ORAL
ARGUMENT
HEARD
OCTOBER
17,
2005
_______________________________________________
_______________________________________________

IN
THE
UNITED
STATES
COURT
OF
APPEALS
FOR
THE
DISTRICT
OF
COLUMBIA
CIRCUIT
No.
04­
1438
NATURAL
RESOURCES
DEFENSE
COUNCIL
Petitioner,
v.

UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
and
MICHAEL
O.
LEAVITT,
Administrator,
U.
S.
Environmental
Protection
Agency
Respondents.

Petition
for
Review
of
Final
Action
of
the
United
States
Environmental
Protection
Agency
SUPPLEMENTAL
BRIEF
FOR
PETITIONER
David
D.
Doniger
(
D.
C.
Bar
No.
305383)
Amanda
C.
Leiter
Natural
Resources
Defense
Council
1200
New
York
Ave.,
N.
W.,
Suite
400
Washington,
D.
C.
20005
(
202)
289­
6868
(
phone)
(
202)
789­
0859
(
fax)

Attorneys
for
Natural
Resources
Defense
Council
DATED:
November
7,
2005
i
TABLE
OF
CONTENTS
TABLE
OF
CONTENTS.............................................................................................................
i
TABLE
OF
AUTHORITIES.......................................................................................................
ii
GLOSSARY..............................................................................................................................
iii
INTRODUCTION......................................................................................................................
1
ARGUMENT
.............................................................................................................................
1
I.
Under
the
Clean
Air
Act,
EPA
May
Exempt
the
Production
or
Consumption
of
Methyl
Bromide
for
Critical
Uses
Only
to
the
Extent
Consistent
with
the
Montreal
Protocol............................................................................................................
1
II.
The
1997
Protocol
Adjustment
Prohibits
Post­
2004
Production
or
Consumption
of
Methyl
Bromide
Unless
Authorized
by
a
Decision
of
the
Parties................................................................
3
III.
EPA's
2005
Exemption
Rule
Violates
the
Clean
Air
Act
Unless
It
Complies
with
the
Conditions
in
the
Protocol
Parties'
Critical
Use
Decisions.................................................................
4
CONCLUSION
..........................................................................................................................
5
RELEVANT
STATUTORY
SECTIONS
ii
TABLE
OF
AUTHORITIES
STATUTES
&
TREATIES
1999
Omnibus
Consolidated
and
Emergency
Supplemental
Appropriations
Act
(
Pub.
L.
105­
277,
Oct.
21,
1998)
..................................................................
2
Clean
Air
Act
§
601(
9),
42
U.
S.
C.
§
7671(
9)
..........................................................................
1,
2
*
Clean
Air
Act
§
604,
42
U.
S.
C.
§
7671c..........................................................................
passim
Clean
Air
Act
§
614(
b),
42
U.
S.
C.
§
7671m(
b)
...........................................................................
2
*
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer,
Sept.
16,
1987,
26
I.
L.
M.
1550
(
entered
into
force
Jan.
1,
1989)
........................................
passim
United
Nations
Environment
Programme,
Report
of
the
Ninth
Meeting
of
the
Parties
to
the
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer,
UNEP/
OzL.
Pro.
9/
12
25
(
1997)
...................................................
1
Decision
IX/
6:
United
Nations
Environment
Programme,
Report
of
the
Ninth
Meeting
of
the
Parties
to
the
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer,
UNEP/
OzL.
Pro.
9/
12
26­
27
(
1997)
......................................................................................
1,
4,
5
Decision
Ex.
I/
3:
United
Nations
Environment
Programme,
Report
of
the
First
Extraordinary
Meeting
of
the
Parties
to
the
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer,
UNEP/
OzL.
Pro.
ExMP/
1/
3
14­
15
(
2004)
.......................................................
1,
4,
5
FEDERAL
REGISTER
69
Fed.
Reg.
76,982
(
Dec.
23,
2004)...........................................................................................
1
________________________________________________________
*
Authorities
upon
which
we
chiefly
rely
are
marked
with
asterisks.
iii
GLOSSARY
Pursuant
to
Circuit
Rule
28(
a)(
3),
the
following
is
a
glossary
of
all
acronyms
used
in
this
brief:

CAA
Clean
Air
Act
EPA
United
States
Environmental
Protection
Agency
NRDC
Natural
Resources
Defense
Council
INTRODUCTION
Following
oral
argument
in
this
matter,
the
Court
issued
an
Order
directing
the
Parties
to
"
address[]
whether
`
Decisions'
issued
by
the
parties
to
the
Montreal
Protocol
are
cognizable
`
Adjustments'
under
article
2(
9)
of
the
Protocol
and/
or
whether
such
Decisions
are
otherwise
cognizable
in
federal
court
actions
brought
to
enforce
the
Protocol
and
the
relevant
terms
of
the
Clean
Air
Act
(`
CAA'),
see
42
U.
S.
C.
§
7671(
9)."
Order
of
Oct.
18,
2005,
at
1.
Petitioner
Natural
Resources
Defense
Council
("
Petitioner"
or
"
NRDC")
does
not
believe
that
the
relevant
Decisions,
IX/
6
[
JA
223]
and
Ex.
I/
3
[
JA
255],
are
"
Adjustments"
as
defined
in
Protocol
Article
2,
¶
9.1
Nevertheless,
the
criteria
contained
in
those
Decisions
are
binding
on
the
Environmental
Protection
Agency
("
EPA")
and
enforceable
by
this
Court,
because
those
criteria
define
the
scope
of
EPA's
authority
under
Section
604(
d)(
6)
of
the
Clean
Air
Act,
42
U.
S.
C.
§
7671c(
d)(
6),

to
allow
post­
2004
production
and
consumption
of
methyl
bromide
for
critical
uses.

ARGUMENT
I.
Under
the
Clean
Air
Act,
EPA
May
Exempt
the
Production
or
Consumption
of
Methyl
Bromide
for
Critical
Uses
Only
to
the
Extent
Consistent
with
the
Montreal
Protocol.

The
Clean
Air
Act
itself
authorizes
this
Court
to
rule
on
the
merits
of
Petitioner's
claim
that
the
2005
exemption
rule2
violates
the
criteria
established
in
Decisions
IX/
6
and
Ex.
I/
3.
To
1
Under
Article
2
of
the
Montreal
Protocol,
"
adjustments"
are
adopted
by
"
decisions"
of
the
Parties.
Montreal
Protocol
Art.
2,
¶
9
[
JA
177].
Not
all
Decisions
are
adjustments,
however.
Adjustments
have
been
made
at
five
meetings
of
the
Montreal
Protocol
Parties:
London
in
1990,
Copenhagen
in
1992,
Vienna
in
1995,
Montreal
in
1997,
and
Beijing
in
1999.
Ozone
Secretariat,
United
Nations
Environment
Programme,
Adjustments
to
Montreal
Protocol,
at
http://
hq.
unep.
org/
ozone/
Treaties_
and_
Ratification/
montreal_
protocol_
adjustments.
asp.
Decision
IX/
6
was
adopted
during
the
Ninth
Meeting
of
the
Parties
in
1997
in
Montreal
at
the
same
time
as
the
Montreal
Adjustments
(
Decisions
IX/
1
through
IX/
3).
UNEP,
Report
of
the
Ninth
Meeting
of
the
Parties
to
the
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer,
UNEP/
OzL.
Pro.
9/
12
24­
44
(
1997),
at
http://
hq.
unep.
org/
ozone/
Meeting_
Documents/
mop/
09mop/
9mop­
12.
e.
pdf.
As
explained
below,
the
Montreal
Adjustments
authorize
the
Parties
to
"
decide"
upon
critical
use
exemptions,
and
Decision
IX/
6,
adopted
concurrently,
supplies
the
"
criteria"
for
those
exemptions.

2
Protection
of
Stratospheric
Ozone:
Process
for
Exempting
Critical
Uses
from
the
Phaseout
of
Methyl
Bromide,
69
Fed.
Reg.
76,982
(
December
23,
2004)
(
hereinafter
"
2005
exemption
rule").
[
JA
39].
2
begin,
the
1990
amendments
to
the
Act
incorporate
the
entire
Montreal
Protocol,
including
"
adjustments
adopted
by
Parties
thereto."
CAA
§
601(
9),
42
U.
S.
C.
§
7671(
9);
see
also
CAA
§

614(
b),
42
U.
S.
C.
§
7671m(
b).
Moreover,
the
same
amendments
forbid
EPA
or
a
court
from
"
constru[
ing],
interpret[
ing],
or
appl[
ying]"
the
Act's
terms
"
to
abrogate
the
responsibilities
and
obligations
of
the
United
States
to
implement
fully
the
provisions
of
the
 
Protocol."
CAA
§

614(
b),
42
U.
S.
C.
§
7671m(
b).

Even
clearer
and
more
relevant
than
these
general
incorporation
provisions
are
specific
amendments
relating
to
methyl
bromide
that
were
added
to
the
Clean
Air
Act
eight
years
later,
in
1998.
These
amendments
were
enacted
shortly
after
the
adoption
in
1997
of
both
the
Protocol
adjustment
that
established
the
current
methyl
bromide
phaseout
requirements3
and
the
accompanying
Decision
IX/
6
setting
forth
the
criteria
for
critical
use
exemptions.
The
1998
Clean
Air
Act
amendments,
contained
in
Section
764
of
the
1999
Omnibus
Consolidated
and
Emergency
Supplemental
Appropriations
Act,
Pub.
L.
105­
277
(
Oct.
21,
1998),
4
and
codified
in
Section
604
of
the
Clean
Air
Act,
42
U.
S.
C.
§
7671c,
authorize
EPA
to
provide
exemptions
for
critical
uses,
but
that
exemption
authority
is
strictly
limited:
EPA
may
grant
exemptions
only
"
in
3
Those
requirements
are
laid
out
in
Article
2H,
¶
5.
The
enforceability
and
cognizability
of
that
paragraph
are
not
themselves
doubt.
In
September
1997,
at
their
Ninth
Meeting,
the
Parties
adopted
the
paragraph
as
an
adjustment
to
the
Protocol.
UNEP,
Report
of
the
Ninth
Meeting
of
the
Parties
to
the
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer,
UNEP/
OzL.
Pro.
9/
12
25
(
1997),
at
http://
hq.
unep.
org/
ozone/
Meeting_
Documents/
mop/
09mop/
9mop­
12.
e.
pdf
(
agreeing,
in
Decision
IX/
3,
"[
t]
o
adopt,
in
accordance
with
the
procedure
laid
down
in
paragraph
9
of
Article
2
of
the
Montreal
Protocol
and
on
the
basis
of
the
assessments
made
pursuant
to
Article
6
of
the
Protocol,
the
adjustments
and
reductions
of
production
and
consumption
of
[
methyl
bromide],
as
set
out
in
annex
III
to
the
report
of
the
Ninth
Meeting
of
the
Parties");
id.
at
Annex
III
(
laying
out
the
text
of
the
adjustments,
including
Article
2H,
¶
5).
Moreover,
as
the
Court
noted
during
oral
argument,
Clean
Air
Act
section
601(
9)
makes
clear
that
Congress
considers
such
adjustments
to
be
enforceable
Protocol
provisions.
42
U.
S.
C.
§
7671(
9)
(
defining
the
Montreal
Protocol
to
"
includ[
e]
adjustments
adopted
by
the
Parties
thereto").

4
At
oral
argument,
Petitioner's
counsel
mistakenly
stated
that
these
amendments
were
included
in
a
farm
bill.
As
noted
above,
they
actually
were
passed
in
1998
as
part
of
the
1999
Omnibus
Consolidated
and
Emergency
Supplemental
Appropriations
Act.
Counsel
was
correct,
however,
that
there
is
no
legislative
history
elaborating
on
these
provisions.
3
accordance
with"
the
Protocol's
methyl
bromide
"
phaseout
schedule
 
as
in
effect
on
October
21,
1998,"
and
only
"[
t]
o
the
extent
consistent
with
the
Montreal
Protocol":

Section
604(
h):
Methyl
bromide.
The
Administrator
shall
promulgate
rules
for
reductions
in,
and
terminate
the
production,
importation,
and
consumption
of,
methyl
bromide
under
a
schedule
that
is
in
accordance
with,
but
not
more
stringent
than,
the
phaseout
schedule
of
the
Montreal
Protocol
Treaty
as
in
effect
on
October
21,
1998.
42
U.
S.
C.
§
7671c(
h)
(
emphasis
added).

Section
604(
d)(
6):
Critical
uses.
To
the
extent
consistent
with
the
Montreal
Protocol,
the
Administrator,
after
notice
and
the
opportunity
for
public
comment,
 
may
exempt
the
production,
importation,
and
consumption
of
methyl
bromide
for
critical
uses.
42
U.
S.
C.
§
7671c(
d)(
6)
(
emphasis
added).

In
short,
the
Clean
Air
Act
incorporated
the
Protocol's
1997
methyl
bromide
provisions.

Accordingly,
the
Court
unquestionably
has
authority
to
review
and
decide
whether
the
2005
exemption
rule
is
consistent
with
those
provisions.

II.
The
1997
Protocol
Adjustment
Prohibits
Post­
2004
Production
or
Consumption
of
Methyl
Bromide
Unless
Authorized
by
a
Decision
of
the
Parties.

As
Petitioner
noted
in
its
opening
brief,
the
Montreal
Protocol
"
bans
post­
2004
production
or
consumption
of
methyl
bromide
unless
authorized
by
a
Decision"
of
the
Parties.

Pet.
Op.
Br.
at
25
(
emphasis
added).
Specifically,
under
the
1997
Protocol
adjustment:

Each
Party
shall
ensure
that
for
the
twelve­
month
period
commencing
on
1
January
2005,
and
in
each
twelve­
month
period
thereafter,
its
calculated
level
of
consumption
of
[
methyl
bromide]
does
not
exceed
zero.
Each
Party
 
shall,
for
the
same
periods,
ensure
that
its
calculated
level
of
production
of
[
methyl
bromide]
does
not
exceed
zero.
This
paragraph
will
apply
save
to
the
extent
that
the
Parties
decide
to
permit
the
level
of
production
or
consumption
that
is
necessary
to
satisfy
uses
agreed
by
them
to
be
critical
uses.
Montreal
Protocol
Art.
2H,
¶
5
[
JA
190]
(
emphasis
added).

In
other
words,
consistency
with
the
Protocol
allows
only
two
outcomes:
zero
production
or
consumption
after
2004,
or
whatever
level
of
production
or
consumption
the
Parties
"
decide
to
permit"
for
agreed
critical
uses.
Id
(
emphasis
added).
4
III.
EPA's
2005
Exemption
Rule
Violates
the
Clean
Air
Act
Unless
It
Complies
with
the
Conditions
in
the
Protocol
Parties'
Critical
Use
Decisions.

It
follows,
then,
that
EPA's
exemptions
must
be
consistent
with
the
Parties'
exemption
Decisions,
and
that
this
Court
can
and
must
take
cognizance
of
those
Decisions
when
reviewing
EPA's
rule.
Specifically,
Clean
Air
Act
section
604(
d)(
6)
authorizes
EPA
to
issue
production
or
consumption
exemptions
only
if
those
exemptions
are
"
consistent"
with
the
Montreal
Protocol,

and
the
Protocol
allows
exemptions
only
"
to
the
extent
that"
the
Parties
"
decide"
to
permit
them.

Montreal
Protocol
Art.
2H,
¶
5
[
JA
190].
Therefore,
under
the
Act,
EPA
has
no
authority
to
issue
exemptions
unless
the
agency
complies
with
the
relevant
Decisions
of
the
Parties
 
that
is,
as
relevant
here,
Decisions
IX/
6
and
Ex.
I/
3.
In
turn,
those
two
Decisions
are
cognizable
in
this
Court
because
they
define
the
scope
of
EPA's
Clean
Air
Act
authority.

The
only
remaining
question
is
whether,
as
counsel
for
EPA
tentatively
suggested
at
oral
argument,
EPA
may
pick
and
choose
which
parts
of
the
Parties'
Decisions
to
follow,
and
which
parts
to
ignore.
Counsel
appeared
to
suggest
that
while
EPA
must
heed
paragraph
1
of
Decision
Ex.
I/
3,
which
sets
the
maximum
levels
of
2005
production
and
consumption
and
identifies
the
crops
or
other
applications
that
are
deemed
"
critical
uses,"
the
agency
is
free
to
ignore
the
stockpile
and
other
conditions
imposed
in
paragraph
5
of
the
same
Decision.
This
partial
compliance
argument
is
absurd.
The
Parties
did
not
agree
to
paragraph
1
in
isolation,
they
adopted
paragraph
1
subject
to
paragraph
5.
Decision
Ex.
I/
3
would
have
an
entirely
different
meaning
without
paragraph
5.
Under
Clean
Air
Act
section
604(
d)(
6),
EPA
has
no
discretion
to
refashion
the
Parties'
Decision
by
disregarding
paragraph
5
and
the
conditions
it
imposes.

In
sum,
under
Section
604(
d)(
6)
of
the
Clean
Air
Act,
EPA
may
allow
post­
2004
production
and
consumption
of
methyl
bromide
only
"
to
the
extent
consistent
with"
the
Parties'

exemption
Decisions
 
that
is,
Decisions
IX/
6
and
Ex.
I/
3.
The
Clean
Air
Act
itself
makes
the
5
terms
of
those
Decisions
binding
on
the
agency,
and
this
Court
has
eminent
authority
to
ensure
that
the
agency's
actions
conform
to
federal
law.

CONCLUSION
For
the
reasons
stated
above,
the
terms
of
the
Montreal
Protocol
Parties'
Decisions
constrain
EPA's
federal
statutory
authority
to
exempt
post­
2004
production,
importation,
and
consumption
of
methyl
bromide
for
critical
uses.
As
such,
those
terms
are
both
binding
on
the
Agency
and
enforceable
by
this
Court.
Accordingly,
Petitioner
respectfully
requests
that
the
Court
grant
its
petition
and
enter
the
relief
sought
in
its
opening
brief.

Respectfully
submitted,

___________________
David
D.
Doniger
(
D.
C.
Bar
No.
305383)
Amanda
C.
Leiter
Natural
Resources
Defense
Council
1200
New
York
Ave.,
N.
W.,
Suite
400
Washington,
D.
C.
20005
(
202)
289­
6868
Attorneys
for
Natural
Resources
Defense
Council
DATED:
November
7,
2005.
6
CERTIFICATE
OF
SERVICE
I
hereby
certify
that
two
copies
of
the
foregoing
Supplemental
Brief
for
Petitioner
have
been
served
by
hand
this
7th
day
of
November
2005,
upon
the
following:

Mr.
Steven
E.
Rusak
U.
S.
Department
of
Justice
Environment
and
Natural
Resources
Division
Environmental
Defense
Section
Post
Office
Box
23986
Washington,
DC
20026­
3986
steve.
rusak@
usdoj.
gov
For
US
EPA,
et
al.
Diane
E.
McConkey
Air
and
Radiation
Office
(
2344A)
Office
of
General
Counsel
U.
S.
Environmental
Protection
Agency
1101A
EPA
Headquarters
Ariel
Rios
Building
1200
Pennsylvania
Avenue,
NW
Washington,
DC
20004
mcconkey.
diane@
epa.
gov
For
US
EPA,
et
al.

Tracy
Heinzman
David
B.
Weinberg
Wiley
Rein
&
Fielding
LLP
1776
K
Street,
NW
Washington,
DC
20006
theinzman@
wrf.
com
For
the
Methyl
Bromide
Industry
Panel
of
the
American
Chemistry
Council
__________________________
David
D.
Doniger
Natural
Resources
Defense
Council
RELEVANT
STATUTORY
SECTIONS
Clean
Air
Act
§
601(
9),
42
U.
S.
C.
§
7671(
9)
..............................................................................
2
Relevant
portions
of
Clean
Air
Act
§
604,
42
U.
S.
C.
§
7671c......................................................................................
3
Clean
Air
Act
§
614(
b),
42
U.
S.
C.
§
7671m(
b)
...........................................................................
4
2
CLEAN
AIR
ACT
§
601(
9)

42
U.
S.
C.
§
7671(
9).
Montreal
Protocol
The
terms
"
Montreal
Protocol"
and
"
the
Protocol"
mean
the
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer,
a
protocol
to
the
Vienna
Convention
for
the
Protection
of
the
Ozone
Layer,
including
adjustments
adopted
by
Parties
thereto
and
amendments
that
have
entered
into
force.
3
RELEVANT
PORTIONS
OF
CLEAN
AIR
ACT
§
604
42
U.
S.
C.
§
7671c(
d)(
6).
Critical
uses
To
the
extent
consistent
with
the
Montreal
Protocol,
the
Administrator,
after
notice
and
the
opportunity
for
public
comment,
and
after
consultation
with
other
departments
or
instrumentalities
of
the
Federal
Government
having
regulatory
authority
related
to
methyl
bromide,
including
the
Secretary
of
Agriculture,
may
exempt
the
production,
importation,
and
consumption
of
methyl
bromide
for
critical
uses.

42
U.
S.
C.
§
7671c(
h).
Methyl
bromide
Notwithstanding
subsections
(
b)
and
(
d)
of
this
section,
the
Administrator
shall
not
terminate
production
of
methyl
bromide
prior
to
January
1,
2005.
The
Administrator
shall
promulgate
rules
for
reductions
in,
and
terminate
the
production,
importation,
and
consumption
of,
methyl
bromide
under
a
schedule
that
is
in
accordance
with,
but
not
more
stringent
than,
the
phaseout
schedule
of
the
Montreal
Protocol
Treaty
as
in
effect
on
October
21,
1998.
4
CLEAN
AIR
ACT
§
614(
b)

42
U.
S.
C.
§
7671m(
b).
Montreal
Protocol
This
subchapter
as
added
by
the
Clean
Air
act
Amendments
of
1990
shall
be
construed,
interpreted,
and
applied
as
a
supplement
to
the
terms
and
conditions
of
the
Montreal
Protocol,
as
provided
in
Article
2,
paragraph
11
thereof,
and
shall
not
be
construed,
interpreted,
or
applied
to
abrogate
the
responsibilities
or
obligations
of
the
United
States
to
implement
fully
the
provisions
of
the
Montreal
Protocol.
In
the
case
of
conflict
between
any
provision
of
this
subchapter
and
any
provision
of
the
Montreal
Protocol,
the
more
stringent
provision
shall
govern.
Nothing
in
this
subchapter
shall
be
construed,
interpreted,
or
applied
to
affect
the
authority
or
responsibility
of
the
Administrator
to
implement
Article
4
of
the
Montreal
Protocol
with
other
appropriate
agencies.
