Amicus Brief: RMS of Georgia v. EPA

Choice Refrigerants is a small business based in Georgia that produces a patented blend of hydrofluorocarbons (HFCs). Under the 2020’s American Innovation and Manufacturing Act (AIM Act), Congress required an 85% reduction in HFC production and consumption by 2036 and tasked the EPA with deciding which companies can produce HFCs and how much. The problem is, Congress gave no guidance to the EPA on how to structure this multi-billion-dollar market. The EPA could allocate allowances to firms that demonstrate the best DEI practices, or to firms that have the best greenhouse gas policies. Whatever it wants, because the AIM Act gives no directions. 

But Congress can’t constitutionally give away its power to legislate. This is called the “nondelegation doctrine,” and everyone thinks it exists—for example, Congress couldn’t choose a group of five people, designate that they are the Congress now, and then go home and rest. Yet the Supreme Court hasn’t struck down anything as an “over-delegation” for almost 100 years. Thus, we have our modern administrative state, where agencies are delegated immense power from Congress to essentially make the laws. 

Choice Refrigerants sued, arguing that the complete lack of guidance from Congress for HFC allowances is an unconstitutional over delegation. They lost in the D.C. Circuit, which smuggled in language from a different statute to hold that the AIM Act has some guidelines. Now on petition for Supreme Court review, the Manhattan Institute has filed a brief in support. We argue that Congress needs to do its job, at least more than delegating to the EPA total freedom in how to carve up a market. The nondelegation doctrine is a core part of the Constitution in both history and theory. Now is the time for the Supreme Court to clearly say whether the nondelegation doctrine still exists and to clarify its meaning. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

With thanks to associate Noam Josse.