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

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

H ONEYWELL INTERNATIONAL INC
. AND E. I. DU P ONT DE NEMOURS AND C OMPANY , Petitioners , v. ENVIRONMENTAL PROTECTION A GENCY and LISA P. J ACKSON , A DMINISTRATOR , Respondents

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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 S OLVAY N ORTH 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 M AYER B ROWN 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. Case: 10-1347 Document: 1287361 Filed: 01/11/2011 Page: 6CERTIFICATE 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 Case: 10-1347 Document: 1287361 Filed: 01/11/2011 Page: 7