In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by NCLA General Counsel Zhonette Brown to discuss a petition for certiorari asking the U.S. Supreme Court to take up a major separation-of-powers case involving the Environmental Protection Agency.

The case, Choice Refrigerants v. EPA, challenges how the agency implemented Congress’s AIM Act, which created a cap-and-trade system to phase down certain refrigerants. According to the petition, Congress provided virtually no guidance on how market allowances should be distributed—leaving EPA with sweeping discretion to decide which companies would keep their market share and which would lose it.

Zhonette explains why this case presents a “clean vehicle” for the Supreme Court to revisit the nondelegation doctrine, which holds that Congress cannot hand over its legislative power to executive agencies without providing meaningful direction. The discussion explores the “intelligible principle” test, the D.C. Circuit’s reasoning, and why the Court may finally confront the limits of congressional delegation after nearly a century without striking down a statute on nondelegation grounds.

The episode also highlights the real-world stakes for small businesses like Choice Refrigerants, founded by entrepreneur Ken Ponder, whose patented refrigerant products were affected by EPA’s allocation decisions.

Mark Chenoweth: Welcome to Unwritten Law with Mark Chenoweth and John Vecchione. We are joined today by NCLA General Counsel, Zhonette Brown. Zhonette, welcome back to Unwritten Law.

Zhonette Brown: Thank you. Good to be here.

Mark Chenoweth: And Zhonette is here because she has just filed a petition for writ of certiorari with the US Supreme Court, in a case you have been since day one, Zhonette. This is the RMS of Georgia doing business as Choice Refrigerants v. EPA case. Can you just briefly remind folks who might have heard us on the podcast talking about this case before, what the underlying issue is. And then we’ll just ahead to what the issues are – what the main issue is that we’re taking up with the Supreme Court.

Zhonette Brown: Sure. The wheels of justice move slow. So, going back, RMS does business as Choice Refrigerants of Georgia. They are a small company based in Alpharetta, Georgia. They developed patents for certain refrigerants that came after other products had been phased out by the EPA.

Mark Chenoweth: Right. As part of the Clean Air Act in the early 90s, right?

Mark Chenoweth: But this wasn’t a complete phase out. This was a phase down. Unlike, what happened with the prior generation of –

Mark Chenoweth: So, no one is going to be happy when the government comes in and says, “Hey. You’re going to have to do a lot less of what you were doing before.” But my sense is that the EPA made this even worse. Or, I guess you could say Congress made this even worse because it left so much up to the EPA here. Tell me about – what does the AIM Act do and what doesn’t it do?

Zhonette Brown: Sure. Well, the AIM Act identifies a certain group of refrigerants that says, these refrigerants have to be reduced over time in phases. So, down 10 percent in the first phase, down 40 percent in the next phase, etc. But Congress didn’t tell EPA how that should be done. And the effect of that was that the EPA had the ability to decide, “Do you Choice, lose your rights? Or does Dupont? Or Honeywell? Or a foreign company? Or does someone else lose their rights, and why?”

So, Congress didn’t make up the reasoning as to why anyone’s market share would be reduced. They left it to EPA to do. And in this particular case, EPA did it worse than usual.

Mark Chenoweth: Leaving EPA to their own decide is never a good idea, John?

John Vecchione: No. Well, any of the administrators, when you don’t tell them what to do or why to do it, certainly, they’re going to make up their own – their own system. Which is not going to be the way Congress would do it. Which is usually split the baby, and they didn’t split the baby here. Certain people got hurt a lot worse.

Zhonette Brown: Yeah, our client got their ox gored. And the point of Congress not telling why, that’s another interesting part about this statute is, not only did Congress not tell EPA why to take anyone’s given market share. Congress didn’t say in the statute why it was requiring a phase down of this market. So, EPA being EPA said, “Oh, well clearly it’s for environmental reasons.” But there’s nothing like that in the statute. And in fact, since the 90s Congress hadn’t passed that kind of an environmental statute.

John Vecchione: So, originally, as I recall, and correct me if I’m wrong. The refrigerants had to be eliminated because they’re making a hole in the ozone. Right? And now we don’t have a hole in the ozone.

Mark Chenoweth: Right.

Zhonette Brown: – the refrigerants of day. Way back in the 90s those types of refrigerants and products created a hole in the ozone.

Mark Chenoweth: And when they made that law, Congress actually said, “We’re doing this because there’s a hole in the ozone.”

Zhonette Brown: And in that law, Congress actually said, “When we phase this out in these steps, those phases apply to the people who are making the product beforehand.” They didn’t allow new market entrants, and they specified that this was a direct, proportional phase out.

John Vecchione: I recall that.

Mark Chenoweth: So, how’s this one different?

Zhonette Brown: This one is different, because again, Congress just said, “EPA, you establish a cap and trade regime and do so within – it was roughly 180 days.” And EPA, in the rule making, recognized that they had all sorts of discretion on how to allocate the market. Recognized in its view that it wasn’t limited to how it had been done before. And so –

Mark Chenoweth: Sort of rubbing its hands together.

Zhonette Brown: Exactly. And on top of its list, social and environmental justice. So, EPA sliced off part of the market of people who had invested in it, had patents like our client, and just gave them away to new market entrants who may have been disadvantaged. And then EPA moved in the direction of favoring administrative ease, i.e., if you had been a good boy, filed paperwork with the EPA; you got rights. Even if those rights didn’t necessarily belong to you.

Mark Chenoweth: And none of this was in what Congress wrote?

Zhonette Brown: None of it.

John Vecchione: And none of that also effects the environment. For instance, it isn’t like they did any studies and said, “Well, this refrigerant is causing more damage than that refrigerant. So, we have to – we’ll allow this one that’s a little less damaging to last a little longer.” Nothing like that. No scientific expertise was applied.

Zhonette Brown: That’s correct. That’s the whole point of the allowances in the AIM Act, is that they are fungible and tradable between products. And so, the more damaging a product is the more allowances it requires, etc. So, none of that is part of what figured into EPA’s calculation.

Mark Chenoweth: So, we might not like this, but under current law Congress is allowed to delegate some of its legislative power to an agency if it gives enough instruction to the agency. So, what’s wrong with what the AIM Act did here?

Zhonette Brown: Well –

Mark Chenoweth: What was missing?

Zhonette Brown: I don’t know if I would 100% agree with the way you’ve raised it. Because the point of Congress –

Mark Chenoweth: Justice Cavanaugh would.

Zhonette Brown: Well, the point of Congress having to give direction, is that that direction, those standards, those rules that Congress has to give to an agency – that is what is supposed to make it so the agency is implementing or executing on the law, rather than making the law.

Mark Chenoweth: Right. So, just to give everybody a little bit of lawyer speak here, under current doctrine the Congress has to specify an intelligible principle in the law that the agency can then use in order to implement it. And we’re saying – part of what we’re saying in this surrepetition is, Congress didn’t do that.

Zhonette Brown: Congress didn’t do that here, yeah. And the point of the intelligible principle is, like I said, it’s supposed to separate legislative power from executive power. If Congress gave enough rules, gave an intelligible principle, then what EPA is doing in theory is executing the law instead of making it up.

Mark Chenoweth: The other thing that’s interesting to me about this case, and it’s different, John, from a lot of the other cases we’ve seen, is a lot of times there’s an argument over, “Well, did they say enough? Was there enough here?” Congress literally said nothing here about 98% of the allowances.

Zhonette Brown: Congress literally said nothing here. And there’s a number of other reasons why this is a great vehicle to take up what’s called the Nondelegation Doctrine. There’s no – we do not argue, and I don’t think it would qualify as a major question in doctrine case, where Congress can say, or the court can say, “Did Congress actually delegate that power?” There’s no question Congress delegated power. And there’s no question of, “Did they give enough of a principle that it’s an intelligible principle?” There’s none of that here.

And this isn’t a case, for example, that I think Justice Thomas, under his dissent in the tariffs case would say involves privileges, rather than rights. We’re stalking specifically about reliance interest. The ability to do the business that you have invested in, your patented products, etc. So, this is a pure legislative power case.

Mark Chenoweth: Right. So, you have Congress might have the power to take these rights away. I don’t think we’re challenging here, at least, the ability for Congress to reduce the size of the market.

Zhonette Brown: Right.

Mark Chenoweth: But we’re saying, “Congress, you have to decide who is going to have to give up market share. You can’t just tell EPA to do it and not give them any direction or instruction.”

Zhonette Brown: Right. And the point of that, obviously, is accountability. If Congress are going to make decisions that are going to cost people their business, Congress has to make that decision itself, rather than let EPA make the decision. Congress can’t just say, “You know, we have too many of any given product cars on the road. EPA go figure out who doesn’t get to drive their car anymore.” It’s the rights impacting decision that has to be made by Congress.

John Vecchione: And what did the court below say, what court was it, and what did we say in the Supreme Court?

Zhonette Brown: Sure. So, the court below, because it’s a case that incorporated parts of the Clean Air Act – not the relevant parts, but the procedural parts, it had to be in front of the DC circuit. So, the DC circuit is the original court that heard our petition. And they denied our petition. They found the statute was sufficiently intelligible. But not the statute and what’s written in the statute. Instead, what the DC circuit found was that Congress obviously intended to incorporate part of the Clean Air Act.

Mark Chenoweth: Clearly.

Zhonette Brown: Clearly. Although it didn’t mention it by name anywhere – mentioned other parts of the Clean Air Act.

Mark Chenoweth: Well, that sounds very helpful. The DC circuit’s trying to supply the intelligible principle that Congress didn’t supply. What’s wrong with that?

Zhonette Brown: That’s a whole different constitutional problem. So, that is the judiciary, instead of Congress now supplying intelligible principle. So, instead of an Article II branch supplying the Article I power; now you have the Article III branch. Which is even less accountable, theoretically, supplying the intelligible principle. So, you cannot fix a constitutional wrong with another constitutional wrong.

John Vecchione: It’s like –

Mark Chenoweth: I think I said in the surrepetition, two constitutional wrongs don’t make a right.

John Vecchione: It’s as if they took the rational basis test and said, “We’re going to make a rational basis test for the intelligible principle. And if we can think of an intelligible principle then they win.” That’s what it strikes me as.

Zhonette Brown: Right. Well, that’s a version of today’s constitutional avoidance, which is another problem here. But yeah, the worst part – even worse than what the DC circuit did – is it said, “Okay. We’re going to incorporate what we call the market share version of what existed under the Clean Air Act.” And so, what EPA did is fine. But EPA didn’t do a market share version. EPA took away part of the market to give it to new market entrants. That’s by definition not market share. And then EPA figured out the rest of it by doing, again, who filed paperwork with them. Which is in no way, shape, or form what any business person would consider being part of the market.

Mark Chenoweth: So, the question presented in this case is whether Congress violated the vesting clause of Article I, by giving it executive agency, unbounded discretion to choose which private parties are entitled to participate in this multi-billion dollar market. So, the vesting clause of Article I, for folks who maybe aren’t steeped in the Nondelegation Doctrine. What’s the connection between those two things?

Zhonette Brown: Well, the vesting clause basically says all legislative power that is granted in the constitution shall be vested in the Congress of the United States. And so, it takes legislative power to make these impact in rules. The Nondelegation Doctrine is a question. It questions whether it’s the test for deciding whether Congress has inappropriately given away its legislative power. And under the Nondelegation Doctrine, as you mentioned before, so long as Congress – now, so long as Congress gives intelligible principle, the courts have found that there is no violation of the constitution.

Mark Chenoweth: Sorry, I lost my train of thought. I don’t know if you want to –

Male Speaker: I’ll cut this up.

Mark Chenoweth: Yeah, mark that. Did you have something else?

John Vecchione: I can. So, what are they asking the court to do, though, with this intelligible principle? We don’t come out – what I’m saying is, we don’t come out of the box and say, “Oh, get a new test.”

Zhonette Brown: We don’t. We basically say, “This should be the metric by which it’s determined whether or the intelligible principle actually does its job. Because if this statute which gives no guidance, if it provides – if it passes the intelligible principle test, then the intelligible principle test is dead. But we don’t argue for a new test at the outset.”

John Vecchione: And so, a lot of our listeners know this case. So, is this better or worse that Gundy?

Zhonette Brown: This case is a better case. It’s a way better case –

John Vecchione: Why?

Zhonette Brown: – than Gundy. Because –

Mark Chenoweth: Because it doesn’t involve sexual predators, John.

John Vecchione: I mean, not just for the elite old folk.

Mark Chenoweth: Oh, okay.

Zhonette Brown: Well, what’s an issue in this case as I said is pure legislative power, number one. So, there is no overlap of executive, legislative, judicial power in the criminal area like you had both in Mistretta and in Gundy and –

John Vecchione: Right.

Zhonette Brown: – some of the titling, the drug cases as well.

John Vecchione: Right.

Zhonette Brown: So, that’s one reason. The other reason is in Gundy, the court, in a different context had already filled in what the statute meant in terms of saying, “Under the Gundy event, that sexual predators or people who are subject to the law had to register as soon as possible.” Right? And so, there’s nothing, there’s no pre-existing interpretation here. There’s no long standing history. This is all fresh.

Zhonette Brown: Yeah. If you look back again, at the tariffs case, at the FCC vs. Consumer Research case, so many of the cases – Gundy, Mistretta – so many of the cases over the last few decades that the Supreme Court has taken up do involve some sort of arguably overlapping power. Whether it’s foreign affairs, whether it’s crime, whether it’s managing federal assets, federal land; that sort of thing. Whether it’s privileges instead of rights, the way that Thomas was talking about in the tariffs case. This case doesn’t have any of those complications.

John Vecchione: And what is the remedy we’re looking for? The whole statute being struck down, or what happens?

Zhonette Brown: No. Because there’s a lot more to the AIM Act that we haven’t talked about. So, there’s just the narrow cap and trade part that would be struck down. There are other elements to the statute that allow EPA to ratchet down certain market sectors in a different way. So, there’s a lot that would survive. It’s just a little bit that would really be struck.

Mark Chenoweth: So, you’re asking the court to reinvigorate the intelligible principle test or the Nondelegation Doctrine, or?

Zhonette Brown: They either need to articulate the intelligible principle test in a way that shows how this statute fails to meet it, or they need to come up with a new test.

Mark Chenoweth: One of the things the surrepetition talks about is a judicially administrable test. So, I think one of the problems that particularly lower courts have had with these nondelegation cases is, they don’t know how they’re supposed to decide how much is too much, or how much isn’t enough, or what have you. Well, the problem is that really should be on Congress to establish what it’s doing in a way that the judge can look at what Congress did and say, “Oh, okay. There are enough – there’s enough guidance in this statute, there’s enough guardrails that have been given to the agency that we can judge as judges, whether or not the agency is following the will of Congress or not.”

When those aren’t there at all there’s no way for the judge to tell. And so, what they ought to do is say, “Look. That statute doesn’t meet the standard of giving enough.” They haven’t been willing to do that. But at least here where there’s, like we say, literally nothing. It ought to be relatively easy for them to say, “Well, whatever else might pass muster under our somewhat toothless existing test, this doesn’t pass.”

Zhonette Brown: Right. That’s exactly right. And it is high time; it’s been 91 years. And if you go back to the old cases they did say there had to be a judicially administrable standard. That means as a judge you have to be able to look at what the agency did, compare it to the statute that was written, and say either, I can tell that the agency followed the will of Congress in the letter of the statute, or they didn’t. But this, “I can’t tell.” Which has led to deference and a lot of it – a lot of other problems. That’s then not a judicially administrable standard that Congress has given. And therefore, it would fail.

Mark Chenoweth: Absolutely. So, as I said you’ve been on this case from the beginning. But we’ve added some help here at the Supreme Court stage, a couple of lawyers from Clement & Murphy, namely Clement and Murphy. And so, Erin Murphy is the counsel record on this case. Former Solicitor General Paul Clement has been helping out. But also, Erin Hawley has been helping out. How has that process gone? Do you want to say anything about the work that those folks have been doing on the surrepetition?

Zhonette Brown: All of them are experienced Supreme Court litigators. All of them have clerked in front of the Supreme Court. Paul Clement obviously was the former Solicitor General of the United States. But they all contributed to forming these arguments, the way to present them to the Supreme Court. And Erin Hawley was actually involved a little bit earlier in trying to get the DC circuit en banc to reconsider what the panel had done. But just helping to frame the case in a way that the Supreme Court will understand that this is the perfect vehicle for them to take up.

John Vecchione: Murphy, the day we’re taping, she just argued today, as a matter of fact. I was just listening.

Mark Chenoweth: Oh, okay. I didn’t know that. Well, so, we worked in parallel with Paul Clement to dispose of the Chevron deference doctrine, John. And so, one of the things I said in our press release is that it’s exciting to work even more directly with Erin and Paul to give the Nondelegation Doctrine its day of reckoning. So –

John Vecchione: Yes.

Mike Chenoweth: – it would be fun to see not just the Chevron doctrine go down in relentless, but to see the Nondelegation Doctrine either go down or –

John Vecchione: Revivified, I think is what Alito told Neal Katyal. “You don’t want to be the guy who revivifies the –“ I remember. I think that’s what it was.

Mark Chenoweth: Yeah. So, the thing to me, Zhonette, that was exciting because this isn’t the first time I’ve asked Paul or Erin if they might want to help us out on a case. And they’re often busy. They don’t have – but they took a real interest in this case. They said, “You know what? I know we’ve said no a bunch, but yeah, we’ll help you on this one. Because they’re real believers in the case that you have here. They think this is a cert-worthy issue.”

Zhonette Brown: This is a very unique statute. It’s a very pristine set of circumstances that serves it up on a silver platter to the Supreme Court. If you’re ever going to do your job in this area of separation of powers, now is the time to do it.

Mark Chenoweth: Yeah. So, I have an unfair question for you. The court just looked at nondelegation last term, right, in the Consumer’s Research v. FCC case. Does that make you concerned the they’re not going to be willing to do it again so soon, or does that make you think, “Look. They’re obviously in a mood to consider or think about these things. So, maybe they’ll take on our case.”

Zhonette Brown: Well, I think at least some of the justices were not happy with the way that the court, in that case, again, filled in frankly, the intelligible principle. Because the interpretation the majority gave the Communications Act in FCC was inconsistent with all the interpretations that had been given by courts below. The court put boundaries and strictures on the FCC that nobody else thought existed. There’s also though some language. There’s multiple pieces actually of language in the opinions and the dissents that I think give hope that the Supreme Court would take this.

The Supreme Court indicated that context matters, right? The discussion was, are we delegating the power to design a tax stamp, or are we delegating the power to reorder the entire national economy? Well, one of the other examples that Justice Gorsuch gave was controlling and market and industry. Right? And so, this gives the Supreme Court the opportunity that it should take, and it frankly owes to the lower court to take. To sort out how that scale works. What happens here when we’re talking about a multi-billion dollar industry with a product that’s in almost everybody’s home and vehicle? But it’s still not a major Questions Doctrine case.

Mark Chenoweth: Yeah. John, what is your prediction here? Do you think this is the kind of case that’s likely to get the court’s attention?

John Vecchione: I will say this: the problem with nondelegation is that it is hit or miss. There seems to be appetite. But is there appetite by four? Is the question I have. And I think there has to be after Gundy, right? There were four –

Mark Chenoweth: Well, they keep saying that there’s five-ish votes, maybe six.

John Vecchione: Yeah. So, therefore, I say yes. I think it’s a good vehicle. We’ll see what they do. It’ll be interesting to see if it’s relisted one time.

Mark Chenoweth: Let me ask you this.

John Vecchione: Not seven times, not eight times; one time.

Mark Chenoweth: Yeah. Let me ask you this: so, the head of the EPA, I’m blanking on his name, the former –

Zhonette Brown: Lee Zeldin.

Mark Chenoweth: Lee Zeldin. Thank you. He’s likely to agree with us on what needs to happen to the nondelegation issue –

Zhonette Brown: Well, if you –

Mark Chenoweth: Why is the EPA going to fight us on this? They should just role over.

John Vecchione: For the same reason that Gene Scalia liked the Chevron deference. That he wrote about why he liked it. Well, Lee Zeldin’s the head of the EPA. By saying his title you said his interest and then you said why.

Mark Chenoweth: They like it when Congress just hands over lots of things for them to do.

John Vecchione: Exactly. “I have more power, not less power. Oh, I guess I’ll keep quiet for now.” And I will say this: more seriously, but only a little more seriously. They have a duty to protect the statute and their regulations. And that’s their duty and that’s their client. So, that’s – that’s the non-cynical reason.

Mark Chenoweth: Yeah. That’s what Solicitor General Sauer would say, or Sarah Harris would say, as to why they have to defend this –

John Vecchione: Correct.

Mark Chenoweth: – this statute So, what happens now, Zhonette?

Zhonette Brown: Now we wait. We wait to see if the Supreme Court is going to grant cert or not. The EPA and a couple of trade associations who are in the case have 30 days to file some briefs. We have 30 days from when the case is docketed for some – hopefully for some amici to come in and support our argument, that the Supreme Court should take this case. And then after that passes –

Mark Chenoweth: If you’re listening, potential amici.

Zhonette Brown: Please join us.

Mark Chenoweth: There’s still time. By the time you’re hearing this, there’s at least three weeks to get your act together and file an amicus brief and be in the case that’s going to rewrite the Nondelegation Doctrines.

Zhonette Brown: There you go.

Mark Chenoweth: Yeah. Well, I think this is an exciting case. Maybe one final word about our client, and Ken Ponder, and Choice Refrigerants. And there’s a wonderful video that our Erin Reese has put together that features you that folks can go watch and learn more about this case.

Zhonette Brown: Yeah. You can really see when you watch that video how Ken Ponder built this business from ground up. Literally starting by cleaning refrigerants out of air conditioners and refrigerators in dumps.

Mark Chenoweth: Yeah.

Zhonette Brown: And building this –

Mark Chenoweth: At the garbage dump that people just left there.

Zhonette Brown: Right. .

Mark Chenoweth: Yeah.

Zhonette Brown: Because those products couldn’t be vented to the air. So, then he is a guy who just comes up with solutions for his customers all the time. And that’s how he came up with these patented products. You had to get rid of certain types of refrigerants, R21, etc.. He had to come up with a new product that would work there in those systems without completely redesigning the system and redoing everything about the way the product worked. And he found those kinds of solutions. Like I said, he’s exactly what you envision when you think of small business entrepreneur. Part of what he said is because he’s small, he can move quicker than big corporations and get things done.

Mark Chenoweth: Yeah.

Zhonette Brown: And he did.

Mark Chenoweth: We used to call that Yankee ingenuity. I don’t know if they like that term down in Georgia, John.

Zhonette Brown: Yeah. I’m going with no.

Mark Chenoweth: But I wish you well, Zhonette. I think this is a fantastic case, I think a fantastic client, a great issue. Thrilled that we have the Clement & Murphy folks on board helping along with Erin Hawley. And I’m optimistic that we’re going to get four votes for cert here. We’ll see what the – see what the government’s brief says. We’ll see what the amici say and so forth. But we will certainly keep folks apprised of what’s happening. So, thank you for joining us on Unwritten Law.

Zhonette Brown: Thanks again.

[End of Audio]

Duration: 27 minutes