No. 10-1347 (consolidated with Nos. 10-1348, 10-1349, 10-1350)

United States Court of Appeals for the D.C. Circuit

HONEYWELL INTERNATIONAL INC. AND E. I. DU PONT DE NEMOURS AND COMPANY,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY and LISA P. JACKSON, ADMINISTRATOR,

Respondents.

On Petitions for Review from the United States

Environmental Protection Agency

INTERVENORS’ CORRECTED JOINT OPPOSITION TO THE

JOINT MOTION TO HOLD THE CASE IN ABEYANCE

Pursuant to Federal Rule of Appellate Procedure 27 and Circuit Rule 27,

Intervenors Arkema Inc. (“Arkema”), Solvay Fluorides, LLC, and Solvay Solexis,

Inc. (collectively, “Solvay”) respectfully oppose the joint motion (“Motion”) of

Movants Honeywell International Inc. (“Honeywell”), E. I. du Pont de Nemours

and Company (“DuPont”), and Environmental Protection Agency (“EPA”) to hold

the case in abeyance. In support of their opposition, Intervenors state as follows:

1. There is no good reason to delay these proceedings. In Arkema Inc. v.

EPA, 618 F.3d 1 (D.C. Cir. 2010), this Court vacated an EPA regulation allocating

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allowances for the production and consumption of hydrochlorofluorocarbons

(“HCFCs”) from 2010 to 2014. That regulation significantly and unlawfully

reduces Arkema’s and Solvay’s allowances of the refrigerant HCFC-22 (and hands

the balance to their competitors). Arkema and Solvay sought a partial stay of the

regulation as well as expedited consideration in this Court, estimating their losses

in 2010 alone at $44 million and $15 million respectively. See Arkema Mot. for

Leave to Intervene, Ex. 1 at 9; Solvay Mot. for Leave to Intervene, Ex. 1 ¶ 18. The

Court granted expedited review (with EPA’s concurrence), then vacated the rule in

part and called for “prompt resolution” on remand (Arkema, 618 F.3d at 10).

2. As the Motion acknowledges, the instant petitions in essence

challenge the reasoning and remedy of Arkema, not EPA actions that took place

two years earlier. Mot. 2-3. By holding the case in abeyance, Movants would

postpone this collateral attack on Arkema until after the mandate in that case has

issued. Doing so would both frustrate Arkema’s demand for quick action and

produce more of the same uncertainty and “significant market disruptions” that

Petitioners previously have decried. DuPont Mot. for Leave to File Mot. to

Intervene Out of Time 4, Arkema, 618 F.3d 1 (No. 09-1318). The Court should

resolve this case expeditiously and allow the industry to move forward.

3. The Motion is premised on the idea that the panel decision in Arkema

might be overturned en banc. As this Court’s Internal Operating Procedures

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explain, however, rehearing en banc is exceptional relief that is “rarely granted.”

D.C. Cir. IOP XIII.B.2, at 56. If EPA’s rehearing petition is denied—as almost all

are—the Motion will have done nothing except delay the proceedings in this case

by several weeks. The Motion can make a difference only if the Court is prepared

to wait not only for a grant of rehearing in Arkema but also for briefing, argument,

and a decision by the full Court in Movants’ favor. If that event ever came, it

would be many months away. And should the full Court uphold the decision in

Arkema, its mandate would issue under a cloud, because these petitions

challenging Arkema’s remedy would still have to be resolved.

4. This Court will sometimes hold a case in abeyance when “other

pending proceedings * * * may affect the outcome.” Basardh v. Gates, 545 F. 3d

1068, 1069 (D.C. Cir. 2008) (per curiam). But Petitioners’ claims are doomed

regardless of what happens in Arkema, because they lack a colorable claim to

jurisdiction. While the petitions ostensibly challenge Intervenors’ transfers of

allowances in Spring 2008 (see, e.g., Pet. for Review), the Clean Air Act

establishes a jurisdictional 60-day window for review (42 U.S.C. § 7607(b)(1)).

The Court therefore can resolve this case on Intervenors’ motion to dismiss—filed

simultaneously with this Opposition—long before any en banc proceedings would

conclude in Arkema. (Or the Court could deny the Motion without prejudice to a

renewed request should the case survive dismissal.)

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5. In reviewing an abeyance motion, this Court will also consider the

traditional stay factors. Basardh, 545 F.3d at 1069 (citing Va. Petroleum Jobbers

Ass’n v. FPC (Jobbers), 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam)). These

factors do not support further delay.

6. Movants cannot show a likelihood that their arguments will succeed

on the merits. See Basardh, 545 F.3d at 1069; Jobbers, 259 F.2d at 925. Even

assuming that this Court reaches the merits (and does not dismiss for lack of

jurisdiction), Arkema is the law of the Circuit (see Ass’n of Civilian Technicians v.

FLRA, 756 F.2d 172, 176 (D.C. Cir. 1985)), and by Movants’ own representation,

these petitions will go forward only if Arkema stands (Mot. 3). To the extent that

Movants challenge Arkema’s reasoning or remedy, their arguments cannot be

presented in this collateral proceeding. Any arguments in conflict with Arkema

necessarily have been rejected by that decision, which is binding on this panel.

Moreover, Petitioners’ “vested rights” challenge to Arkema’s remedy is meritless;

an agency that has lost in court can order whatever remedy is necessary to “put[]

the parties in the position they would have been in had the error not been made.”

AT&T Corp. v. FCC, 448 F.3d 426, 433 (D.C. Cir. 2006) (internal quotation marks

omitted); see also Verizon Tel. Cos. v. FCC, 269 F.3d 1098, 1111 (D.C. Cir. 2001).

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7. Movants also cannot show irreparable injury from litigating the case

on the normal schedule. Their only complaints concern the “time and energy

necessarily expended in the absence of a stay.” Jobbers, 259 F.2d at 925.

8. On the other hand, granting the Motion would “substantially harm

other parties interested in the proceedings” (id.)—not only the Intervenors, but the

entire industry. Manufacturers and importers of HCFCs cannot plan for future

years while the regulatory framework remains in limbo. As Intervenors have

explained previously, the unlawful rule challenged in Arkema would cost them

almost $300 million over a five-year period, one year of which already has elapsed.

See Arkema Mot. for Leave to Intervene 4; Solvay Mot. for Leave to Intervene 4.

Further delay in correcting allocations for 2010 and 2011 (and, at this rate, even

2012) will require greater adjustments in future years to make Intervenors whole.

9. Finally, the public interest in a manageable system of HCFC

regulation is served not by continued uncertainty, but rather by “expediting

administrative or judicial action” (Jobbers, 259 F.2d at 925) and by the “prompt

resolution” that Arkema ordered (618 F.3d at 10). If these petitions cannot be

litigated until a mandate in Arkema issues, EPA will face the difficult task of

implementing that mandate while this collateral challenge to Arkema’s remedy

remains pending. It makes far more sense to dispose of Petitioners’ challenge now.

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The Motion to hold the case in abeyance should be denied. Alternatively,

the Court should deny the Motion without prejudice to a renewed request after any

dispositive motions are decided.

Dated: January 11, 2011

/s/ David M. Williamson

(with permission)

David M. Williamson

Gia V. Cribbs

ANDREWS KURTH LLP

1350 I Street, N.W., Suite 1100

Washington, DC 20005

(202) 662-2700

Of Counsel:

Carlos R. Escobar

SOLVAY NORTH AMERICA, LLC

3333 Richmond Avenue

Houston, TX 77098

Counsel for Solvay Fluorides LLC and

Solvay Solexis, Inc.

Respectfully submitted,

/s/ Dan Himmelfarb

Dan Himmelfarb

John S. Hahn

Roger W. Patrick

Stephen E. Sachs

MAYER BROWN LLP

1999 K Street, N.W.

Washington, DC 20006

(202) 263-3000

Of Counsel:

William J. Hamel

ARKEMA INC.

2000 Market Street

Philadelphia, PA 19103

Counsel for Arkema Inc.

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CERTIFICATE OF SERVICE

I hereby certify, pursuant to Fed. R. App. P. 25(d), that on January 11, 2011,

the foregoing was electronically filed with the Clerk of the Court using the

CM/ECF system, which will send a notification to the attorneys of record in this

matter who are registered with the Court’s CM/ECF system.

I also certify that on January 11, 2011, the foregoing was served by U.S.

Mail, first-class delivery, on:

Richard E. Ayres

Ayres Law Group

1615 L Street, NW

Suite 650

Washington, DC 20036

Dated: January 11, 2011 /s/ Dan Himmelfarb

Dan Himmelfarb

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