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

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

PETITIONER,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE HEATING, AIRCONDITIONING & REFRIGERATION

DISTRIBUTORS INTERNATIONAL AND

PLUMBING-HEATING-COOLING

CONTRACTORS—NATIONAL ASSOCIATION

SUPPORTING RESPONDENTS

JONATHAN S. MARTEL

ELISABETH S. THEODORE

Counsel of Record

ADAM MASUROVSKY

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

elisabeth.theodore@arnoldporter.com

RULE 29.6 STATEMENT

Heating, Air-conditioning, & Refrigeration

Distributors International (“HARDI”) is a nonprofit,

nonstock trade association. HARDI states it has no

parent company, and no publicly held company has a 10%

or greater ownership interest.

Plumbing-Heating

Cooling

Contractors—

National Association (“PHCC”) is a nonprofit, nonstock

trade

association.

Plumbing-Heating

Cooling

Contractors—National Association states it has no parent

company, and no publicly held company has a 10% or

greater ownership interest.

(i)

TABLE OF CONTENTS

Page

Interests of Amici Curiae ...................................................1

Introduction and Summary of Argument..........................2

Argument ..............................................................................4

I.

EPA Has Consistently Used Historical

Market Share To Implement Cap-AndTrade Programs For Refrigerants, And

Congress Modeled the AIM Act After

Those Programs ......................................................4

Ii.

The AIM Act’s Unambiguous Intent To

Establish a Market-Based Allowance

Allocation System Makes This Case a Poor

Vehicle For Reconsideration of the NonDelegation Doctrine ...............................................11

Iii.

Finding the AIM Act’s Allowance

Allocation Provisions Unconstitutional

Would Have Devastating Consequences for

the Domestic Refrigerant Industry .....................16

Conclusion ...........................................................................20

(ii)

TABLE OF AUTHORITIES

Cases

Page(s)

Am. Fed'n of Gov't Emps. v. FLRA,

46 F.3d 73 (D.C. Cir. 1995) ............................................. 12

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946) ............................................................ 15

FCC v. Consumers' Rsch.,

606 U.S. 656 (2025) .......................................................... 15

IGas Holdings, Inc. v. Env't Prot. Agency,

146 F.4th 1126 (D.C. Cir. 2025)................................ 13, 16

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .......................................................... 15

Statutes

42 U.S.C.

§ 7671(2) ............................................................................. 9

§ 7671a ................................................................................ 9

§ 7671c ............................................................................ 7, 9

§ 7671d ............................................................................ 7, 9

§ 7671f ............................................................................. 7, 9

§ 7675(c).............................................................................. 9

§ 7675(e) ............................................................................. 9

§ 7675(e)(1) ....................................................................... 12

§ 7675(e)(2) ................................................................... 9, 16

§ 7675(e)(2)(A) ................................................................. 12

§ 7675(e)(2)(D) ................................................................. 12

§ 7675(e)(3) ................................................. 9, 11, 12, 15, 16

Pub. L. No. 101-549, §§ 601–618, 104 Stat. 2399, 2648–

2672 (1990) (codified at 42 U.S.C. §§ 7671–7671q)......... 6

Pub. L. No. 116-260, § 103, 134 Stat. 1182,

2255 (2020) (codified at 42 U.S.C. § 7675) ....................... 8

(iii)

iv

Regulations

Page(s)

53 Fed. Reg. 30,566 (Aug. 12, 1988).................................... 6

57 Fed. Reg. 33,754 (July 30, 1992) ......................... 7, 10-11

60 Fed. Reg. 24,970 (May 10, 1995) .................................... 7

74 Fed. Reg. 66,412 (Dec. 15, 2009) .................................... 7

86 Fed. Reg. 55,116 (Oct. 5, 2021) ................................. 8, 10

Other Authorities

An Economic Analysis of the U.S. HVACR

Equipment and Water Heater Manufacturing

Industry: A Report Prepared for the AirConditioning, Heating, and Refrigeration

Institute (July 2023) ................................................. 17, 18

Comments of AHRI, Phasedown of

Hydrofluorocarbons: Establishing the Allowance

Allocation and Trading Program Under the AIM

Act, No. EPA-HQ-OAR-2021-0044 (Jul. 7, 2021),

https://www.regulations.gov/comment/EPA-HQOAR-2021-0044-0170....................................................... 17

Comments of The Chemours Company FC, LLC,

Phasedown of Hydrofluorocarbons: Establishing the

Allowance Allocation and Trading Program Under

the AIM Act, No. EPA-HQ-OAR-2021-0044 (Feb. 26,

2021), https://www.regulations.gov/comment/EPAHQ-OAR-2021-0044-0025 ............................................... 14

Cong. Rsch. Serv., RL30853, Clean Air Act: A Summary

of the Act and Its Major Requirements (2022) .............. 8

HVACR Manufacturing: Economic Trends and

Insights: A Report Prepared for the Alliance for

Responsible Atmospheric Policy and AHRI

(Summer 2025) ................................................................ 18

v

Other Authorities

Page(s)

Harvard Business School Digital Initiative, DuPont

and Honeywell: How Two Competitors Came

Together to Fight Climate Change,

https://d3.harvard.edu/platformrctom/submission/dupont-and-honeywell-how-twocompetitors-came-together-to-fight-climate-change/

(Nov. 4, 2016) ................................................................... 13

Mark Roberts, Finishing the Job: The Montreal

Protocol Moves to Phase Out HFCs,

32 Nat. Res. & Env't 7 (2018) ....................................... 7, 8

Montreal Protocol on Substances that Deplete

the Ozone Layer arts. 2A, 2B, Sept. 16, 1987,

1522 U.N.T.S. 3............................................................ 5, 20

Oversight of the Environmental Protection Agency:

Hearing on S.B. 2754 Before the S. Subcomm. on

Env't & Pub. Works, 116th Cong. 2 (2020) ............... 9, 10

Promoting American Innovation and Jobs: Legislation

to Phase Down Hydrofluorocarbons: Hearing on

H.R. 5544 Before the H. Subcomm. on Env't &

Climate Change of the H. Comm. on Energy & Com.,

116th Cong. 2 (2020) ....................... 9, 10, 11, 14, 15, 19-20

Robert W. Hahn, The Political Economy of

Instrument Choice: An Examination of the U.S.

Role in Implementing the Montreal Protocol,

83 Nw. U. L. Rev. 592 (1989)...................................... 6, 13

U.S. EPA, The Clean Air Act-Highlights of the

1990 Amendments (1990),

https://www.epa.gov/sites/default/files/201511/documents/the_clean_air_act__highlights_of_the_1990_amendments.pdf .................... 7

INTERESTS OF AMICI CURIAE1

Heating,

Air-conditioning

&

Refrigeration

Distributors International (“HARDI”) is a 501(c)(6) nonprofit trade association. HARDI has more than 1,100

member companies who represent an estimated 70

percent of the U.S. wholesale distribution market of

heating, ventilation, air-conditioning, and refrigeration

(“HVACR”) equipment, supplies, and controls.

The

Plumbing-Heating-Cooling

Contractors—

National Association (“PHCC”), a 501(c)(6) non-profit, is

the oldest construction trades association in the country.

It represents approximately 3,200 plumbing and HVACR

contractors employing over 64,000 professionals across

the country. PHCC contractors are typically the primary

point of contact for consumers repairing, installing, or

upgrading an HVAC system.

HARDI and PHCC advocate before legislators,

policymakers, and courts to support sensible, marketbased regulations for the HVACR industry. HARDI and

PHCC members supported the passage of the American

Innovation and Manufacturing Act of 2020 (“AIM Act” or

“Act”) and have consistently engaged in the rulemaking

process to facilitate implementation of the Act. HARDI

and PHCC members have relied on the certainty provided

by decades of consistent and predictable regulation to

invest in the transition to safe and sustainable refrigerant

technology.

No counsel for a party authored this brief in whole or in part. No

person other than amici curiae or their counsel made a monetary

contribution to its preparation or submission. The parties were given

timely notice of amici curiae’s intent to file this brief.

1

(1)

2

INTRODUCTION AND SUMMARY OF ARGUMENT

The AIM Act, designed to phase down the use of

hydrofluorocarbons (“HFCs”), represents the latest

iteration of a decades-long regulatory program to

mitigate the environmental impacts of refrigerant use

domestically and internationally, and to speed the

transition to new generations of less environmentally

harmful refrigerants invented by U.S. chemical

innovators.2

Regulation of the U.S. refrigerant industry has

followed a consistent, market-based formula. In

accordance with international treaties to transition to

each new generation of refrigerant technology, Congress

sets a cap on total U.S. production and use of the legacy

class of refrigerants according to a historical baseline and

sets the schedule of phased reductions from that cap.

Congress then delegates to EPA responsibility for

divvying up the declining capped total among U.S.

producers and importers through a system of tradable

allowances apportioned according to those market

participants’ historical baseline market share. The

consistency and predictability of this formula has been

critical to facilitating a gradual shift to each new

generation of refrigerant technology. The domestic

heating, ventilation, air-conditioning, and refrigeration

(“HVACR”) industry has relied on this approach to make

substantial, long-term investments in the manufacturing,

supply chain, and workforce capacity needed to transition

to next-generation refrigerants.

Congress first codified this approach with the

passage of Title VI of the Clean Air Act in 1990 to

implement the Montreal Protocol treaty, which directed

In this brief, HFCs and similar chemical compounds are primarily

referred to as “refrigerants.” Those compounds are also used for

heating, in aerosols, as foaming agents, and as firefighting chemicals.

2

3

the

phaseout of

stratospheric ozone-depleting

refrigerants through a market-based allowance allocation

system. The HVACR industry advocated both in

Congress and before EPA to establish an allowance

allocation system based on historical market share—

precisely what EPA’s implementing regulations under

Title VI have consistently done. This program has been

highly successful in almost entirely phasing out the use of

ozone-depleting refrigerants in the U.S. market.

The AIM Act simply mirrors and builds on the

architecture of Title VI to establish a similar marketbased allowance allocation system for the phasedown of

HFCs to implement the Kigali Amendment to the

Montreal Protocol. When EPA issued implementing

regulations that allocated allowances based on market

share, it built on this well-understood history and on the

text of the AIM Act, which ties phasedowns to the

historical market for HFC production and consumption.

Amici and their members, representing large swaths of

the affected industry, supported a regulatory program

that would be consistent with Title VI in order to provide

certainty and predictability.

There can be no non-delegation problem under these

circumstances, where Congress directed EPA to follow

the same market-based approach it had been following for

years and stakeholders understood that EPA would do

exactly that. Moreover, striking down this regulatory

program after over a half-decade of industry reliance

would throw the U.S. refrigerant industry into chaos. As

of 2024, annual HFC production and consumption in the

U.S. have been phased down to 60% of the historical

market baseline under the AIM Act, and is poised to step

down further to 30% by 2029. The transition to nextgeneration refrigerants is thus well underway. The

industry has invested billions of dollars and reconfigured

manufacturing lines and supply chains to support the

4

market for next-generation refrigerants and the HVACR

products designed to use such refrigerants; removing that

certainty would open the door to a flood of imports by

foreign competitors that make legacy refrigerants and

products, and create market distortions that would

threaten the U.S. refrigerant industry and its customers.

To the extent the Court wishes to revisit the nondelegation doctrine, the AIM Act’s allowance allocation

system is not the appropriate vehicle to do so.

The Court should deny the petition for certiorari.

ARGUMENT

I.

EPA HAS CONSISTENTLY USED HISTORICAL

MARKET SHARE TO IMPLEMENT CAP-ANDTRADE PROGRAMS FOR REFRIGERANTS, AND

CONGRESS MODELED THE AIM ACT AFTER

THOSE PROGRAMS

Congress’s efforts to phase down emissions of HFCs

through the AIM Act built upon a long history of efforts

to regulate and phase down previous generations of

refrigerants—both globally and in the United States,

through treaties and statutes implemented by EPA over

nearly four decades. To achieve each of these phasedowns,

Congress has set and then reduced an overall market cap,

and EPA has allocated refrigerant allowances that could

be expended or traded for production and consumption to

market participants based on those participants’

historical market share.

Refrigerants used in the early 20th century, such as

sulfur dioxide and ammonia, were toxic and flammable. To

address this issue, U.S. chemical manufacturers in the

1930s developed non-toxic, non-flammable synthetic

halogenated hydrocarbons, known as chlorofluorocarbons

(“CFCs”) or more commonly by their trade name

“Freon.” This first generation of synthetic refrigerants

had two key drawbacks when released into the

5

atmosphere. First, CFCs destroy the ozone layer in the

stratosphere that protects the Earth from ultraviolet

radiation. Second, CFCs are very powerful greenhouse

gases, up to thousands of times more powerful than

carbon dioxide.

Through a series of international treaties and

domestic implementing statutes and regulations, CFCs

were

replaced

with

hydrochlorofluorocarbons

(“HCFCs”)—which were less ozone-depleting but still

powerful greenhouse gases—and then HFCs, which are

not ozone-depleting but remain potent greenhouse gases.

HFCs are now in the process of being replaced by fourthgeneration refrigerants, primarily hydrofluoroolefins

(“HFOs”), which are neither ozone-depleting nor potent

greenhouse gases.

These domestic and international efforts to transition

to new generations of refrigerants have all followed the

same basic structure: (1) establishing market-based caps

on production and consumption levels (where

consumption is defined as production plus imports minus

exports, thereby reflecting total domestic use) using a

specific baseline year and (2) mandating a phasedown of

those caps over time to facilitate a transition to the new

alternative class.

The 1987 Montreal Protocol on Substances that

Deplete the Ozone Layer, considered one of the most

successful multilateral environmental treaties ever,

required parties to phase out ozone-depleting substances

by mandating that each country cap production and

consumption at 1986 levels (i.e., the baseline) and reduce

those levels below the baseline over time. See Montreal

Protocol on Substances that Deplete the Ozone Layer

arts. 2A, 2B, Sept. 16, 1987, 1522 U.N.T.S. 3. Following

unanimous consent of the Senate in 1988, the U.S. became

the first major refrigerant-producing country to ratify the

Montreal Protocol.

6

To effectuate the Montreal Protocol, EPA

promulgated regulations in 1988 that established the first

allowance-based system of controls on production and

consumption of ozone-depleting substances in the United

States. See 53 Fed. Reg. 30,566 (Aug. 12, 1988). The 1988

rules established allowances that reflected the total

market for production and consumption of ozonedepleting substances in 1986, and then allocated

allowances to each producer and importer of ozonedepleting substances according to its historical market

share. Id. at 30,586 (“As EPA defined and proposed it, the

allocated quota system simply grandfathers past market

shares”). The rule further permitted trading of those

allowances among industry participants, which could

affect market shares going forward. Id.

The U.S. refrigerant industry—which consisted of a

handful of major refrigerant producers, importers and

exporters of bulk refrigerants, and a larger, diffuse

number of refrigeration and other related equipment

manufacturers spread across different sectors—was

heavily engaged in both the negotiation of the Montreal

Protocol and EPA’s implementing regulations. See

Robert W. Hahn, The Political Economy of Instrument

Choice: An Examination of the U.S. Role in

Implementing the Montreal Protocol, 83 Nw. U. L. Rev.

592, 598 (1989). The refrigerant industry strongly

supported the approach of allocating allowances based on

historical market share. Id. at 607 (citing Comments of

Alliance for Responsible CFC Policy on EPA’s 1988

Proposed Rule on Protection of Stratospheric Ozone).

Congress codified this program in 1990 through

amendments to the Clean Air Act added in a new Title VI.

Pub. L. No. 101-549, §§ 601–618, 104 Stat. 2399, 2648–2672

(1990) (codified at 42 U.S.C. §§ 7671–7671q). Consistent

with the Montreal Protocol, Title VI established

production and consumption baselines, first of CFCs and

7

then HCFCs, in the U.S. market in a designated year, and

mandated a step-down relative to those baselines over

time. See 42 U.S.C. §§ 7671c, 7671d. Title VI also directed

EPA to promulgate rules for the allocation and trading of

allowances for the production and consumption of ozonedepleting substances in accordance with those baseline

levels and the phase-out schedule. Id. § 7671f. The 1990

Amendments passed with overwhelming bipartisan

support and were signed into law by President George

H.W. Bush.3

In each of EPA’s implementing regulations over the

subsequent years, EPA continued to allocate allowances

based on each market participant’s historical market

share. See, e.g., 57 Fed. Reg. 33,754, 33,761 (July 30, 1992)

(“EPA proposed baseline allowances for the Class I

substances based on each company’s production and

consumption of each of the substances in the baseline

year.”); 60 Fed. Reg. 24,970 (May 10, 1995) (“allowances

are assigned to companies according to production and

importation during base years”); 74 Fed. Reg. 66,412,

66,415 (Dec. 15, 2009) (“The 2003 allocation rule

apportioned production and consumption baselines to

each company in amounts equal to the amounts in the

company’s highest ‘production year’ or ‘consumption

year,’ as described above”). These allocations have

consistently gone to the same entities throughout this

transition, as the producers and importers of each new

generation of refrigerants are in many cases the same

entities that produced the legacy products.

Title VI and its implementing regulations have been

highly successful in phasing out ozone-depleting

substances. Between 1990 and 2010, CFC production in

U.S. EPA, The Clean Air Act—Highlights of the 1990

Amendments (1990), https://www.epa.gov/sites/default/files/201511/documents/the_clean_air_act__highlights_of_the_1990_amendments.pdf.

3

8

the United States fell to zero, and HCFC consumption fell

by 75 percent. See Mark Roberts, Finishing the Job: The

Montreal Protocol Moves to Phase Out HFCs, 32 Nat.

Res. & Env’t 7, 8 (2018). HCFCs are expected to be

phased out entirely by 2030.4

As ozone-depleting refrigerants were successfully

phased out through the transition to HFCs, the United

States and the international community shifted to

addressing the climate impacts of the rapidly increasing

global use of HFCs, which are powerful greenhouse

gases. See 86 Fed. Reg. 55,116, 55,123 (Oct. 5, 2021). The

Kigali Amendment to the Montreal Protocol, signed in

2016, established a global phasedown of HFCs that

effectively mirrored the structure of the CFC and HCFC

phaseouts: the Kigali Amendment committed parties to a

declining cap on HFC production and consumption over

time in signatory countries relative to a historical baseline

level. The United States, with the support of the U.S.

refrigerant industry that had developed the successor

class of HFO refrigerants, championed the move to phase

down HFCs through the Kigali Amendment. See Roberts,

supra at 8.

Although the United States did not ratify the Kigali

Amendment until 2022, the U.S. refrigerant industry

continued to support domestic implementing policies. The

AIM Act passed with broad bipartisan support and was

signed into law by President Trump in 2020. See Pub. L.

No. 116-260, § 103, 134 Stat. 1182, 2255 (2020) (codified at

42 U.S.C. § 7675). Consistent with the Kigali Amendment,

the AIM Act sets a baseline cap on HFC production and

consumption at total U.S. market levels in 2011-2013 and

See Cong. Rsch. Serv., RL30853, Clean Air Act: A Summary of the

Act

and

Its

Major

Requirements

17

(2022),

https://crsreports.congress.gov/product/pdf/RL/RL30853.

4

9

phases that down by 85 percent by 2036. See 42 U.S.C. §

7675(e).

In passing the AIM Act, Congress drew on the

benefit of thirty years of experience with its predecessor

cap-and-trade programs for CFCs and HCFCs under

Title VI of the Clean Air Act. Indeed, the AIM Act

mirrors the architecture of Title VI in several ways.

Among other things, both statutes establish: (1) a defined

list of regulated substances in the relevant class of

refrigerants, with each substance assigned potency

values, compare 42 U.S.C. § 7671a with id. § 7675(c); (2) a

market-based cap fixed at historical production and

consumption levels in a designated year (i.e., the baseline)

and a stepwise phasedown schedule expressed as

percentages of that baseline, compare 42 U.S.C. §§

7671(2), 7671c-7671d with id. § 7675(e); and (3) an

allowance allocation and trading system that limits U.S.

production and consumption in the market to the

statutory percentages of the baseline. Compare 42 U.S.C.

§ 7671f with id. § 7675(e)(2)-(3).

The legislative history confirms that Congress

explicitly designed the AIM Act to “build[] upon

[Congress’s] previous experience in phasing out CFCs

and their replacement chemicals, HCFCs,” finding that

Title VI “proved an able vehicle to foster an orderly,

market-based phasedown of HFCs’ predecessors.” See

Promoting American Innovation and Jobs: Legislation

to Phase Down Hydrofluorocarbons: Hearing on H.R.

5544 Before the H. 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.); see

also Oversight of the Environmental Protection Agency:

Hearing on S. 2754 Before the S. Subcomm. on Env't &

Pub. Works, 116th Cong. 2, 39 (2020) (statement of Sen.

10

Mike Braun) (“Senate Bill 2754 provides for a 15-year

phasedown of hydrofluorocarbons (HFC), and is

generally modeled on EPA programs that, over the past

30 years, guided transitions out of earlier generations of

refrigerants, such as chlorofluorocarbons (CFC) and

hydrochlorofluorocarbons (HCFC)”).

EPA officials also testified to Congress as the AIM

Act was being considered that “most of the main

components [of the AIM Act], particularly the phasedown,” were “very similar” to Title VI “and how [EPA]

implement[s] that in the domestic program.” See Hearing

on H.R. 5544 Before the H. Subcomm. on Env’t & Climate

Change of the H. Comm. on Energy & Com., 116th Cong.

at 22-23 (statement of Cynthia Newberg, Office of

Stratospheric Ozone, U.S. EPA). In testimony regarding

the Senate version of the AIM Act, EPA similarly stated

that if it were to pass, “EPA would likely leverage existing

Clean Air Act Title VI programs to implement [the AIM

Act] … EPA would develop and implement an appropriate

regulatory program that builds on lessons learned during

the phaseout of chlorofluorocarbons (CFCs) and

hydrochlorofluorocarbons (HCFCs).” Hearing on S. 2754

Before the S. Subcomm. on Env't & Pub. Works, 116th

Cong. at 39 (statement of Andrew Wheeler,

Administrator, U.S. EPA).

In 2021, EPA promulgated regulations implementing

the allowance allocation and trading program established

by the AIM Act. 86 Fed. Reg. 55,116 (Oct. 5, 2021). Just

as it did with respect to CFC and HCFC allowances, EPA

allocated the general pool of HFC allowances in

accordance with market participants’ historical market

share. Compare 86 Fed. Reg. at 55,118 (“Company

production and consumption allowance allocations are

based on the three highest years (not necessarily

consecutive) of production or consumption between 2011

and 2019”) with 57 Fed. Reg. at 33,761 (“EPA proposed

11

baseline allowances for the Class I substances based on

each company’s production and consumption of each of

the substances in the baseline year.”).

II. THE AIM ACT’S UNAMBIGUOUS INTENT TO

ESTABLISH A MARKET-BASED ALLOWANCE

ALLOCATION SYSTEM MAKES THIS CASE A

POOR VEHICLE FOR RECONSIDERATION OF

THE NON-DELEGATION DOCTRINE

This long history on which Congress drew in enacting

the AIM Act demonstrates two things: EPA had an

intelligible principle to guide it in implementing the AIM

Act’s cap-and-trade program, and this would be a poor

case in which to reconsider the non-delegation doctrine.

Petitioner narrowly reads discrete language in the

AIM Act out of context to contend that the statute

unconstitutionally delegates legislative authority to EPA.

Specifically, Petitioner asserts that subsection (e)(3),

which directs EPA to effectuate the use and phasedown

of HFC allowances by establishing an “allowance

allocation and trading program in accordance with this

section” provides EPA with too little direction on how to

allocate those allowances. But the phrase “this section”

refers to the entire AIM Act, codified at section 7675 of

Title 42. Petitioner’s reading ignores the broader text and

structure of the Act and the statutory history showing

that Congress plainly intended for EPA to institute a

market-based program akin to the Title VI phaseout of

ozone-depleting substances.

The text, structure, purpose and legislative history of

the AIM Act show that Congress explicitly modeled the

statute on Title VI of the Clean Air Act. In doing so,

Congress’s purpose was to institute a “market-based”

approach to the HFC phasedown in the same manner as

had been so effective for prior classes of refrigerants. See,

e.g., Hearing on H.R. 5544 Before the Subcomm. on Env't

& Climate Change, 116th Cong. at 7. This market-based

12

approach is explicitly embedded in the text and structure

of the HFC allowance and phasedown system. The HFC

production and consumption baselines are entirely

market-based—they are calculated using historical

production and consumption levels in the U.S. refrigerant

market from 2011 to 2013. 42 U.S.C. § 7675(e)(1). The

allocable pool of allowances that EPA sets for each year is

calculated as a declining percentage of that historical

market baseline. Id. § 7675(e)(2)(D). And no one may

produce or consume HFCs in the U.S. market without

having a corresponding amount of allowances to expend

for that production or consumption. Id. § 7675(e)(2)(A). In

other words, each production or consumption allowance

reflects a share of the U.S. refrigerant market (for HFCs)

that market participants can expend to produce or import

HFCs (or trade to others to do the same). Thus when

Congress set total allowances based on the total market

(measured by total production and consumption of all

HFCs by all companies in the United States) and directed

EPA to develop rules for allocating those allowances “in

accordance with this section”—meaning the AIM Act as a

whole—it follows that Congress intended for those

allocations to be tied to historical market shares. Id. §

7675(e)(3).

The historical context and purpose of the Act

unambiguously confirm not only Congress’s intended

approach, but also that no further direction was needed in

the statute to clarify Congress’s intention for EPA.

Congress does not legislate in a vacuum, but rather “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). As

explained above, and as the D.C. Circuit found, Congress

deliberately and explicitly modeled the AIM Act’s HFC

allowance allocation and phasedown mechanisms on the

nearly identical program for prior refrigerants

established under Title VI of the CAA, which Congress

13

knew EPA had implemented through a market-based

allocation system. See IGas Holdings, Inc. v. Env't Prot.

Agency, 146 F.4th 1126, 1139 (D.C. Cir. 2025).

Any doubt as to that intent is dispelled by the many

structural and textual parallels between the two statutes.

Under Title VI’s allowance allocation and trading

program, EPA calculated the baseline cap on allowances

using the industry’s total historical production and

consumption levels from the designated baseline years,

and then allocated allowances based on each company’s

individual historical market share. Congress drafted the

AIM Act’s allowance allocation provisions with the benefit

of thirty years of experience with the Title VI program

and its allocation methodology, as well as years of

experience with EPA’s initial Montreal Protocol

regulations before that.

That allowances would be allocated based on market

share also reflects the industry’s understanding of the

AIM Act and the realities of the refrigerant sector.

Participants in the refrigerant industry have long

supported an allowance allocation system based on

market share, starting with the early regulations

implementing the phaseout of ozone-depleting

substances. See Hahn, supra, at 607. Indeed, many of the

entities investing in next-generation HFOs are the same

entities that historically produced and imported HFCs.5

Given the clear connection to the Title VI regime and its

successful allowance allocation and trading mechanism,

The two companies that primarily invented each subsequent

generation of refrigerants were DuPont (later spun off as Chemours)

and Honeywell (later spun off as Solstice Advanced Materials). See

Harvard Business School Digital Initiative, DuPont and Honeywell:

How Two Competitors Came Together to Fight Climate Change,

https://d3.harvard.edu/platform-rctom/submission/dupont-andhoneywell-how-two-competitors-came-together-to-fight-climatechange/ (Nov. 4, 2016).

5

14

largely the same industry participants understood the

AIM Act to call for the same market-based approach to

phasing down the HFC generation of refrigerants. See,

e.g., Comments of The Chemours Company FC, LLC,

Phasedown of Hydrofluorocarbons: Establishing the

Allowance Allocation and Trading Program Under the

AIM Act, No. EPA-HQ-OAR-2021-0044 (Feb. 26, 2021),

https://www.regulations.gov/comment/EPA-HQ-OAR2021-0044-0025 (“Allocation of allowances to historic

producers and importers is [] supported by the 30-year

history of EPA’s stratospheric ozone program which has

always allocated allowances in this manner … Congress

openly and deliberately intended a similar outcome in

enacting the AIM Act”); see also Hearing on H.R. 5544

Before the H. Subcomm. on Env’t & Climate Change,

116th Cong. at 60 (statement of Gary Bedard on behalf of

the Alliance for Responsible Atmospheric Policy) (“The

AIM Leadership Act relies on three key components

[including] a market-based allocation system that

gradually phases down production”); id. at 49 (statement

of John Galyen, Chairman of the Air-Conditioning,

Heating, and Refrigeration Institute) (“The legislation is

based substantially on existing EPA programs that

allowed for orderly transitions from earlier generations of

refrigerants in ways that protected the environment while

supporting

American-based

companies'

market

objectives”).

Stability and predictability in the market and the

regulatory regime are critical to the HVACR industry

given the significant investments and long lead-times

required to develop manufacturing and distribution

capabilities for new refrigerant compounds and

equipment designed to use those new refrigerants.

Congress was well aware of these industry dynamics

when developing the allowance system under the AIM

Act. See, e.g., Hearing on H.R. 5544 Before the H.

15

Subcomm. on Env’t & Climate Change, 116th Cong. at 39

(statement of John Galyen) (“With an orderly transition,

the American HVACR industry has certainty, stability,

and predictability with regard to product lines, supply

chains, distribution networks, and legal and regulatory

requirements. This will enable businesses to invest and

innovate”).

To the extent this Court is interested in exploring or

revitalizing the non-delegation doctrine, the AIM Act is

not a good vehicle for doing so. Even if the language of the

allowance allocation provision leaves EPA some

discretion, the long and consistent history of regulation of

the refrigerant industry culminating in the AIM Act, and

Congress’s direction to EPA in subsection (e)(3) to

allocate consistent with the AIM Act as a whole, make

clear that EPA had at least a sufficiently “intelligible

principle” regarding the method of allocation. Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). Congress

is entitled to leave some discretion to the agency within

defined policy parameters and principles, especially when

dealing with a highly technical industry such as this one.

See Am. Power & Light Co. v. SEC, 329 U.S. 90, 105

(1946); see also FCC v. Consumers' Rsch., 606 U.S. 656,

673 (2025) (finding that the narrower and more technical

the issue, the less guidance is needed to comply with nondelegation principles). And a unique statute like this one

in which Congress and EPA drew on decades of similar

regulatory efforts presents issues that are not likely to

arise in the mine-run case involving delegation.

Resolution of this case is accordingly not a good vehicle to

clarify the doctrine.

16

III. FINDING

THE

AIM

ACT’S

ALLOWANCE

ALLOCATION PROVISIONS UNCONSTITUTIONAL

WOULD HAVE DEVASTATING CONSEQUENCES

FOR THE DOMESTIC REFRIGERANT INDUSTRY

Granting certiorari would be especially unwise

because any reversal would have calamitous effects on the

American refrigerant industry. If the Court were to

invalidate the allowance allocation and trading provisions

of the AIM Act, that would likely entail striking down the

production and consumption phasedown in its entirety.

The D.C. Circuit concluded that subsection (e)(3)—which

directs EPA to develop regulations for allocating HFC

allowances—cannot be severed from subsection (e)(2),

which establishes the overall allowance system and

phasedown structure. See IGas Holdings, 146 F.4th at

1136. If the allocation provision is unconstitutional, the

HFC allowance and phasedown mechanisms are likely to

be rendered inoperative—meaning that there would be no

quantity-based restrictions on production or importation

of HFCs. This would disrupt the HVACR market that is

in the midst of transitioning out of HFCs, create confusion

among contractors and consumers, and penalize firms

that have acted in good faith to meet regulatory

expectations. HFC allowances have already been reduced

to 60% of baseline in 2024, and will drop further to 30% of

the baseline in 2029.

Domestic manufacturers have been working to

comply with the statutory phasedown schedule by

investing in the transition to lower-global warming

potential (“GWP”) refrigerants. Not all refrigerants are

the same: chemical production lines are designed for

specific refrigerant types. Manufacturers of bulk

refrigerants have shifted to reduce production of HFCs

and instead invested to convert their facilities (and build

new ones) to produce low-GWP HFOs. Because HFOs

(and HFO blends) are mildly flammable, refrigerant

17

manufacturers have also needed to invest in safety

equipment for their production facilities. Developing

these production lines and facilities has been a significant,

multi-year investment made in reliance on the phasedown

mandate and the anticipated demand for next-generation

refrigerants.

This is equally true for HVACR equipment

manufacturers; manufacturing lines are unique to specific

types of products and refrigerants. Accommodating new

refrigerant compounds in refrigeration equipment

requires, among other things, different components,

devices to mitigate flammability risks, and changes to

ensure that products adhere to new safety standards (e.g.,

building codes) that apply to installation of the

refrigeration equipment. Accordingly, equipment

manufacturers have also made significant, multi-year

capital and engineering investments in retooling

production lines, reengineering refrigeration products,

validating product safety, and developing supply chains to

produce and distribute those products that use lowerGWP refrigerants.6 HVACR manufacturing capital

expenditures, for example, rose from $760.2 million in

2017 to $1.2545 billion in 2021, and exceeded $1 billion in

each of 2019, 2020, and 2021.7 These investments spurred

a significant expansion of the domestic manufacturing

See, e.g., Comments of AHRI, Phasedown of Hydrofluorocarbons:

Establishing the Allowance Allocation and Trading Program Under

the AIM Act, No. EPA-HQ-OAR-2021-0044 (Jul. 7, 2021),

https://www.regulations.gov/comment/EPA-HQ-OAR-2021-00440170 (explaining that manufacturing of new HVACR equipment

requires investment multiple years in advance of anticipated

demand).

7

See An Economic Analysis of the U.S. HVACR Equipment and

Water Heater Manufacturing Industry: A Report Prepared for the

Air-Conditioning, Heating, and Refrigeration Institute 11–12 (July

2023),

https://www.ahrinet.org/economic-analysis-us-hvacrequipment-and-water-heater-manufacturing-industry.

6

18

base: the number of manufacturing facilities in the

refrigeration industry has grown substantially, increasing

for ten straight years starting in 2015; and HVACR

manufacturing employment has expanded each year since

2016.8 The HVACR industry overall accounted for $144.4

billion in economic output in 2021 alone.9

Likewise, distributors have invested in warehousing

processes designed to meet new fire code requirements

for storage of flammable refrigerants. Distributors have

established relationships with refrigerant suppliers that

are premised on a limited supply of legacy refrigerants

and the transition to new refrigerants. An influx of

unrestricted imports would undercut these U.S.

distributors’ market share. HVACR contractors have

invested in retraining their workforce and acquiring new

tools and equipment to manage lower-GWP products.

Reversing course on the transition now would negate the

purpose of those capital investments, which have already

been factored into the cost of doing business.

Consumers of air-conditioning, refrigeration, and

related equipment—including for industrial, commercial,

and residential applications and in motor vehicles—have

been transitioning to install new equipment and to service

that equipment with the new refrigerants. Companies

that reclaim refrigerants from existing equipment for

recycling and reuse have also invested in HFC

reclamation processes and equipment. Given the

significant investments that the entire industry across the

refrigerant supply chain has made in reliance on the

statutory phasedown schedule, even granting certiorari

HVACR Manufacturing: Economic Trends and Insights: A

Report Prepared for the Alliance for Responsible Atmospheric

Policy and AHRI 4, 9 (Summer 2025).

9

Economic Analysis of the U.S. HVACR Equipment and Water

Heater Manufacturing Industry, supra, at 2.

8

19

now—in the middle of this transition—would inject

significant uncertainty into the market.

These investments would be wasted in significant

part if the AIM Act is invalidated. The HVACR industry

requires long lead-times to reconfigure product lines to

accommodate demand for new refrigerant compounds

and refrigeration equipment. And once a product line is

retooled to accommodate fourth-generation HFO

refrigerants, it cannot simply be converted back to

accommodate third-generation HFC refrigerants without

significant expense. Unrestricted HFC production and

consumption would cause an influx of imports of higherglobal warming potential legacy HFC refrigerants and

equipment containing those legacy HFCs into the market.

It would also create significant unpredictability in

demand for specific refrigerant compounds to which

manufacturers would not be able to adjust quickly and

easily.

A reversal on the HFC phasedown program would

also confer a competitive advantage to foreign-based

manufacturers of bulk HFCs and equipment who did not

invest in the phasedown. These imported products would

have a price advantage in competing against equipment

that the U.S. industry has already reengineered to use

low-GWP refrigerant substitutes at significant cost in

order to comply with the phasedown. The resulting

disruption would force American firms to choose between

duplicative product lines—maintaining lower-GWP

alternatives while attempting to compete with the influx

of high-GWP options—or ceding market share to imports.

Such a disjointed market could ultimately lead to

refrigerant shortages for supermarkets, other

commercial facilities, and residential HVAC equipment,

as refrigerant suppliers and refrigeration product

manufacturers will no longer be able to plan supply chains

around predictable demand. See, e.g., Hearing on H.R.

20

5544 Before the H. Subcomm. on Env’t & Climate Change,

116th Cong. at 39 (statement of John Galyen).

Moreover, unregulated production and consumption

of HFCs would likely result in violations of the United

States’ treaty obligations under the Kigali Amendment

and the Montreal Protocol. Primarily, unconstrained

production and consumption of HFCs in the United

States would result in an exceedance of the cap and

phasedown schedule set out in Articles 2J(1) and 2J(3) of

the Kigali Amendment to the Montreal Protocol. Under

Article 4 of the Montreal Protocol, exceedances by the

United States could result in the imposition of trade

control measures prohibiting trade in HFCs with the

United States by other parties to mitigate any further

non-compliance by the United States. Cutting off the

importation of HFCs would further exacerbate the

economic harm to the HVACR industry and to end users

of refrigeration equipment that rely on the global supply

chain.

At bottom, EPA issued allowance regulations using

the same method that it has used in similar programs for

decades and that Congress and everyone in the industry

understood it would use, and industry has now spent

billions of dollars implementing this transition. The Court

should not disrupt these reliance interests.

CONCLUSION

The Court should deny the petition for certiorari.

21

Respectfully submitted.

JONATHAN S. MARTEL

ELISABETH S. THEODORE

Counsel of Record

ADAM MASUROVSKY

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

elisabeth.theodore@arnoldporter.com

MAY 2026