Washington, D.C., June 02, 2026 (GLOBE NEWSWIRE) — The New Civil Liberties Alliance filed its reply brief today urging the U.S. Supreme Court to hear its Choice Refrigerants v. EPA lawsuit, which affords the Justices an ideal chance to enforce or replace the Nondelegation Doctrine’s lax “intelligible-principle” test. Joined by acclaimed Supreme Court litigators Erin Murphy, Paul Clement, and Erin Hawley, NCLA asks the Justices to set aside a portion of the American Innovation and Manufacturing Act of 2020. The unconstitutional statute fails to supply any intelligible principle directing how the Environmental Protection Agency must allocate 98% of the strictly limited allowances the agency gives to produce the hydrofluorocarbon (HFC) compounds used in refrigeration, industrial processes, and military and medical applications.
Even under the Supreme Court’s current Nondelegation Doctrine, Congress cannot empower EPA to control market share for these critical products without providing an “intelligible principle.” The U.S. Court of Appeals for the D.C. Circuit implicitly recognized in this case that the AIM Act itself lacked any such principle, but it wrongly transplanted principles found in a separate act also administered by EPA. The D.C. Circuit grafted the Clean Air Act’s allocation rules for the cap-and-trade phaseout of substances that deplete the ozone to the AIM Act and applied them to phasing down HFCs, which do not deplete the ozone.
However, neither a court nor an agency can constitutionally supply an intelligible principle Congress did not. Doing so violates the Vesting Clause of Article I of the Constitution, which says “All legislative Powers herein granted shall be vested in a Congress of the United States”—not in agencies or courts. In Choice, EPA admits it is governed by only a timeline and a target objective of reducing the market by 85%. Hence, this case provides the perfect opportunity for the Supreme Court to make clear the Vesting Clause requires courts to stop Congress from giving its lawmaking duties away, which often harms productive Americans and their businesses.
Left to its own devices by the AIM Act, EPA made inexplicable policy decisions that decimated the market share of NCLA’s client, the small Georgia-based HFC producer, Choice Refrigerants. Instead of properly granting Choice Refrigerants the allowances attributable to its patented products, EPA relied on Biden-era Executive Orders to set aside some allowances for new market entrants. In picking winners and losers, EPA also oddly allocated some allowances to Choice’s former import agent and to a Chinese-owned company that infringed Choice’s patent and engaged in illegal dumping into the U.S. market. EPA ultimately granted Choice far fewer allowances than the company needed to maintain the market share it had worked for decades to create.
NCLA released the following statements:
“If Congress is going to mandate artificial and increasing scarcity in a market, the Constitution requires that Congress finish its legislative duty and identify who suffers, to what extent, and why. Anything short of that unlawfully vests legislative power in a politically unaccountable bureaucracy.”
— Zhonette Brown, General Counsel and Senior Litigation Counsel, NCLA
“Article I of the Constitution forbids Congress from divesting its legislative power to Article II bureaucrats at the EPA. And yet the AIM Act did exactly that. So, the Supreme Court must either step in and decide that the current ‘nondelegation’ test forbids this divestment or else it must fix the test.”
— Mark Chenoweth, President and Chief Legal Officer, NCLA
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
Joe Martyak New Civil Liberties Alliance 703-403-1111 joe.martyak@ncla.legal
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