing

our CAPE, we fight against the systemic disregard of

our Nation’s Constitution and laws, and against the

weaponization of those same laws against the

Nation’s prosperity.

This case falls squarely within CAPE’s mission.

The AIM Act’s standardless delegation to EPA to

reorder a multibillion-dollar energy-commodity

market with no limiting principle enacted by Congress

1 Pursuant to the Court’s rules, we can say that amicus

curiae affirms that no counsel for a party authored this brief in

whole or in part, and no person other than amicus curiae, its

members, or its counsel made a monetary contribution to its

preparation or submission. Further, counsel of record received

timely notice of the intent to file the brief.

is precisely the kind of unlawful federal overreach

that CAPE confronts. We want the separate branches

of government to do their jobs—not more, and as here,

not less. If Congress wants to make a plan that phases

out certain compounds, empower EPA to implement

that plan, and punish noncompliance, then Congress

must say clearly where EPA’s authority ends and give

everyone a guiding principle on how to see that limit.

When Congress fails to do so, the federal courts must

fix the mistake.

SUMMARY OF ARGUMENT

In the AIM Act, Congress granted to the

Environmental Protection Agency some authority to

allocate “allowances” in a multibillion-dollar market

for hydrofluorocarbons. The statute prescribes a

phasedown schedule and a baseline calculation, but it

is silent on the most consequential economic question

the delegation entails: how is the agency supposed to

distribute the valuable allowances among market

participants? Because of that silence, it is

unconstitutional.

The nondelegation doctrine should mean

something. In this case, it means that Congress

should have put boundaries on the federal regulators

before Congress let them loose. But Congress did not

do that—so the AIM Act is unconstitutional. The

fundamental flaw in the proceedings leading to the

request for review here is that the lower court tried to

salvage an intelligible principle where none existed

in the first place. The lower courts should not try so

hard to save Congress from itself. And that is why this

Court should step in now: if Congress does not put the

limiting intelligible principle in the statute itself,

then the lower courts should not invent that principle

on Congress’s behalf. But someone—this Court—

needs to tell those lower federal judges how to do it.

ARGUMENT

Can Congress turn federal regulators loose in

the way it has done via the AIM Act? To its credit and

understandably, the petitioner in this case focuses on

Congress and the Executive Branch. But what is the

role for the lower federal courts? For a court reviewing

the Act, what do you do with this? Where is the

boundary? Using the term of art, what is the limiting

intelligible principle that can tell the people of this

Nation where the federal regulators must stop? What

if the people want to stop the regulators?

Beyond a narrow mandate to reserve roughly

two percent of allowances for “essential uses,”

42 U.S.C. § 7675(e)(4)(B), the AIM Act provided no

textual criteria—no standard, no guidepost, no

limiting principle—for the allocation of the vast

remainder. Congress gave EPA a blank check to

reorder an entire industry.

Can Congress do that? The petitioners rightly

focus on Congress and the Executive Branch. But

what is the role for the lower federal courts? What is

the limiting intelligible principle that tells the

people of this Nation where federal regulators must

stop?

When Congress empowers regulators, it must

provide an “intelligible principle” that limits what

those regulators can do, J.W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 409 (1928), so that they

implement Congress’s will rather than exercise their

own unbounded discretion. But when Congress does

not put that limit in the statute, can a court—like the

lower court here—invent an intelligible principle to

save an overreaching government from itself?

No. When Congress delegates its power to make

the laws, it must be clear about the limits it imposes

on those receiving that power. On its face, this is a

Congress-and-EPA problem. But it is really a federalcourts problem: the lower court went beyond the

statute to invent an intelligible principle where none

existed. That was error, and the Court should take

this case to correct it.

This Court can help the lower courts

understand their roles vis-à-vis the other branches.

Seven County Infrastructure Coalition v. Eagle

County, 605 U.S. 168 (2025); Loper Bright Enters. v.

Raimondo, 603 U.S. 369 (2024). Accordingly,

Mountain States writes as amicus curiae in support of

the petitioner’s request that the Court take this case.

The Nondelegation Doctrine Should Mean

Something.

The intelligible-principle requirement is a

constitutional command, not a suggestion. Yet in the

nearly nine decades since this Court struck down a

statute on nondelegation grounds, see A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S. 495

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

(1935), the doctrine has atrophied into a formality.

Lower courts treat it as a threshold cleared by any

statute that gestures toward a vaguely discernible

principle. The result is a constitutional guide rail that

everyone acknowledges but no one enforces—a

structural safeguard that protects nothing.

That situation is untenable. A constitutional

requirement that is by practice impossible to violate

is no requirement at all. As five sitting Justices have

recognized, the nondelegation doctrine must do real

work if Article I’s vesting of legislative power is to

retain meaning. See Gundy v. United States, 588 U.S.

128, 148–68 (2019) (Gorsuch, J., joined by Roberts,

C.J., and Thomas, J., dissenting); id. at 148 (Alito, J.,

concurring in the judgment); see also FCC v.

Consumers’ Rsch., 606 U.S. 656, 672–73 (2025). This

case presents the Court with an opportunity—not to

revolutionize the doctrine, but to ensure that the

standard it has already articulated is faithfully

applied. The intelligible-principle test should not be

more demanding; but lower courts cannot render it

meaningless in their attempts to enable more

government.

II.

The Intelligible-Principle Inquiry Is a

Structural Constitutional Requirement.

A. The nondelegation inquiry is distinct

from ordinary statutory construction.

The Constitution’s first substantive statement

is uncompromising: “All legislative Powers herein

granted shall be vested in a Congress of the United

States.” U.S. Const. art. I, § 1. This Vesting Clause

carries a corollary structural limitation that is

absolute: Congress may not transfer to another

branch the power to make the law. As this Court

recently reaffirmed, the legislative power “belongs to

the legislative branch, and to no other.” FCC v.

Consumers’ Rsch., 606 U.S. at 672. That limitation is

not a mere formalism; “the 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). To protect this

boundary, this Court has consistently held that when

Congress confers decision-making authority, it must

“lay down by legislative act an intelligible principle to

which the person or body authorized to [act] is

directed to conform.” J.W. Hampton, Jr. & Co., 276 at

409; see also Mistretta v. United States, 488 U.S. 361,

371–72 (1989). That principle must reflect Congress’s

own policy judgment—not leave it to the executive

branch or the courts to supply the missing boundaries.

Panama Refining Co. v. Ryan, 293 U.S. 388, 421

(1935) (emphasizing that Congress itself must “lay

down its policies” and could not transfer unfettered

discretion to make policy choices absent standards);

A.L.A. Schechter Poultry Corp., 295 U.S. at 529–30.

This constitutional character distinguishes the

nondelegation inquiry from every other question of

statutory meaning. When a court interprets a

statute—whether under the former Chevron

framework or the independent-judgment standard

restored by Loper Bright—it asks: what does this

statute mean? That is a question about legal content,

properly informed by text, structure, context, purpose,

and history. The underlying assumption is that

Congress has successfully enacted a valid law, and the

court’s task is to discern its meaning.

But when a court evaluates a nondelegation

challenge, it asks a categorically different question:

did Congress make a policy choice at all? That

question is about legislative accountability. It cannot

be answered by judicially reconstructing a policy

choice that Congress itself declined to make. As this

Court explained in Marbury v. Madison, it is

“emphatically the province and duty of the judicial

department to say what the law is.” 5 U.S. (1 Cranch)

137, 177 (1803). But the nondelegation inquiry

highlights what Congress did wrong or failed to say—

rather than salvaging something that Congress never

said.

Deciding whether an intelligible principle

exists is therefore a binary structural threshold. At

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). Either Congress clearly stated an

intelligible principle in the text, or it did not. If

Congress failed to make the policy choice explicitly, it

has failed to execute its constitutional duty, and the

federal courts cannot let extratextual context supply

the missing content.

The distinction matters because the tools of

ordinary statutory construction are designed to

identify meaning—not to measure legislative

responsibility. A court may properly consult

legislative history to determine what a statutory term

means. But if the question is whether Congress

enacted a standard constraining executive discretion,

the answer must come from what Congress enacted,

not from what a court can assemble from the

surrounding legislative record. “It is the hard choices,

and not the filling in of the blanks, which must be

made by the elected representatives of the people.”

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

448 U.S. 607, 687 (1980) (Rehnquist, J., concurring in

the judgment). If the judiciary must sift through unenacted committee hearings to cobble together a

guiding standard, then it is the judiciary—not

Congress—that is legislating. To hold otherwise

would permit courts to cure the very constitutional

defect the nondelegation doctrine exists to prevent.

B. Whitman

forecloses

judicial

reconstruction

intelligible

principle that Congress failed to enact.

This Court’s decision in Whitman v. American

Trucking Associations, 531 U.S. 457 (2001),

establishes the dispositive principle. There, EPA

argued that even if the Clean Air Act lacked an

intelligible principle, the agency could cure the

constitutional defect by declining to exercise some of

the sweeping power it was granted. This Court

unanimously rejected that premise: an agency may

not “cure an unlawful delegation of legislative power

by adopting in its discretion a limiting construction of

the statute.” Id. at 472.

The Court’s reasoning was structural, not

merely doctrinal. The constitutional defect lies in the

statute itself—in what Congress failed to do at the

moment of enactment—not in how the delegated

power is subsequently exercised. “The very choice of

which portion of the power to exercise—that is to say,

the prescription of the standard that Congress had

omitted—would itself be an exercise of the forbidden

legislative authority.” Id. at 473. The Constitution

does not permit Congress to delegate standardless

power on the promise that the recipient will exercise

it responsibly.

The logic of Whitman extends inexorably to

courts. If an agency cannot cure a defective delegation

by voluntarily narrowing its own authority, neither

can a court cure it by interpretively narrowing the

statute’s scope through contextual inference. The

constitutional question is the same regardless of the

institutional actor attempting the rescue: did

Congress supply the constraint? If the answer

depends on materials that Congress did not enact—

inferences from statutory context, divinations from

legislative history, or reconstructions of legislative

purpose—then the constraint is judicially supplied,

not congressionally enacted. That is precisely the

constitutional defect Whitman identified and

foreclosed.

The case against judicial reconstruction is in

one respect stronger than the case against agency selfrestraint. When an agency declines to exercise some

of its delegated power, it at least acts within the

institutional channel Congress designated—an

executive body exercising executive discretion. The

constitutional defect, as Whitman explained, is that

the “prescription of the standard” is itself an exercise

of legislative authority. Id. at 473. But when a court

supplies the missing standard, the institutional

transgression is compounded: the judiciary exercises

legislative authority from a branch that is neither the

designated delegate nor the original delegator. The

result is a separation-of-powers violation that is not

merely equivalent to the agency-cure scenario

Whitman rejected—it is worse. The agency at least

has a colorable claim that it is implementing the

statute Congress passed. A court that reconstructs the

missing principle from legislative history and

unincorporated statutes is writing new law under the

guise of constitutional adjudication.

Nor can the constitutional-avoidance canon

justify the lower court’s approach. This Court has

recognized that courts should, where possible,

construe statutes to avoid constitutional difficulties.

See, e.g., CFTC v. Schor, 478 U.S. 833, 841 (1986). But

there are limits: a court “must not and will not carry

this to the point of … judicially rewriting” the statute.

Id. When the claimed constitutional defect is that

Congress failed to enact a constraining standard,

“avoiding” the problem by judicially supplying the

missing standard does not construe the statute—it

amends it. To invent a standard that is not present in

the text is to “graft something on the statute that is

not there.” Smietanka v. First Tr. & Sav. Bank, 257

U.S. 602, 606 (1922). The avoidance canon assumes

that Congress enacted a law that can bear a

narrowing construction. When Congress enacted no

constraining principle at all, there is nothing for the

canon to narrow.

C. Gundy does not authorize courts to

rescue

standardless

delegations

through broad statutory context.

The lower court drew heavily on Gundy v.

United States, 588 U.S. 128 (2019), for the proposition

that courts may “utilize all the tools of statutory

interpretation” to locate an intelligible principle. App.

at 2. But Gundy does not support so sweeping a

conclusion.

There is a fine but constitutionally significant

distinction between two propositions: (1) that a court

must construe a statute before evaluating a

nondelegation challenge, and (2) that broad statutory

context can rescue an otherwise standardless grant of

discretion. Gundy stands for the first proposition, not

the second.

The first proposition is uncontroversial. A court

must know what the statute means before it can

determine whether the statute supplies a sufficient

standard. Statutory construction is the necessary

predicate. But the second proposition—that the

process of construing a statute can itself generate the

intelligible principle that the statute’s operative text

fails to supply—converts a threshold step into a

substantive rescue operation. Under this approach, a

court faced with a standardless delegation could

always find an intelligible principle lurking

somewhere in the statutory scheme: in a statement of

purpose, a congressional finding, a legislative report,

or the general design of the regulatory program. That

approach would render the nondelegation doctrine a

nullity, because no federal statute exists in a

contextual vacuum.

Gundy did not endorse that result. The

plurality found the intelligible principle in SORNA’s

own enacted terms—in what the statute’s text

required the Attorney General to do—not in a

legislative purpose reconstructed from extrinsic

sources. Id. at 137–41. The plurality nowhere

suggested that context or history may supply a

principle Congress omitted. As Justice Gorsuch noted

in dissent, “if the separation of powers means

anything, it must mean that Congress cannot give the

executive branch a blank check to write a code of

conduct governing private conduct.” Id. at 171

(Gorsuch, J., dissenting). Lower courts that read

Gundy as a license to mine statutory context for

intelligible principles where the operative text

supplies none have misread the opinion and collapsed

the nondelegation inquiry into ordinary statutory

interpretation.

D. This Court should step in to correct the

lower court’s error.

The AIM Act is silent on the most consequential

economic question: how EPA is to allocate the newly

created, highly valuable allowances to market

participants. Aside from a narrow mandate to cover

“essential uses” (roughly two percent of the market),

id. § 7675(e)(4)(B), Congress provided no statutory

criteria for how EPA should distribute most of these

allowances. The allowance-allocation provision,

42 U.S.C. § 7675(e), contains no textual guideposts on

how to distribute or reallocate allowances that are

now indispensable for companies that produce or

consume those substances. The statute thus transfers

legislative power rather than merely authorizing

executive implementation. See Am. Power & Light Co.

v. SEC, 329 U.S. 90, 105 (1946) (Congress must

“clearly delineate[] the general policy” and “the

boundaries of th[e] delegated authority”).

The deficiency is not a matter of degree; it is

categorical. This Court has required that a delegation

provide “ascertainable and meaningful guideposts” for

the exercise of discretion. Consumers’ Rsch., 606 U.S.

at 681. The AIM Act’s allowance-allocation provision

contains none. It does not specify whether EPA should

allocate allowances on the basis of historical market

share,

competitive

bidding,

environmental

performance, first-come-first-served, or some other

criterion. It does not establish priorities among

competing claimants. It does not prescribe a method

for adjusting allocations over time as the phasedown

proceeds. It does not even identify the universe of

factors EPA must consider in making allocation

decisions. These are not regulatory details that

Congress left to agency judgment; they are the

fundamental policy choices that determine which

companies survive, which lose market access, and how

billions of dollars in economic value are distributed.

They are, in short, precisely the kind of “hard choices”

that “must be made by the elected representatives of

the people.” Am. Petroleum Inst., 448 U.S. at 687

(Rehnquist, J., concurring in the judgment).

Faced with this textual vacuum, the lower court

did not confront the defect. Instead, the court set out

to fix the statute to align with the court’s preferences.

Invoking its own circuit precedent, the panel declared

that it would “not confine [itself] 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 statute provides the

bounded discretion that the Constitution requires.”

App. at 15. Relying on this framework, the court

scoured legislative history, cited statements from a

subcommittee hearing, and inferred that Congress

“intended” EPA to model its cap-and-trade program

on Title VI of the Clean Air Act. Because Title VI

contained a specific historical market-share allocation

metric, 42 U.S.C. § 7671d(b), the lower court divined

that the AIM Act must implicitly contain the same

intelligible principle—even though Congress never

wrote it into the text.

The panel’s methodology is itself revealing.

Rather than applying this Court’s controlling

decisions—which ask whether Congress supplied the

constraint, Whitman, 531 U.S. at 472—the lower

court invoked its own circuit-level precedent as the

governing framework. That circuit precedent, in turn,

articulated a standard that this Court has never

endorsed: the proposition that courts may look to “the

factual background of the statute” to determine

whether “bounded discretion” exists. This formulation

subtly but fundamentally shifts the constitutional

inquiry.

Under this Court’s precedents, the question is

whether Congress put a clear limit in the statute.

Under the lower court’s formulation, the question

becomes whether a court, deploying an unbounded

array of “interpretive” tools, can reconstruct a

plausible account of what Congress maybe intended

the agency to do—or, worse, what the court itself

wishes the law said notwithstanding the text. The

former is a test of legislative performance; the latter

is a test of judicial ingenuity. They are not the same

inquiry, and they will not produce the same results.

Building on that, the lower court’s approach is

further wrong for at least three reasons.

First, this Court has repeatedly warned that

“legislative history is not the law.” Epic Sys. Corp. v.

Lewis, 584 U.S. 497, 523 (2018). Once Congress enacts

a statute, courts “do not inquire what the legislature

meant; only what the statute means.” Id. The

Constitution gives legal effect only to text that passed

both houses of Congress and was signed by the

President. By elevating a subcommittee hearing

statement over the enacted text, the lower court

treated the un-enacted hopes of a few legislators—the

ones that matched the court’s own preferences—as the

law of the land.

Second, the lower court’s approach violates the

bedrock principle that courts should not “read into

statutes words that aren’t there.” Romag Fasteners,

Inc. v. Fossil, Inc., 590 U.S. 212, 215 (2020). If

Congress intended to mandate a historical marketshare allocation for HFCs in the AIM Act, it could do

so, as evidenced by Title VI itself.

Congress chose not to enact that language.

“Differences in language like this convey differences

in meaning.” Henson v. Santander Consumer USA

Inc., 582 U.S. 79, 86 (2017).

Third, the AIM Act incorporates specific

provisions of the Clean Air Act, including penalty,

recordkeeping, and judicial review provisions. See

42 U.S.C. § 7675(k)(1)(C). Conspicuously absent from

that list is Title VI’s market-share allocation scheme.

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). The canon of expressio unius est exclusio

alterius suggests that Congress’s incorporation of

certain Clean Air Act provisions—and its conspicuous

omission of Title VI’s allocation standard—was

deliberate.

By mining legislative history to import

constraints from a wholly different statute, the lower

court really just drafted legislation that Congress did

not write. This collapses the nondelegation inquiry

into purposivism. If courts can borrow intelligible

principles from other statutes whenever Congress

passes a blank-check delegation, then the

nondelegation doctrine has no constitutional function.

Instead, it becomes a presumption of constitutionality

untethered from its structural moorings—and

Article I’s vesting of legislative power becomes, for all

practical purposes, a dead letter.

E. The lower court’s approach will have

nationwide implications.

The consequences of the lower court’s approach

extend well beyond this case. If adopted as the

governing methodology, it would ensure that no

nondelegation challenge could ever succeed. The

reason is straightforward: no federal statute is

enacted in a vacuum. Every statute has a legislative

history. Every statute exists within a broader

statutory context. Every statute was passed for some

discernible purpose. If these materials are sufficient

to supply the intelligible principle that the operative

text omits, then any delegation—no matter how

standardless—can be sustained by a sufficiently

creative judicial opinion. The nondelegation doctrine

would become not merely deferential but functionally

null: a constitutional requirement that is, by design,

impossible to violate.

That result cannot be squared with this Court’s

precedents. In Panama Refining and Schechter

Poultry, the Court struck down delegations precisely

because Congress had failed to make the fundamental

policy choices itself—even though both the National

Industrial Recovery Act and its surrounding

legislative

history

reflected

discernible

congressional purpose of combating the Great

Depression. 293 U.S. at 430; 295 U.S. at 529–30.

Purpose alone was not enough. Congress had to enact

the standard, not merely harbor the intention. If the

lower court’s approach had governed in 1935, both

Panama Refining and Schechter Poultry would have

come out the other way—because the NIRA’s

legislative history was replete with evidence of

congressional purpose. This Court rightly held that

purpose without enacted constraint is not enough.

The doctrinal concern is inseparable from a

structural one. The nondelegation doctrine exists not

merely as a formal limit on legislative drafting but as

a guarantee of democratic accountability. When

Congress writes the intelligible principle into the

statute’s text, the political process can function as the

Framers intended: voters can read the law, evaluate

the choices Congress made, and hold their

representatives accountable at the ballot box for the

consequences of those choices. The legislative process

itself—bicameralism, presentment, public debate,

recorded votes—ensures that the hard policy tradeoffs

are made through a process that is transparent and

politically answerable. See INS v. Chadha, 462 U.S.

919, 951 (1983) (emphasizing that the “prescribed

procedures” of bicameralism and presentment are

essential to “the exercise of legislative power”).

When courts supply the intelligible principle

from extratextual materials, this accountability

mechanism breaks down entirely. No one voted for a

subcommittee hearing statement. No one cast a

recorded vote on the proposition that the AIM Act

should be governed by Title VI’s market-share

methodology.

The legislative history on which the lower court

relied did not pass through the Article I, Section 7

process that the Constitution prescribes for the

making of law. By allowing this material to supply the

governing standard, the court below permitted

Congress to enjoy the best of both worlds: it enacted a

statute that delegates enormous economic power,

while avoiding the political cost of making the hard

allocation choices that delegation entails. As Justice

Gorsuch observed in his Gundy dissent, the

nondelegation doctrine “ensure[s] that the lines of

accountability would be clear: The sovereign people

would know, without ambiguity, whom to hold

accountable for the laws they would have to follow.”

588 U.S. at 155 (Gorsuch, J., dissenting). When a

court reconstructs the governing standard from

materials no voter ever endorsed, those lines of

accountability are severed.

The erosion of accountability carries a further

practical consequence for the regulated parties who

must order their affairs under the statute. When

Congress enacts an intelligible principle in the

statutory text, market participants can read the law

and know—before the agency acts, and before a court

is called upon to review the agency’s action—what

standard constrains the agency’s discretion. That ex

ante notice is a core function of the rule of law. But

when the intelligible principle exists only in a judicial

opinion reconstructing what Congress might have

intended, regulated parties have no way to know in

advance what standard governs. They must wait for

litigation to reveal the constraint, if one can be found

at all. In a market like HFCs, where allowances are

indispensable for ongoing business operations and

companies have invested billions of dollars in reliance

on the regulatory framework, this uncertainty

imposes real and substantial costs. The nondelegation

doctrine is, among other things, a protection for the

governed: it ensures that the rules of the game are set

by Congress, in advance, through the constitutionally

prescribed process—not manufactured after the fact

by judges interpreting the tea leaves of a

subcommittee hearing.

III.

This Court Should Clarify the Standard

and Remand for Reconsideration.

Mountain States here does not ask this Court

to overturn the nondelegation doctrine itself or to

impose a more demanding standard than this Court’s

precedents already require. We ask only that the

Court clarify for lower courts the proper method for

evaluating nondelegation challenges. This Court’s

recent decisions confirm both the need for such

clarification and the appropriateness of providing it.

A. Loper Bright instructs lower courts on

the duty to judge, not to legislate.

In Loper Bright Enterprises v. Raimondo, 603

U.S. 369 (2024), this Court overruled Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984), and held that courts must exercise

independent judgment in determining the meaning of

federal statutes. Loper Bright, 603 U.S. at 392.

Loper Bright’s relevance here is structural, not

doctrinal. The decision did not address the

nondelegation doctrine. But it reflects this Court’s

recognition that lower courts had been applying a

standard—there, Chevron deference—that distorted

the judicial role in reviewing agency action, and that

the correction required explicit instruction from this

Court.

The parallel to the present case is precise.

Lower courts have been applying the intelligibleprinciple standard in a way that collapses it into

ordinary statutory interpretation, stripping the

nondelegation

doctrine

its

independent

constitutional function. And Loper Bright made clear

that courts must exercise judgment based on “the

traditional tools of statutory construction, not

individual policy preferences.” Id. at 403. But the

requirement that courts interpret the law does not

grant them license to create the law when Congress

has remained silent. Here, the lower court did not

defer to the agency as under Chevron. Instead, it went

even further: it acted as a proxy legislature,

constructing a law that Congress did not enact. The

distortion is different, but the structural consequence

is the same: a lower court fails to discharge its

constitutional duty because it applies the wrong

standard.

The whole point of Loper Bright is that “the

interpretation of the meaning of federal statutes . . . is

exclusively a judicial function.” Id. at 387.

Interpretation is the province of the judiciary;

legislation is not. When a court identifies an

intelligible principle in the enacted text, it interprets.

When a court constructs an intelligible principle from

un-enacted legislative history and an unincorporated

statute, it legislates. Loper Bright tells lower courts to

do the former, not the latter.

B. Seven County instructs lower courts on

not over-assuming their roles.

Seven County Infrastructure Coalition v. Eagle

County, 605 U.S. 168 (2025), reinforces the point from

the opposite direction. Although arising under NEPA,

its teaching on judicial role applies directly to the

nondelegation context. The Court emphasized that

courts “play only a limited role” in reviewing agency

decisions and must not substitute their own policy

preferences, micromanage agency choices, or interject

themselves into areas of agency discretion. Id. at 177,

182–83. The Court further stressed that courts must

not impose extratextual requirements on agencies

“under the guise” of judicial review. Id. at 184 quoting

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519, 558

(1978). “The political process, and not judicial review,

provides the appropriate forum in which to air policy

disagreements.” Id. at 192 (internal quotation marks

omitted). NEPA itself “does not authorize a court to

‘interject itself within the area of discretion . . . as to

the choice of the action to be taken’ by the agency.” Id.

at 185 quoting Strycker’s Bay Neighborhood Council,

Inc. v. Karlen, 444 U.S. 223, 227–28 (1980).

Seven County’s central principle is that judicial

review respects allocation of authority: Congress

makes the legislative choices; agencies implement

within those bounds; courts ensure the bounds are

respected. When a lower court supplies an intelligible

principle from materials Congress did not enact, it

does not respect those boundaries—it rewrites them.

Judges should not assume non-judge jobs, nor should

they write legal fiction. That is precisely the kind of

judicial overreach Seven County cautioned against.

C. This case provides closure for judges.

Together, Loper Bright and Seven County

supply the two structural bookends of this brief’s

argument—and this case presents the missing third

panel. Loper Bright holds that courts must not

abdicate their interpretive duty by deferring to

agencies. Seven County holds that courts must not

usurp the agency’s procedural discretion by imposing

extratextual requirements when the agency acts

within valid statutory bounds. The missing piece is

the proper instruction on the nondelegation doctrine:

courts must not usurp the legislature’s duty to make

the law when performing a nondelegation analysis.

The three principles are complementary and

mutually reinforcing. Each corrects a distinct

pathology in lower-court practice; taken together,

they provide a comprehensive account of the judicial

role in cases involving agency action: interpret the law

independently (Loper Bright); do not micromanage

agencies acting within the law (Seven County); and do

not rewrite the law to save it from constitutional

infirmity (this case).

This case is an appropriate vehicle because the

question it presents is methodological, not

substantive. Mountain States, here, does not ask the

Court to decide whether the AIM Act’s delegation

survives or fails the intelligible-principle test.

No, Mountain States asks the Court to help the

lower courts understand how to do their jobs; it is a

question of constitutional methodology that will guide

every future nondelegation challenge and that leaves

the merits to the lower court on remand. When a lower

court encounters a statute that transfers massive

regulatory power without any guiding standard, the

court’s job is to recognize the constitutional defect—

not to paper over it. By permitting Congress to punt

hard choices to unaccountable agencies and then

constructing intelligible principles out of legislative

history to validate that punt, the lower court

subverted the very accountability that Article I

demands. As Justice Thomas recently observed, “The

Constitution’s separation of powers forbids Congress

from delegating core legislative power to the

President.” Learning Res., Inc. v. Trump, 607 U.S. 680

(2026) (Thomas, J., dissenting). It similarly forbids

the Judiciary from assisting in that delegation by

manufacturing standards that Congress omitted.

The lower court’s decision did the opposite of

what Loper Bright and Seven County require. By

“utiliz[ing] all the tools of statutory interpretation” to

salvage an intelligible principle where none

existed, the lower court compounded the separationof-powers violation: Congress failed its Article I duty;

the court supplied the choice anyway. That

misapplication requires correction.

CONCLUSION

For the foregoing reasons, the Court should

grant the petition for a writ of certiorari.

Respectfully submitted,

Ivan L. London

Counsel of Record

Grady J. Block

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado

80227

(303) 292-2021

ilondon@mslegal.org

April 13, 2026

Attorneys for Amicus Curiae

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.