Whether the AIM Act's delegation of unbounded discretion to the EPA to allocate hydrofluorocarbon allowances constitutes an unconstitutional legislative delegation in violation of the nondelegation doctrine

No question identified. : 2. This case concerns who must decide which private parties are permitted to participate in the multibillion-dollar refrigerant industry: the people’s elected representatives, or unaccountable bureaucrats in an administrative agency. 3. Choice Refrigerants (“Choice”) is a small business that manufactures refrigerants, including a patented blend of hydrofluorocarbons (“HFCs”). In 2020, Congress passed the American Innovation and Manufacturing Act of 2020 “AIM Act”) to facilitate the phasedown of HFCs. 42 U.S.C. § 7675. Congress established a cap-and-trade framework that would gradually limit the amount of HFCs that can be produced or imported in phases and then allocate those capped HFCs to market participant through “allowances.” These allowances are the only way for parties to permissibly participate in the HFCs market. The AIM Act tasked the Environmental Protection Agency (“EPA”) with administering the cap-and-trade program. But while the statute provides meaningful guidance on how the EPA should determine the HFCs cap for each phase, it gives no instruction on how the EPA must allocate the allowances. The Act simply provides that the EPA “shall issue a final rule ... phasing down the production of [HFCs] in the United States through an allowance allocation and trading program in accordance with this section.” Jd. §7675(e)(3)(A). Put differently, the AIM Act contains no guidance, instructions, or limits on how the EPA should decide which parties are allowed to participate in the HFCs market. 4. In 2021, the EPA created a framework for implementing the AIM Act that would cover the issuance of allowances for a period of two years. Phasedown of Hydrofluorocarbons: Establishing the Allowance Allocation and Trading Program Under the American Innovation and Manufacturing Act, 86 Fed. Reg. 55,116, 55,118 (Oct. 5, 2021). Recognizing its “considerable” and “significant” discretion in assigning allowances (a considerable and significant understatement, given that the statute provides no principle to guide the EPA whatsoever), the EPA ultimately opted to assign allowances based on companies’ historic HFCs production or consumption. Id. at 55,145. The 2021 framework only covered two years, so the EPA later adopted a new framework that would cover the 2024-2028 period. Phasedown of Hydrofluorocarbons: Allowance Allocation Methodology for 2024 and Later Years, 87 Fed. Reg. 66,372, 66,377-78 (Nov. 3, 2022). The new framework continued to assign allowances based on historic usage. As a result of this approach, Choice received fewer allowances than its pre-AIM Act market share warranted: about 30% fewer allowances than if EPA had chosen a system that reflected actual market share. See 2024 Allocation Notice, 88 Fed. Reg. 72,060, 72,063 (Oct. 19, 2023). Choice timely filed a petition for review of this 2024 framework. 5. The Constitution gives Congress, and Congress alone, the power to legislate. U.S. Const. art. I, §1. It is well established that “[a]eccompanying that assignment of power to Congress is a bar on its further delegation: Legislative power, [the Supreme Court has] held, belongs to the legislative branch, and to no other.” Fed. Commc’ns Comm’n v. Consumers’ Rsch., 606 U.S. 656, 672 (2025) (citing Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472, (2001)). Thus, Congress cannot delegate to administrative agencies the “power to make the law, which necessarily involves a discretion as to what it shall be.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928). 6. Yet that is precisely what the AIM Act does. Determining the right of industry stakeholders to participate in the HFC market (and to what extent) is a quintessential legislative question. See INS v. Chadha, 462 U.S. 919, 952 (1983) (legislative action “ha[s] the purpose and effect of altering the legal rights, duties, and relations of persons”). Thus, because the AIM Act grants the EPA unbounded discretion in issuing all