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Published online by Cambridge University Press: 27 February 2017
Natural Resources Defense Council v. Environmental Protection Agency. 464 F.3d 1.
United States Court of Appeals for the District of Columbia Circuit, August 29, 2006.
In Natural Resources Defense Councilv. Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit held that certain decisions of the parties acting under the international legal regime to protect the ozone layer are not “law” with which EPA must comply under the Clean Air Act. In dicta, the court suggested that holding the decisions to be “‘law’ would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers” (p. 9).
The purpose of the international ozone regime—in particular, the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances That Deplete the Ozone Layer—is to protect stratospheric ozone, which intercepts harmful ultraviolet radiation from the sun. Unlike oxygen (O2), ozone (O3) is unstable: when a chlorine or bromine compound reaches the stratosphere, it sets off chemical chain reactions that destroy thousands of ozone molecules. As industrial production of such compounds has increased, stratospheric ozone has been depleted, allowing more ultraviolet radiation to reach the Earth, where it causes skin cancer and cataracts, reduces agricultural productivity, and harms the environment. The ozone regime reduces ozone-depleting substances (ODS) in the stratosphere by phasing out their production.
1 464 F.3d 1 (D.C. Cir. 2006).
2 The regime actually restricts production and consumption, but it defines consumption as production plus net imports: “production plus imports minus exports of controlled substances.” Montreal Protocol on Substances That Deplete the Ozone Layer, Art. 1(6), 26 ILM 1550 (1987) [hereinafter Montreal Protocol]. Because the usual meaning of consumption suggests “use,” this note avoids confusion by referring simply to restrictions on production, which should be understood to include restrictions on net imports as well.
3 Human Health Benefits of Stratospheric Ozone Protection 17 (2006) (prepared for Global Programs Division, EPA), at <http://www.epa.gov/ozone/science/AHEFDEC2003D3.pdE=Google Scholar.
4 Vienna Convention for the Protection of the Ozone Layer, 26 ILM 1529 (1987)Google ScholarPubMed [hereinafter Vienna Convention].
5 Montreal Protocol, supra note 2, Art. 2(2), (4).
6 Vienna Convention, supra note 4, Art. 9.
7 Montreal Protocol, supra note 2, Art. 2(9).
8 As incorporated into the Montreal Protocol, the restrictions are in Article 2H. For a version of the Protocol incorporating the amendments and adjustments (Montreal Protocol as amended and adjusted), see UN Environmental Programme, Handbook for the Montreal Protocol on Substances That Deplete the Ozone Layer 3-40 (7th ed. 2006) [hereinafter Handbook], at http://ozone.unep.org/Publications/ Handbooks/MP_Handbook_2006.pdf. The parties have also agreed to impose a ban on developing-country production by 2015. Montreal Protocol as amended and adjusted, Art. 5(8 ter)(d)(iii), in Handbook, supra, at 17.
9 Montreal Protocol as amended and adjusted, Art. 2H(5), in Handbook, supra note 8, at 11.
10 Clean Air Act §§601-617, 42 U.S.C. §§7671-7671q (2000).
11 Decision Ex.I/3, paras. 1, 2, in Handbook, supra note 8, at 138, 138-39.
12 Protection of Stratospheric Ozone: Process for Exempting Critical Uses from the Phaseout of Methyl Bromide, 69 Fed. Reg. 76, 982 (Dec. 23, 2004).Google Scholar
13 Decision Ex.I/3, para. 5, in Handbook, supra note 8, at 139.
14 Decision IX/6, para. (b)(ii), in Handbook, supra note 8, at 136, 136.
15 Clean Air Act §§307(b)(l), (d)(9)(A), 42 U.S.C. §§7607(b)(l), (d)(9)(A) (emphasis added).
16 Natural Resources Def. Council v. EPA, 440 F.3d 476, 481-82, 484 (D.C. Cir. 2006).
17 In the court’s words, “Because the post-ratification agreements of the parties are not ‘law,’ EPA’s rule—even if inconsistent with those agreements—is not in violation of any domestic law within the meaning of the Clean Air Act” (p. 11).
18 An obvious example is a Security Council resolution issued under Chapter VII of the UN Charter. Diggs v. Richardson, 555 F.2d 848, 850 (D.C. Cir. 1976) (even if a Security Council resolution establishes “an international obligation that is binding on the United States,” the resolution “does not confer rights on the citizens of the United States that are enforceable in court in the absence of implementing legislation”).
19 5 U.S.C. §706(2)(A) (2000).
20 E.g., Clean Air Act §614(b), 42 U.S.C. §7671 m(b). The act defines “Montreal Protocol” to include adjustments adopted by the parties. Clean Air Act §601 (9), 42 U.S.C. §7671 (9).
21 A further question, which the court did not reach, is whether a MOP is limited to deciding simply to permit production or not (as the United States argued), or whether it may set conditions that parties must meet in order to receive its permission (which was NRDC’s position).
22 The court said that “[w]e need not confront the ‘serious likelihood that the statute will be held unconstitutional’“ (p. 9).
23 Whitman v. Am. Trucking Ass’ ns, Inc., 531 U.S. 457, 472 (2001).
24 Citing Julian G., Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 Minn. L. Rev. 71 (2000)Google Scholar, and Edward, T. Swaine, The Constitutionality of International Delegations, 104 Colum. L. Rev. 1492 (2004).Google Scholar
25 See Whitman, 531 U.S. 457.
26 The Supreme Court took this approach to a similar issue in Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006).Google Scholar