Reply 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,

v.

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

________________

REPLY BRIEF FOR PETITIONER

________________

ZHONETTE M. BROWN

KAITLYN D. SCHIRALDI

MARK S. CHENOWETH

NEW CIVIL LIBERTIES

ALLIANCE

4250 N. Fairfax

Drive, Suite 300

Arlington, VA 22203

PAUL D. CLEMENT

ERIN E. MURPHY

Counsel of Record

MATTHEW D. ROWEN

ILAN J. POSNER

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

erin.murphy@clementmurphy.com

Counsel for Petitioner

(additional counsel listed on inside cover)

June 2, 2026

ERIN MORROW HAWLEY

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy.

Lansdowne, VA 20176

DAVID M. WILLIAMSON

WILLIAMSON LAW

+ POLICY, PLLC

1001 Connecticut Ave. NW

Suite 612

Washington, DC 20036

TABLE OF CONTENTS

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

REPLY BRIEF ............................................................ 1

I.

The AIM Act Stretches Congress’ Power To

Delegate Far Beyond Its Breaking Point ........... 3

II. This Case Provides An Excellent Vehicle To

Resolve An Exceedingly Important Question... 11

CONCLUSION ......................................................... 14

ii

TABLE OF AUTHORITIES

Cases

FCC v. Consumers’ Rsch.,

606 U.S. 656 (2025) .............................................. 3, 7

Frost v. Corp. Comm’n of Okla.,

278 U.S. 515 (1929) .................................................. 6

Gundy v. United States,

588 U.S. 128 (2019) ........................................ 4, 6, 11

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ................................................ 10

Mistretta v. United States,

488 U.S. 361 (1989) .................................................. 3

Pheasant v. United States,

No. 25-6911 (U.S. Feb. 20, 2025) ........................... 12

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

590 U.S. 212 (2020) .................................................. 8

Santander Consumer USA Inc.,

582 U.S. 79 (2017) .................................................... 8

Wayman v. Southard,

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

West Virginia v. EPA,

597 U.S. 697 (2022) ............................................ 6, 11

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) .............................................. 3, 7

Statutes

42 U.S.C §7671d(b) ..................................................... 8

42 U.S.C. §7675(a) ...................................................... 9

42 U.S.C. §7675(e)(3) .............................................. 3, 9

42 U.S.C. §7675(e)(4) .................................................. 6

iii

42 U.S.C. §7675(k)(1)................................................ 11

Regulations

86 Fed. Reg. 27,150 (May 19, 2021) ........................... 5

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

87 Fed. Reg. 61,314 (Oct. 11, 2022) ........................... 6

Other Authority

168 Cong. Rec. S4898 (daily ed. Sep. 21,

2022) ....................................................................... 12

REPLY BRIEF

Two centuries ago, this Court held that Congress

may not “delegate … powers which are strictly and

exclusively legislative.” Wayman v. Southard, 23 U.S.

(10 Wheat.) 1, 42 (1825). Over the past 100 years,

however, this Court has allowed that fundamental

principle to wither, settling on an increasingly lax and

impotent test for identifying unconstitutional

delegations that has produced a null set for 90 years

running. This case provides an excellent vehicle to

reinvigorate that test or refashion the doctrine anew,

as the American Innovation and Manufacturing Act

(“AIM Act”) is the rare statute that provides literally

no direction cabining an agency’s discretion to remake

a multibillion-dollar industry. The Act authorizes the

Environmental Protection Agency (“EPA”) to freely

choose how many hydrofluorocarbon (“HFC”)

allowances each private company in the refrigerant

industry should receive, while providing zero guidance

on how EPA should allocate those business-critical

allowances. Choice’s petition asks a simple question:

May Congress empower an agency to reorder a

multibillion-dollar market while providing no guiding

principles on how to do so? If the answer to that

question under this Court’s current test is not “no,”

then it is time for a new test.

Despite insisting that EPA’s unbridled discretion

to allocate allowances is not as boundless as the Act’s

text plainly indicates, respondents notably cannot

even agree on what intelligible principle supposedly

constrains the agency’s discretion. As it did below, the

government claims that it is enough that Congress

chose to phase down HFCs through a cap-and-trade

2

framework, even though the Act undisputedly does not

guide EPA on how to allocate allowances. That position

was soundly rejected by the D.C. Circuit, however, and

Intervenor-Respondents1 have abandoned it, instead

embracing the D.C. Circuit’s strained effort to write

into the Act an intelligible principle that Congress

omitted, and one EPA itself does not see. But the D.C.

Circuit’s decision to pick up the legislative pen and

transplant a principle from an entirely different

statutory scheme just adds an Article III violation to

the glaring Article I problem. It also powerfully

illustrates the lengths to which courts go to avoid

calling out Congress for failing to do its job, and the

consequent need for this Court’s intervention to revive

or revise a critical doctrine.

Respondents offer a smattering of arguments

urging this Court to deny review—from questioning

Choice’s motives to suggesting that the AIM Act

somehow implicates Article II’s treaty power. None of

those red herrings should distract from what this

petition offers: a chance for this Court to finally make

clear that Article I’s Vesting Clause provides at least

some judicially enforceable constraint on Congress’

ability to abdicate its constitutional duty to decide

hard legislative questions itself and be accountable to

the People for those choices.

1 This reply refers to Intervenor-Respondents’ brief as

“Int.Resp.Br.” Two trade associations submitted an amicus brief

supporting respondents, which this reply refers to as

“HARDI.Amici.Br.”

3

I.

The AIM Act Stretches Congress’ Power

To Delegate Far Beyond Its Breaking Point.

1. While Congress can undoubtedly grant

executive agencies some discretion to implement and

enforce federal laws, under this Court’s precedents it

must identify at least some “principle to which the …

body authorized … is directed to conform.” Mistretta

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

principle must “provide[] sufficient standards to

enable both ‘the courts and the public [to] ascertain

whether the agency’ has followed the law.” FCC v.

Consumers’ Rsch., 606 U.S. 656, 673 (2025). This, of

course, is hardly a demanding standard. But nor is it

meant to be an empty gesture. At a minimum, it

requires that Congress may not “fail[] to articulate

any policy or standard that would serve to confine the

discretion of the authorities to whom Congress had

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

The AIM Act cannot clear even that low bar. The

Act requires EPA to phase down HFC production and

directs it to establish a cap-and-trade program and

allocate HFC allowances to private companies. But

Congress then granted EPA unfettered discretion on

how to allocate the vast majority of those allowances,

and “provided literally no guidance for the exercise of

[that] discretion.” Whitman v. Am. Trucking Ass’ns,

531 U.S. 457, 474 (2001). The Act simply commands

EPA to “phas[e] down the production of [HFCs] in the

United States through an allowance allocation and

trading program in accordance with this section.” 42

U.S.C. §7675(e)(3)(A). That is it. There are no

standards, policies, or boundaries confining EPA’s

discretion—not even a principle like act in the “public

4

interest,” or do what is “fair and equitable.” See

Gundy v. United States, 588 U.S. 128, 146 (2019). The

Act empowers EPA to select which companies may

participate in the refrigerant industry and which may

not, with devastating consequences for disqualified

companies. Worse, EPA can make those selections

based entirely on whatever policy preferences it

prefers—whether that be preserving orderly markets,

advancing social justice, furthering environmental

priorities, or bare revenue raising. Such unguided

decisionmaking cannot survive the intelligibleprinciple test—nor any test faithfully enforcing Article

I’s Vesting Clause.

2. Respondents resist that conclusion, insisting

that Congress did supply the requisite guidance.

EPA.Br.10; Int.Resp.Br.19. But they cannot even

agree on what intelligible principle Congress

supposedly supplied.

While the government purports to embrace the

D.C. Circuit’s opinion, it does so only by

misrepresenting what the court held. The D.C. Circuit

interpreted the Act to require EPA to allocate

allowances based on historical market share, not

merely to “take account” of the “pre-enactment

marketplace.” EPA.Br.12. The government has never

endorsed that reading, and it does not do so now. To

the contrary, the government agrees that Congress

gave EPA near-complete discretion “in establishing

the method of allocation within the cap-and-trade

program.” EPA.Br.9. As it must, since EPA has

openly touted its “considerable” and “significant

discretion in … establish[ing] an allowance

allocation,” and it has proposed allocation methods as

5

varied as charging “a fee for every allowance

provided”; prioritizing allowances for new market

entry from “minority- and woman owned small

businesses”; or auctioning off allowances to be retired.

See 86 Fed. Reg. 27,150, 27,177-78, 27,203 (May 19,

2021). The government thus concedes that, under the

AIM Act, EPA can allocate allowances however it

wants. EPA could allocate them only to existing

companies or only to new entrants; only to companies

that comply with its policy preferences on ancillary

issues like racism or sexism, or only to companies that

will pay EPA the most for them.

The government does not embrace the D.C.

Circuit’s flawed effort to read a historical-marketshare principle into the Act. Instead, it contends that

the Act satisfies the intelligible-principle test because

Congress provided guidance on issues other than how

to allocate allowances—i.e., identifying the relevant

HFC compounds, setting an overall baseline and

reduction schedule, and directing EPA to use a capand-trade framework. EPA.Br.8-10. The D.C. Circuit

rejected this argument—and Intervenor-Respondents

abandoned it—for good reason: That Congress decided

generally to phase down HFCs does not excuse its

failure to provide any guidance on how HFC

allowances should be allocated. That is no “narrow

technical issue.”

Contra EPA.Br.13.

Allocating

allowances is the single most important policy

question governing the phasedown regime.

For many individual businesses, like Choice, their

survival depends on retaining their hard-earned share

of the HFC market. If they cannot continue producing

or consuming enough HFCs, that imperils their

6

“general right to engage in a lawful business.” Frost

v. Corp. Comm’n of Okla., 278 U.S. 515, 534 (1929).

The allocation of HFC allowances also has broader

implications for the entire multibillion-dollar

refrigerants industry, whose products are used in

homes, commercial buildings, industrial operations,

cars, and more. By giving EPA boundless discretion

to “restructure” the refrigerants industry, West

Virginia v. EPA, 597 U.S. 697, 724 (2022), the AIM Act

unconstitutionally delegates to EPA the power to

determine the rights—and even continued existence—

of private businesses.

Respondents ask this Court to excuse EPA’s

unbounded allocation authority because the AIM Act

directs that, for the first five years, EPA “may”

allocate allowances for certain “essential uses” under

certain conditions, 42 U.S.C. §7675(e)(4)(B)(i), and

must allocate some allowances for the continued

production of a short list of specialized products, id.

§7675(e)(4)(B)(iv). EPA.Br.11; Int.Resp.Br.10. But

that marginal guidance—which, as to the first part, is

not even binding—covers only a sliver of the HFC

market. According to EPA’s own data, in 2023, those

two categories combined constituted just 2% of total

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

(Oct. 11, 2022). While respondents quibble with the

exact percentages, see Int.Resp.Br.9, they do not deny

that the Act fails to provide any meaningful guidance

on how EPA should allocate the vast majority of

allowances among the many companies whose uses or

products do not fit into any enumerated category.

That crucial task remains within EPA’s unguided

discretion. Gundy, 588 U.S. at 136 (the nondelegation

7

inquiry is specific to each “task [a statute] delegates

and what instructions it provides”).

In sum, no sensible nondelegation doctrine would

permit Congress to abdicate its constitutional duty

and leave decisions over who may operate in a critical

industry to the policy preferences of an agency that is

“not elected by the people and [is] not accountable to

the people for [its] policy decisions.” Consumers’

Rsch., 606 U.S. at 708 (Kavanaugh, J., concurring).

That the government apparently thinks this Court’s

existing test is malleable enough to permit such a law

underscores the need for this Court to step in and

course-correct.

3. The D.C. Circuit, to its credit, did not accept the

government’s invitation to endorse such complete

congressional abdication. Apparently, IntervenorRespondents have declined as well, as they have

abandoned that theory before this Court, in favor of

embracing the D.C. Circuit’s attempt to cure the AIM

Act’s nondelegation problem by supplying the

necessary guidance itself. But far from solving the

nondelegation problem, that just added an Article III

violation to the mix. After all, an Article III court can

no more devise an intelligible principle that Congress

omitted than can an Article II agency. See Whitman,

531 U.S. at 473.

Implicitly recognizing as much, IntervenorRespondents double-down on the D.C. Circuit’s claim

that the AIM Act itself imposes “ascertainable and

meaningful guideposts” on EPA’s allocation authority

by requiring the agency to allocate allowances to

market participants according to their “historical

market share.” See Pet.App.16. But as the petition

8

explained, no historical-market-share requirement

appears anywhere in the AIM Act. Pet.22-23. The

D.C. Circuit instead plucked that requirement from

Title VI of the Clean Air Act—an entirely different

statutory scheme—and grafted it onto the AIM Act, in

a transparent attempt to avoid the glaring

nondelegation issue.

Resorting to avowed

purposivism and snippets of legislative history, the

court posited that Congress probably meant to model

the AIM Act’s allowance allocation scheme on Title VI

and its historical-market-share requirement; it just

neglected to actually say so.

That (il)logic suffers from myriad problems—not

the least of which being that, while Title VI and the

AIM Act share some commonality, they differ in

several fundamental ways. Most important, Title VI’s

statutory text does expressly point to a historicalmarket-share requirement. See 42 U.S.C. §7671d(b)

(directing EPA to allocate allowances based on the

“quantity of [the] substance produced by [the] person

during the baseline year”). The AIM Act, by contrast,

lacks any comparable language. That deliberate

difference in statutory language should be dispositive.

After all, courts cannot “read into statutes words that

aren’t there,” Romag Fasteners, Inc. v. Fossil, Inc., 590

U.S. 212, 215 (2020)—especially when those words

appear in similar statutes, Henson v. Santander

Consumer USA Inc., 582 U.S. 79, 85-86 (2017). And

the differences here are clear as day.

Indeed,

Intervenor-Respondents themselves recognized below

that the allowance allocation scheme in Title VI and

the AIM Act contain “[a] significant difference,” and

that the AIM Act is “stand-alone legislation, not [] an

9

amendment to the Clean Air Act.” Int.Br.7-8, No.231261, (D.C. Cir. May 31, 2024).

Ignoring their prior admission, respondents try to

manufacture a textual hook for the D.C. Circuit’s

atextual theory by noting that the AIM Act directs

EPA to allocate allowances “in accordance with this

section.” 42 U.S.C. §7675(e)(3)(A). Int.Resp.Br.7-8;

HARDI.Amici.Br.11. That gets them nowhere. “[T]his

section” refers to the broader AIM Act, so it simply

directs EPA to allocate allowances according to the

phasedown schedule contained in the Act. It is not a

hidden direction to adopt from an entirely different

section of an entirely different law a historicalmarket-share requirement that appears nowhere in

the AIM Act’s text.

Lacking textual support, respondents and their

amici follow the D.C. Circuit’s lead of trying to shift

focus away from the statutory text. But none of their

creative interpretive leaps comports with ordinary

rules of statutory construction. Pet.24-25. For

example, they spill much ink explaining how the AIM

Act was supposedly passed as a follow-on to Title VI,

purportedly to address similar environmental

concerns.

Int.Resp.Br.3-6; HARDI.Amici.Br.4-11.

But while repurposing the AIM Act into a climatecrisis program was certainly EPA’s goal, the statute

says nothing about greenhouse gases or the

environment. A few rogue statements during a

subcommittee hearing notwithstanding, the only

legislative purpose expressed by the Act, contained in

its title, is to promote “American Innovation and

Manufacturing.” 42 U.S.C. §7675(a). And while

respondents make much of some limited structural

10

similarities between the AIM Act and Title VI, those

similarities just confirm that, where the AIM Act

expressly diverges from Title VI—e.g., on allowance

allocation—that difference is intentional. Neither the

D.C. Circuit, respondents, nor their amici can explain

why Congress would use markedly different language

in the AIM Act’s allowance-allocation provision if it

meant to incorporate Title VI’s historical-marketshare requirement.

The D.C. Circuit’s strained construction of the

AIM Act is particularly puzzling given that EPA itself

disclaims that interpretation and has implemented an

allocation scheme that is deliberately not based on

historical market share. The ad hoc allocation scheme

EPA adopted instead assigned allowances for new

market entrants and permits EPA to “retire, revoke,

or withhold” allowances from any company it wishes

to penalize. See 86 Fed. Reg. 55,116, 55,147, 55,16970 (Oct. 5, 2021). Of course, EPA’s interpretation is

not binding on the courts. See Int.Resp.Br.22 (quoting

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 395

(2024)). But it is exceedingly strange for the D.C.

Circuit to try to salvage the AIM Act by adopting a

narrowing construction that is directly at odds with

how the agency implementing the Act is actually

administering it, and then uphold the agency’s

administering rule.

That sort of contradictory

interpretative gymnastics powerfully illustrates the

obscene lengths to which courts go to avoid

invalidating a law on nondelegation grounds.

11

II. This Case Provides An Excellent Vehicle To

Resolve

An

Exceedingly

Important

Question.

This case affords an excellent opportunity for this

Court to either finally breathe some life into the

intelligible-principle test or consider whether it needs

reforming.

As the D.C. Circuit’s opinion

demonstrates, lower courts would rather rewrite

statutes wholesale than find unconstitutional

delegations of legislative power, even when one stares

them in the face. This case provides the perfect vehicle

to remedy that intolerable state of affairs. See Pet.2629.

Respondents’ efforts to evade review fall flat.

Respondents first protest that there is no circuit split

on how to interpret the AIM Act. Of course not:

Congress requires that challenges to the Act be

brought exclusively in the D.C. Circuit. See 42 U.S.C.

§7675(k)(1)(C).

Congress’ decision to centralize

challenges in a single circuit should not immunize

them from this Court’s review. See West Virginia, 597

U.S. at 717-20 (granting review of EPA rule governed

by the same judicial-review provision and lacking any

circuit split); see also Gundy, 588 U.S. at 135.

Moreover, this case is not just about the AIM Act; it is

about whether there are any judicially enforceable

limits on Congress’ delegation power. As noted in

Choice’s petition, judges across the country have

implored this Court to revisit and clarify the contours

of the law on that critical question. Pet.29. Indeed,

respondents concede that “[t]he nondelegation

question is presently top of mind for jurists and nonjurists alike.” Int.Resp.Br.28.

12

Respondents bizarrely (and unfairly) question

Choice’s motivations in bringing this challenge,

claiming that Choice’s real concern is with how EPA

allocated the allowances, not whether it was

constitutionally permitted to do so. Int.Resp.Br.15.

Of course Choice cares about how EPA allocated

allowances; it would lack Article III standing if EPA

had given it everything it wants. But that does not

somehow convert this constitutional challenge into an

arbitrary-and-capricious one. Contra id. Respondents

also suggest that Choice should simply petition EPA

for a new rulemaking. Int.Resp.Br.17. But forcing

Choice to petition the very agency wielding

unconstitutional legislative power to wield that power

again is hardly a satisfactory solution to the

underlying nondelegation concern.

Intervenor-Respondents next suggest that the

AIM Act is an unsuitable candidate for addressing

nondelegation concerns because it implicates Article

II’s treaty power. Int.Resp.Br.24-25. Notably, the

government does not embrace this argument. After

all, the Act—which, again, targets “American

Innovation

and

Manufacturing”—never

even

mentions a foreign treaty, let alone purports to

implement or ratify one. That is unsurprising; the

treaty to which respondents refer was ratified two

years after the AIM Act was passed. 168 Cong. Rec.

S4898 (daily ed. Sep. 21, 2022).

Finally, conceding the need for this Court to

revisit the intelligible-principle test, respondents note

another petition involving that test. Int.Resp.Br.28

(citing Pheasant v. United States, No. 25-6911 (U.S.

Feb. 20, 2025)). But that petition asks only whether

13

the test applies differently to criminal punishments.

The more fundamental question is whether Congress

can empower executive agencies to make legislative

decisions without providing any guidance whatsoever

on how to do so. That question is squarely presented

here. The Court should take this opportunity to make

clear once and for all that courts have both the power

and duty to police violations of Article I’s Vesting

Clause and the separation of powers that it preserves.

14

CONCLUSION

This Court should grant the petition.

Respectfully submitted,

ZHONETTE M. BROWN

KAITLYN D. SCHIRALDI

MARK S. CHENOWETH

NEW CIVIL LIBERTIES

ALLIANCE

4250 N. Fairfax Dr.

Suite 300

Arlington, VA 22203

PAUL D. CLEMENT

ERIN E. MURPHY

Counsel of Record

MATTHEW D. ROWEN

ILAN J. POSNER

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

ERIN MORROW HAWLEY (202) 742-8900

ALLIANCE DEFENDING erin.murphy@clementmurphy.com

FREEDOM

44180 Riverside Pkwy.

Lansdowne, VA 20176

DAVID M. WILLIAMSON

WILLIAMSON LAW

+ POLICY, PLLC

1001 Connecticut Ave. NW

Suite 612

Washington, DC 20036

Counsel for Petitioner

June 2, 2026