[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14213

____________________

RMS OF GEORGIA, LLC, 

d.b.a. Choice Refrigerants, 

Petitioner,

versus

U.S. ENVIRONMENTAL PROTECTION AGENCY, 

ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION 

AGENCY, 

Respondents.

____________________

Petition for Review of a Decision of the

Environmental Protection Agency

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2 Opinion of the Court 21-14213

Agency No. EPA-2021-21942-55841

____________________

Before WILSON, BRASHER, and MARCUS, Circuit Judges.

WILSON, Circuit Judge:

Congress gave the Courts of Appeals jurisdiction to hear petitions for review of Environmental Protection Agency (EPA) actions under the Clean Air Act. 42 U.S.C. § 7607(b)(1). But it mandated that petitions for review of “nationally applicable” actions be 

heard in the Court of Appeals for the District of Columbia Circuit

(D.C. Circuit), while petitions for review of “locally or regionally 

applicable” actions should be heard in the regional circuit Courts

of Appeals. Id. Our task today is to determine which type of action 

this petition challenges. 

Petitioner RMS of Georgia d/b/a Choice Refrigerants 

(RMS) challenges the EPA’s allocation of permits to consume hydrofluorocarbons—a type of chemical refrigerant—under the 

American Innovation and Manufacturing Act. Pub. L. No. 116-260, 

Div. S., § 103, 134 Stat. 1182, 2255–71 (2020) (codified at 42 U.S.C. 

§ 7675). RMS argues that it received fewer permits than it was entitled because the EPA improperly allocated some historic HFC usage to RMS’s competitors. However, because we hold that the 

EPA’s action, was nationally applicable we TRANSFER this petition to the D.C. Circuit for further consideration.

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I. 

The United States has been a site of rapid innovation in the 

field of refrigeration technology since the mid-nineteenth century. 

In the 1840s, Dr. John Gorrie of Apalachicola, Florida invented one 

of the world’s first mechanical refrigeration systems to soothe his 

patients’ malaria-induced fevers in the Florida panhandle. By the 

early 1900s Carrier Engineering of New York was installing similar 

mechanical refrigeration systems to cool enormous auditoriums 

and theaters. While these early machines relied on water and compressed air, these systems gave way to those relying on volatile and 

toxic chemicals such as ammonia. But in 1928, Thomas Midgley 

Jr. at the General Motors Corporation, successfully synthesized the 

first formulations of chlorofluorocarbon (CFC)-based refrigerants, 

commonly known as “Freon.” These chemicals were safer and less 

combustible than their predecessors, and soon dominated the marketplace.1

With this rapid innovation came calls for increased national 

and international oversight. In 1974, F. Sherwood Rowland and 

Mario Molina at the University of California, Irvine proved that the 

emission of CFCs depleted the Earth’s ozone layer, exposing the 

1 See generally Paul Lester, U.S. Dep’t of Energy, History of Air Conditioning

(July 20, 2015), https://www.energy.gov/articles/history-air-conditioning; 

James W. Elkins, Nat’l Oceanic & Atmospheric Admin., Chlorofluorocarbons 

(CFCs), https://gml.noaa.gov/hats/publictn/elkins/cfcs.html (last visited 

Mar. 29, 2023).

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Earth’s surface to harmful UV radiation. So in 1987, the United 

States, together with the international community, signed the 

Montreal Protocol, which mandated the gradual phaseout of CFCs. 

As CFCs were phased out, a new class of chemicals called hydrofluorocarbons (HFCs) took their place. HFCs, unlike CFCs, do not

contribute significantly to ozone layer depletion, making them a 

suitable substitute under the Montreal Protocol. But, while the 

substitution of HFCs protects the ozone layer, it greatly contributes to the risks of climate change as HFCs are a potent greenhouse 

gas. So just as they had decades prior for CFCs, the United States 

and the international community began considering a phaseout of 

HFCs as well. In 2016, they agreed to the Kigali Amendment to 

the Montreal Protocol which requires states parties to the Protocol 

to phasedown HFC usage over the next thirty years.2

While the Kigali Amendment was under consideration, the 

United States Congress took steps in 2020 to address domestic HFC 

usage by passing the American Innovation and Manufacturing Act 

(AIM Act), 42 U.S.C. § 7675. The AIM Act directs the EPA to phase

down the consumption and production of HFCs in the United 

States over the next fifteen years until 2036. In 2036, the Act requires that HFC usage in the United States be capped at 15% of 

2 U.S. Env’t Prot. Agency, Recent International Developments under the 

Montreal Protocol (last updated Sept. 16, 2022), 

https://www.epa.gov/ozone-layer-protection/recent-international-developments-under-montreal-protocol. 

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baseline levels. See 42 U.S.C. § 7675(e)(2)(C). To implement the

phasedown, Congress provided that certain consumption and production activities would require “allowances”—essentially, usage 

permits—and placed a cap on the number of permits available each 

year. See id. §§ 7675(e)(2)(A), (e)(2)(D); see also id. § 7675(b)(2), (3), 

(7) (defining “allowance,” “consumption,” and “produce,” respectively). Over time the cap diminishes by a fixed percentage provided in the Act each year. Id. § 7675(e)(2)(B). The Act also allows 

the firms that receive permits to transfer their permits between one 

another pursuant to regulations promulgated by the EPA. Id. 

§ 7675(g). The Act directs the EPA to conduct appropriate rulemakings to establish “an allowance allocation and trading program” consistent with these requirements. Id. § 7675(e)(3).

This petition concerns the permit allocations made for calendar year 2022, which were issued in October 2021. There are 

two Federal Register notices relevant to this petition. The first was 

a notice of final rulemaking for what is called the “Framework 

Rule,” which sets forth the EPA’s methodology for collecting data 

on historical HFC usage and a formula for calculating the allocation 

of permits. Phasedown of Hydrofluorocarbons: Establishing the 

Allowance Allocation and Trading Program Under the American 

Innovation and Manufacturing Act, 86 Fed. Reg. 55,116 (Oct. 5, 

2021) (codified at 40 C.F.R. § 84.1–84.35) [hereinafter Framework 

Rule]. The second was an “Allocation Notice,” which set forth the 

annual allocations in a series of tables line-by-line, firm-by-firm. 

Phasedown of Hydrofluorocarbons: Notice of 2022 Allowance 

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Allocations for Production and Consumption of Regulated Substances under the American Innovation and Manufacturing Act of 

2020, 86 Fed. Reg. 55,841 (Oct. 7, 2021) [hereinafter Allocation Notice]. 

At a high level, the Framework Rule’s methodology worked 

like this: First, the EPA collected HFC-usage data for the companies involved in the domestic HFC industry. Second, the EPA used

this industry-wide data to calculate the baseline levels of domestic 

HFC-usage. Third, the agency calculated the annual nationwide 

allowance cap by multiplying the baseline level by a target percentage specified by statute. See 42 U.S.C. § 7675(e)(1)(A)–(C), 

(e)(2)(B). At this step, some allowances are removed from the pool

and set aside for application-specific allowances and for allocation 

later in the year. 40 C.F.R. § 84.11(a)(3). Fourth, the EPA identified 

each industry participant’s three highest years of usage for the period 2011–2019 and found the average of these numbers. Id. 

§ 84.11(a)(1). Fifth, the EPA determined each firm’s percentage 

share of the industry by taking that firm’s individual three-year average (step 4) and dividing it by the sum of all firms’ three-year average numbers. Id. § 84.11(a)(2).3 Sixth, the EPA multiplied each 

participant’s percentage by the annual allowance cap (step 3) to determine each firm’s allocation of yearly allowances. Id. 

§ 84.11(a)(4).

3 Forty firms received consumption allowances in 2022.

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In this case, Petitioner-RMS, a Georgia-based manufacturer 

of an HFC blend called R-421A, or “Choice,” challenges its allocation of HFC consumption allowances for calendar year 2022.4 On 

the merits, RMS brings an arbitrary and capricious challenge alleging that two other entities—here, named Companies A and B—received credit for historical usage that should have been credited to 

RMS. Specifically, RMS alleges that Company A was merely its 

shipping agent for certain HFCs, and that RMS should qualify as 

the “importer” entitled to credit for this historical usage under the

regulations. See 40 C.F.R. § 84.3. As to Company B, RMS alleges 

that Company B infringed its patent on R-421A, and thus RMS 

should receive credit for the usage attributable to that infringement. While the merits of these arguments turn on different legal 

principles, they have the same practical effect for RMS: Because 

the EPA allegedly short-changed RMS in these instances, RMS’s

three-year average (step 4) was lower than it should have been.

* * *

To aid our discussion, we provide a visual representation of 

this critical step in the EPA’s methodology:

Figure 1 

RMS Three-Year Avg.

RMS Three-Year Avg.+ Firm 2 Three-Year Avg.+. . .+ Firm 40Three-Year Avg.

4 RMS does not challenge the Framework Rule itself in this petition.

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In essence, RMS argues that the “RMS Three-Year Avg.” term was 

too small due to the EPA’s arbitrary and capricious actions with 

respect to Companies A and B, and therefore, the output of this 

formula was smaller than it should have been. Because the output 

of this formula represents RMS’s percentage share of the total permit allocation if this number was too small, then it also means RMS 

received fewer allowances than it should have in step 6.

II. 

The AIM Act adopts the judicial review provision of the 

Clean Air Act, 42 U.S.C. § 7607, and makes it applicable “as though 

[the AIM Act] were expressly included in title VI of [the Clean Air] 

Act.” 42 U.S.C. § 7675(k)(1)(C). Section 7607(b)(1) provides that 

challenges to “nationally applicable” actions “may be filed only in” 

the D.C. Circuit, while challenges to “locally or regionally applicable” actions “may be filed only” in the regional Courts of Appeals.5 

A petition for review of a locally or regionally applicable action 

may be heard only in the D.C. Circuit if the EPA Administrator first 

makes and publishes a finding that the action has a “nationwide 

scope or effect.” Id. Because the EPA made no such finding, our 

5 We do not consider today whether § 7607 is a jurisdictional or venue provision. By its text, the “may be filed only” phrasing makes this forum provision 

mandatory, leaving us no discretion. The EPA asks that we enforce the provision, and that is enough for our purposes today. The nuances of the distinction between jurisdictional and venue provisions are not relevant to the disposition of this petition, and so we reserve that question for a later day.

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decision today turns entirely on whether the EPA’s action is “nationally” or “locally or regionally” applicable.

Whether a petition under the Clean Air Act is “nationally 

applicable” is an issue of first impression for this court. That said, 

we do not write on an entirely blank slate—our sister circuits have 

established a consensus that we should begin our analysis by analyzing the nature of the EPA’s action, not the specifics of the petitioner’s grievance. See, e.g., ATK Launch Sys., Inc. v. EPA, 651 

F.3d 1194, 1199 (10th Cir. 2011) (“The nature of the regulation, not 

the challenge, controls.”); Am. Road & Transp. Builders Ass’n v. 

EPA, 705 F.3d 453, 456 (D.C. Cir. 2013) (“[I]n determining that [an 

action] is a ‘locally or regionally applicable’ action, this Court need 

look only to the face of the rulemaking, rather than to its practical 

effects.”); S. Ill. Power Coop. v. EPA, 863 F.3d 666, 670 (7th Cir. 

2017) (“Under the straightforward (if wordy) statutory text, venue 

depends entirely on—and is fixed by—the nature of the agency's 

action . . . .”). 

Our own review of § 7607(b)(1)’s text leads us to the same 

conclusion. The text makes no reference to the nature of the petition. Instead, it reads, “[a] petition for review of action of the Administrator [under specified sections], or any other nationally applicable regulations promulgated, or final action taken . . . may be 

filed only in the [D.C. Circuit].” 42 U.S.C § 7607(b)(1). As the Seventh Circuit put it, the text is “wordy,” but clear. S. Ill. Power 

Coop., 863 F.3d at 670. The phrase “nationally applicable” 

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describes the “regulations promulgated, or final action taken,” not 

the nature of the “petition for review.” 

With this in mind, we look to the face of the challenged EPA 

action, and RMS designated the Allocation Notice in its petition as 

the challenged action. The Allocation Notice is three pages long 

and, except for a brief introduction, consists entirely of three tables 

listing each firm’s permit allocation for calendar year 2022. Allocation Notice, 86 Fed. Reg. at 55,841–43. Table 1 addresses allocations set aside for specific uses required by 42 U.S.C. 

§ 7675(e)(4)(B)(iv). 86 Fed. Reg. at 55,842 tbl.1. Table 2 addresses 

the allocation of production allowances. Id. at tbl.2. Finally, and 

relevant here, table 3 addresses consumption allowances. Id. at

55,843 tbl.3. Table 3 has forty-two line-item entries; forty of these

are company names followed by their calculated consumption allocation for the year. Id.6 RMS appears on the list under the entry 

for “RMS of Georgia,” and it received 1,615,592.9 allowances for 

2022.

We conclude that the Allocation Notice was nationally applicable. First, as a textual matter, nothing in it limits the scope of 

the EPA’s action based on geography. Indeed, the Allocation Notice assigns allowances to firms nationwide. Second, the 

6 The two other entries account for the application-specific allocations referred to in table 1 and permits set-aside for allocation later in the year. See 

Framework Rule, 86 Fed. Reg. at 55,155 (describing the purpose of set-aside 

permits).

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allowances themselves are not geographically restricted. See 42 

U.S.C. § 7675(e)(2)(D)(ii) (describing the “[n]ature of allowances”). 

If RMS decided to do so, it could relocate its facilities anywhere else 

in the country and utilize its permits elsewhere. The permits were 

allocated on a firm-specific basis, not a site-specific basis.

RMS advances two theories for why the Allocation Notice is 

locally applicable, but neither is persuasive. First, RMS argues that 

the EPA’s allocation of permits to it is based on local factors relevant only to its facility in Alpharetta, Georgia. RMS relies on the 

Seventh Circuit’s decision in Madison Gas & Electric Co. v. EPA,

which addressed a similar allowance trading regime under the 

EPA’s acid rain program. See 4 F.3d 529, 530 (7th Cir. 1993), overruled by S. Ill. Power Coop., 863 F.3d at 668 & n.1. There, the 

Seventh Circuit concluded that it was the proper forum—despite 

permits being allocated to firms nationwide, in a single table and in 

a single notice—because “the challenge is based upon an entirely 

local factor . . . .” Id. at 531 (emphasis added). First, Madison Gas 

is of dubious persuasiveness because it has been overruled in its 

own circuit. Second, as explained above, we have rejected for ourselves the petition centric approach it advocates. Third, the argument fails on its own terms as RMS’s allocation of permits is not 

“based upon an entirely local factor.” The Allocation Notice, by its 

terms, is an implementation of the EPA’s separately promulgated 

Framework Rule, and allowances are made consistent with it. Allocation Notice, 86 Fed. Reg. at 55,841. The formula described in 

the Framework Rule does not base each firm’s allowance on 

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entirely firm-specific factors. Recall our representation of the calculation of RMS’s share of the allowance pool:

Figure 1 

RMS Three-Year Avg.

RMS Three-Year Avg.+ Firm 2 Three-Year Avg.+. . .+ Firm 40Three-Year Avg.

 

As part of its methodology, the EPA identified RMS’s three 

highest years of HFC usage between 2011 and 2019 and averaged 

them together; this is the “RMS Three-Year Avg.” term. The local factors RMS identifies are essentially its disputes with Companies A 

and B, and RMS’s own historic usage of HFCs. The EPA’s resolution of these factual disputes, RMS argues, resulted in its three-year 

average, represented as “RMS Three-Year Avg.,” being improperly low 

and thus its share of the allowance pool being improperly low as 

well. But while the “RMS Three-Year Avg.” term appears by itself in the 

numerator of this formula, it is combined with the thirty-nine other 

HFC industry firms in the denominator. Thus, RMS’s allocation is

not based on its own “entirely local” historical HFC usage but is 

instead relative to and based on every single other firm’s historical 

usage.

RMS’s second argument has a similar theme. It argues that 

the Allocation Notice is not one big action but instead a document 

detailing many smaller individual actions. Viewed this way, RMS 

argues that it is challenging only its line-item in table 3, not table 3 

as a whole or the other firm’s allocations. But this argument presents too narrow a view of the EPA’s final action. Rather, the 

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Allocation Notice is better understood as one EPA action, and 

RMS’s allocation an inseparable component of it. By placing a cap 

on allowances, Congress created a kind of “zero-sum” game for the 

HFC industry. Any gain in permits that one firm gets must be offset by a loss to another firm and vice versa. The Framework Rule’s 

methodology bears this out. Recall again the formula in figure 1. 

While our version features RMS, each firm in table 3 is also subject 

to the same formula—just with its own three-year average in the 

numerator in place of RMS’s. Of course, any shift in one firm’s 

three-year average will change the output of that firm’s formula. 

But it will also change every other firm’s formula as well. This is 

because each firm’s three-year average term appears not just in the 

numerator, but in the denominator as well and the denominator is 

shared across firms nationwide. Any shift in any single firm’s threeyear average demands a recalculation of the shared denominator 

and thus the formulas for every single firm listed in table 3. The 

EPA’s Allocation Notice in table 3 is thus the result of a singular 

EPA action allocating HFC allowances nationwide, and RMS cannot isolate its individual component of it. 

We conclude that because the Allocation Notice allocated 

permits nationwide and was not restricted in geographic scope it 

was nationally applicable. Accordingly, RMS’s challenge to its 

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allocation, as an inseparable component of that action, must be 

heard in the D.C. Circuit. See 42 U.S.C. § 7607(b)(1).7

III. 

All that is left for us to do is to transfer this case to the D.C. 

Circuit. Because Congress vested that court, and not this court,

with the authority to hear this petition we think the D.C. Circuit is 

better suited to rule on the pending motion to intervene made by 

FluoroFusion, Inc, and so, we leave that motion pending and transfer it as well.

Accordingly, the Clerk is directed to TRANSFER this petition, with the pending motion to intervene, to the United States 

Court of Appeals for the District of Columbia Circuit.

PETITION TRANSFERRED.

7 By utilizing the Clean Air Act’s judicial review provision for the AIM Act, it 

is reasonable to assume Congress would not have intended every challenge to 

AIM Act agency actions be heard in the D.C. Circuit and our decision is not in 

conflict with this principle. The EPA’s regulations authorize it to take firm 

specific actions to “retire, revoke, or withhold the allocation of allowances” to 

firms that violate the EPA’s regulations. See 40 C.F.R. § 84.35(a); see also 

Framework Rule, 86 Fed. Reg. at 55,168–72 (discussing EPA’s enforcement 

authority). At oral argument, EPA’s counsel suggested that it could “retire, 

revoke, or withhold” allowances to a firm that failed to maintain “documentation of . . . final payment of the antidumping” duties on HFC imports, as required by 40 C.F.R. § 84.31(c)(2)(xix), and such an action might be considered 

“locally” applicable as it modifies only one firm’s allocations. As we have discussed though, the EPA’s action here did not act on the individual firm level 

and instead distributed permits to multiple firms, nationwide.

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