705 F.3d 470 (D.C. Cir. 2013), 10-1347, Honeywell International Inc. v. Environmental Protection Agency

Docket Nº:10-1347, 10-1348, 10-1349, 10-1350.
Citation:705 F.3d 470
Opinion Judge:KAVANAUGH, Circuit Judge:
Party Name:HONEYWELL INTERNATIONAL, INC. and E.I. DuPont de Nemours and Company, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Arkema Inc., et al., Intervenors.
Attorney:Timothy K. Webster argued the cause for petitioners. With him on the briefs were James R. Wedeking, Richard Ayres, Jessica Olson, Chet M. Thompson, Robert J. Meyers, and David Y. Chung. Perry M. Rosen, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief wa...
Judge Panel:Before: ROGERS, BROWN, and KAVANAUGH, Circuit Judges. Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit Judge ROGERS joins. Dissenting opinion filed by Circuit Judge BROWN. BROWN, Circuit Judge, dissenting:
Case Date:January 22, 2013
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 470

705 F.3d 470 (D.C. Cir. 2013)

HONEYWELL INTERNATIONAL, INC. and E.I. DuPont de Nemours and Company, Petitioners

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent

Arkema Inc., et al., Intervenors.

Nos. 10-1347, 10-1348, 10-1349, 10-1350.

United States Court of Appeals, District of Columbia Circuit.

January 22, 2013

Argued Nov. 7, 2012.

On Petitions for Review of Rules of the Environmental Protection Agency.

Timothy K. Webster argued the cause for petitioners. With him on the briefs were James R. Wedeking, Richard Ayres, Jessica Olson, Chet M. Thompson, Robert J. Meyers, and David Y. Chung.

Page 471

Perry M. Rosen, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Diane E. McConkey, Attorney. Matthew R. Oakes, Trial Attorney, entered an appearance.

Dan Himmelfarb argued the cause for intervenors. With him on the brief were John S. Hahn, Roger W. Patrick, Brian J. Wong, William J. Hamel, Roscoe C. Howard Jr., and Gia V. Cribbs.

Before: ROGERS, BROWN, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Circuit Judge ROGERS joins.

Dissenting opinion filed by Circuit Judge BROWN.

KAVANAUGH, Circuit Judge:

Under the Clean Air Act, the Environmental Protection Agency administers a cap-and-trade program regulating the production and consumption of hydrochlorofluorocarbons, a class of ozone-depleting pollutants. (We frown on excessive use of acronyms, but in a case involving a 24-letter word, we think it appropriate to use HCFCs for hydrochlorofluorocarbons.) This cap-and-trade program entails overall caps on production and consumption of various HCFCs for each year, as well as EPA-administered baseline allowances of HCFCs for each participating company. Companies are then permitted to transfer their allowances, subject to certain statutory and regulatory restrictions.

Honeywell and DuPont, whom we refer to collectively as Honeywell, complain that certain 2008 transfers made by their competitors Arkema and Solvay were deemed to permanently increase those competitors' future baseline allowances of HCFC-22. Because there is an overall cap on HCFC-22 production, this is a zero-sum system: The increased allowances to Arkema and Solvay in turn reduced Honeywell's market share and allowances of HCFC-22. The problem for Honeywell here is that this Court concluded in Arkema Inc. v. EPA that those permanent transfers were valid under the Clean Air Act. 618 F.3d 1, 6-9 (D.C.Cir.2010). Honeywell believes that Arkema was incorrectly decided. Absent en banc review, we must adhere to circuit precedent. And because Honeywell's other challenges to the 2008 transfers are meritless, we deny the petitions for review.

I

The Clean Air Act gradually phases out all HCFCs over five regulatory periods spanning to 2030. See 42 U.S.C....

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