## Facts

- The Montreal Protocol requires participating nations to phase out listed ozone-depleting substances, including methyl bromide, while allowing certain “critical use” exemptions.
- The Clean Air Act authorizes EPA to regulate and phase out ozone-depleting substances and permits methyl bromide production and consumption only to an extent “consistent with” the Protocol.
- EPA issued a final rule establishing a process and allowances for methyl bromide “critical use” exemptions.
- NRDC petitioned for review, arguing EPA’s rule allowed higher production and consumption than permitted by a decision adopted by the Montreal Protocol’s Meeting of the Parties (MOP).
- NRDC contended that, because the Clean Air Act requires EPA to act “consistent with” the Protocol, EPA was legally required to comply with MOP decisions as binding constraints.
- The court initially dismissed for lack of standing, then granted rehearing, withdrew its earlier opinion, found standing on the supplemented record, and reached the merits.

## Issues

1. Whether NRDC had Article III standing to challenge EPA’s methyl bromide exemption rule.
2. Whether the Clean Air Act’s requirement that EPA act “consistent with” the Montreal Protocol makes MOP decisions binding domestic “law” that EPA must follow.

## Decision

- NRDC had standing based on alleged environmental and health harms from increased methyl bromide emissions, traceable to the rule and partially redressable by vacatur or revision.
- The court denied NRDC’s petition on the merits and upheld EPA’s rule.
- The court held that MOP decisions are not binding domestic “law” that EPA must follow under the Clean Air Act’s “consistent with” language.
- The court reasoned that EPA must comply with the Protocol as incorporated by statute, but subsequent MOP decisions do not independently constrain EPA’s statutory authority.
- The court noted that treating MOP decisions as binding domestic law would raise serious constitutional concerns, including nondelegation and separation-of-powers problems.

## Legal Principles

- Article III standing may be established where a challenged rule plausibly increases harmful emissions and judicial relief could reduce those emissions and partially redress alleged injuries.
- A ratified treaty referenced in a statute may guide and constrain agency action to the extent incorporated, but not every subsequent decision by treaty parties automatically becomes binding domestic law.
- Statutory language requiring action “consistent with” a treaty generally requires consistency with the treaty’s obligations as adopted and implemented in U.S. law, not automatic incorporation of later conference-of-the-parties decisions.
- Courts may interpret statutes to avoid serious constitutional questions, including interpretations that would effectively allow international bodies to make binding domestic law without constitutionally required lawmaking procedures.

## Conclusion

The D.C. Circuit held that NRDC had standing but rejected its challenge to EPA’s methyl bromide “critical use” rule, concluding that decisions of the Montreal Protocol’s Meeting of the Parties are not binding domestic law under the Clean Air Act’s requirement of consistency with the Protocol.


Nat. Res. Def. Council v. EPA, 464 F.3d 1 (D.C. Cir. 2006)