ORAL ARGUMENT HELD OCTOBER 17, 2005 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

No. 04-1438 

NATURAL RESOURCES DEFENSE COUNCIL, 

Petitioner, 

V. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 

Respondent. 

ON PETITION FOR REVIEW OF FINAL ADMIlQSTRATIVE ACTION 

OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

SUPPLEMENTAL BRIEF FOR THE RESPONDENT 

KELLY A. JOHNSON 

Acting Assistant Attorney General 

JOHN C. CRUDEN 

Deputy Assistant Attorney General 

STEVEN E. RUSAK 

Environmental Defense Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

Of Counsel: P.O. Box 23986 

Washington, D.C. 20026-3986 

ANN R. KLEE (202) 514-9275 

General Counsel 

DIANE E. McCONKEY 

Office of General Counsel 

U.S. Environmental Protection Agency 

Ariel Rios Building, 2344A 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

November 7, 2005 
TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii 

GLOSSARY OF ACRONYMS AND ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv 

I. Decisions IX/6 And Ex. I/3 Are Not Adjustments Or Amendments Under Article 

2(9) Of The Montreal Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

II. Decisions IX/6 And Ex. I/3 Are Cognizable In Federal Court Actions Brought 

To Enforce The Treaty And The CAA Only To The Limited Extent That They 

Are Consensus Decisions Interpreting Or Applying A Term In The Protocol (As 

Adjusted Or Amended) Or Are Expressly Authorized In The Protocol To Fill 

Particular Gaps In Rights Or Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 

CONCLUSION ..............................................................11 
TABLE OF AUTAORITIES 

CASES: PAGES 

Baker v. Carr, 369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

Committee of United States Citizens v. Reag_an, 859 F.2d 929 (D.C. Cir. 1988) ............ 10 

O'Connor v. United States, 479 U.S. 27 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

Oetjen v. Cent. Leather Co., 246 U.S. 297 (1918) . . . . . . . . . . . . . . . I. . . . . . . . . . . . . . . . . . . . 11 

Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,11 

CONSTITUTION: 

U.S.Const.art.Il;§2 ......................................................... 11 

STATUTES: 

42 U.S.C.§ 7671(9) ......................................................... 1,5 

42 U.S.C.§ 7671c ............................................................ 9 

42 U.S.C. § 7671c(d)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,7 

42 U.S.C.§ 7671f ............................................................ 9 

FEDERAL REGISTERS: 

60 Fed. Reg. 24,970 (May 10, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

69 Fed. Reg. 76,982 (Dec. 23, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 

69 Fed. Reg. 76,984 ...........................................................6 

69 Fed. Reg.76,985 ...........................................................9 

69 Fed. Reg. 76,988 ...........................................................8 

ii 
MISCELLANEOUS: 

Handbook for the International Treaties for the Protection 

of the Ozone Layer, Ozone secretariat, United Nations 

Ozone Programme, Sixth Ed. (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 

1969 Vienna Convention on the Law of Treaties (8 Int'1 Legal Materials 679 (1969)) ........ 6 

iii 
GLOSSARY OF ACRONYMS AND ABBREVIATIONS 

Pursuant to Circuit Rule 28(a)(3), the following is a glossary of acronyms and 

abbreviations used in this brief: 

Agency or EPA United States Environmental Protection Agency 

CAA or Act Clean Air Act 

CUE Rule EPA's final rule entitled "Protection of Stratospheric Ozone: Process for 

Exempting Critical Uses From the Phaseout of Methyl Bromide," 69 Fed. 

Reg. 76,982 (Dec. 23, 2004) 

JA Joint Appendix 

rw 
In an Order dated October 18, 2005, the Court ordered the parties to file supplemental 

briefs "addressing whether `Decisions' issued by parties to the Montreal Protocol are cognizable 

`Adjustments' under Article 2(9) of the Protocol and/or whether such Decisions are otherwise 

cognizable in federal court actions brought to enforce the Protocol and the relevant terms of the 

Clean Air Act" ("CAA"), given the definition of "Montreal Protocol" in the CAA. The CAA 

defines the term "Montreal Protocol" to mean "the Montreal Protocol on Substances that Deplete 

the Ozone Layer, a protocol to the Vienna Convention for the Protection of the Ozone Layer, 

including adjustments adopted by the Parties thereto and amendments that have entered into 

force." 42 U.S.C. § 7671(9). The "decisions" at issue in this action do not contain 

"adjustments" because they do not meet the substantive and procedural requirements for 

adjustments set forth in the Montreal Protocol and are not identified as containing adjustments. 

It is equally clear that they do not contain amendments. Thus, the provisions contained in these 

decisions are cognizable in federal court actions brought to enforce the Montreal Protocol only in 

limited circumstances. 

As a general matter, decision language that is per se cognizable and relevant includes 

language adopted by consensus by Parties to the Montreal Protocol that interprets or applies a 

term in the Protocol (as adjusted and amended), to the extent the interpretation or application of 

the term is consistent with the ordinary meaning of the Protocol, as well as language that is 

expressly authorized in the Protocol to fill particular gaps in rights or obligations. Thus, the 

provisions contained in Decisions IX/6 and Ex. U3 are cognizable in federal court actions 

brought to enforce the Montreal Protocol and the terms of the CAA only to the limited extent that 

they interpret and apply treaty language or fill gaps as authorized by the treaty to address: (1) 

what uses are critical and (2) the level of production and import allowed in any given year. 
While the Parties may set narrowly tailored conditions on the authorization of a particular level 

of production and import for critical uses, any other commitments in these decisions are political 

commitments that are not domestically cognizable. 

I. Decisions IX/6 And Ex. I/3 Are Not Adjustments Or Amendments Under Article 2(9) Of 

The Montreal Protocol. 

Article 2(9) of the Montreal Protocol narrowly defines an "adjustment" as a special type 

of decision that modifies the ozone-depleting potential or phase-out schedule of a controlled 

substance, based upon a special assessment that is done pursuant to Article 6. Montreal Protocol, 

arts. 2(9) and 6, JA177, 202. Article 6 requires the parties to "assess the control measures 

provided for in Article 2 and Articles 2A to 2I on the basis of available scientific, environmental, 

technical and economic information" at least every four years. Id. art. 6, JA202. As part of the 

assessment, the parties to the treaty are required to "convene appropriate panels of experts" at 

least one year before the assessment. Id. The Panels report their conclusions to the parties 

within one year of being convened. Id. Thus, adjustment decisions are extremely limited in 

scope and must be based upon an Article 6 assessment. 

Adjustments must also follow several additional requirements. Under Article 2, proposed 

adjustments must be communicated to the parties at least six months before the meeting of the 

parties at which they are to be proposed for adoption, and may be adopted by a two-thirds 

majority vote of the parties present and voting, but only if the vote also represents a majority of 

both the developed and the developing countries present and voting. Montreal Protocol, art. 

2(9)(b) and (c), JA177. Decisions to adopt adjustments are reported in a"Report of the Meeting 

of the Parties" that expressly identifies the decisions as containing adjustments. See e.a., "Report 

Page 2 
of the Ninth Meeting of the Parties to the Montreal Protocol" ("Report of the Ninth Meeting") at 

24-25 (Decisions IX/1 through IX/3) and Annexes I through III (attached as Exhibit 1). In 

addition, all adjustment decisions from the Ninth Meeting of the Parties to the present state 

formulaically that the adjustments were adopted "in accordance with the procedure laid down in 

paragraph 9 of Article 2 of the Montreal Protocol and on the basis of the assessments made 

pursuant to Article 6 of the Protocol." See id. To further clarify which decisions of the parties 

are adjustments, adjustments are also identified as such in the separately paginated "Annexes" at 

the end of the Report of the Meeting of the Parties at which the decision was adopted. See 

Report of the Ninth Meeting at Annexes I through III (Ex. 1). Therefore, adjustments are easily 

identified. 

Critical use exemptions for methyl bromide under Article 2H(5), reflected in Decisions 

IX/6 and Ex.1/3, are not adjustments because they are not adopted pursuant to an Article 6 

assessment and exceed the scope of Article 2(9). Neither Decision IX/6 nor Ex. 1/3, the two 

decisions at issue in this case, were adopted pursuant to an Article 6 assessment for an 

adjustment, nor were the Parties notified that these decisions were being proposed as adjustments 

six months before the meeting. See Decision IX/6 and Ex. 1/3, JA223-24, 255-58; Report of the 

Ninth Meeting at 24, 26-27 (Ex. 1); Report of the First Extraordinary Meeting of the Parties to 

the Montreal Protocol on Substances that Deplete the Ozone Layer ("Report of the First 

Extraordinary Meeting") at 14-15 (attached as Exhibit 2). In addition, Decisions IX/6 and Ex. 1/3 

do not adjust the ozone depleting potential of inethyl bromide in Annex E of the Montreal 

Protocol or the phase-out schedule provided in Article 2H. Decisions IX/6 and Ex. I/3, JA223- 

24, 255-58. To the contrary, methyl bromide continues to be listed in Annex E of the Protocol as 

Page 3 
a controlled substance with an ozone-depleting potential of 0.6 and remains subject to the phaseout schedule set forth in Article 2H. Montreal Protocol, art. 2H and Annex E, JA188-90, 219. 

Consistent with this analysis, the parties to the Montreal Protocol have not identified 

Decisions IX/6 and Ex. 1/3 as containing adjustments. Rather, the parties identify Decision IX/6 

as "Critical-use exemptions for methyl bromide" and Decision Ex. 1/3 as "Critical-use 

exemptions for methyl bromide for 2005," not as containing adjustments to the treaty. Decision 

IX/6, JA223; Decision Ex. 1/3, JA255. The titles of these decisions contrast greatly with the 

titles of every other decision containing an adjustment. See Decision 11/1 (titled "Adjustments 

and reductions"); Decisions IV/2, IV/3, V11/1, V11/2 and V11/3 (titled "Further adjustments and 

reductions"); and Decisions IX/l, IX/2, IX/3, X1/2, XU3 and XT/4 (titled "Further Adjustments") 

See Handbook for the International Treaties for the Protection of the Ozone Layer, Ozone 

Secretariat, United Nations Ozone Programme, Sixth Ed. (2003) at 108-10 (attached as Exhibit 

3). 

Even more significant, neither Decision IX/6 nor Decision Ex. 1/3 states that it was made 

"in accordance with the procedure laid down in paragraph 9 of Article 2 of the Montreal Protocol 

and on the basis of the assessments made pursuant to Article 6 of the Protocol." Decision IX/6, 

JA223-24; Decision Ex. 1/3, JA255-58. Likewise, neither decision is listed as containing an 

adjustment in the "Annexes" at the end of the Reports of the Meeting of the Parties at which each 

decision was adopted. Report of the Ninth Meeting at Annexes (Ex. 1); Report of the First 

Extraordinary Meeting at 14-15, 21-31 (Ex. 2). This is in sharp contrast to the manner in which 

decisions that adopt adjustments pursuant to Article 2(9) are reported. For example, Decisions 

IX/1, IX/2 and IX/3, which were adopted at the same meeting as Decision IX/6 and are also 

Page 4 
reported in the Report of the Ninth Meeting, are expressly identified as adopting adjustments; 

each states that the decision was made "in accordance with the procedure laid down in paragraph 

9 of Article 2 of the Montreal Protocol and on the basis of the assessments made pursuant to 

Article 6 of the Protocol;" and each is listed in Annexes I through III at the end of the Report of 

the Ninth Meeting. Report of the Ninth Meeting at 24-25 and Annexes I-III (Ex. 1). Thus, it is 

clear that Decisions IX/6 and Ex. I/3 do not contain adjustments under Article 2(9)Y 

II. Decisions IX/6 And Ex. I/3 Are Cognizable In Federal Court Actions Brought To Enforce 

The Treaty And The CAA Only To The Limited Extent That They Are Consenaus 

Decisions Interpreting Or Applying A Term In The Protocol (As Adjusted Or Amended) 

Or Are Expressly Authorized In The Protocol To Fill Particular Gaps In Rights Or 

Obligations. 

CAA section 604(d) allows EPA to exempt "the production, importation, and 

consumption of inethyl bromide for critical uses" from the 2005 phase-out "[t]o the extent 

consistent with the Montreal Protocol." 42 U.S.C. § 7671c(d)(6). Congress defined the 

Montreal Protocol to mean "the Montreal Protocol on Substances that Deplete the Ozone Layer" 

and "adjustments adopted by the Parties thereto and amendments that have entered into force." 

Id. § 7671(9). Because Decisions IX/6 and Ex. I/3 are not adjustments or amendments to the 

treaty, they do not fit within the CAA's definition of "Montreal Protocol." 

Particular provisions in Decisions IX/6 and Ex. I/3, however, are cognizable to the 

limited extent that they either are consensus decisions interpreting or applying a term in the 

J It is equally clear that Decisions IX/6 and Ex. I/3 do not contain amendments to the Montreal 

Protocol because they are not identified by the Parties as containing amendments and have not 

been ratified by the United States. Vienna Convention for the Protection of the Ozone Layer, art. 

9(attached as Exhibit 4); Decision IX/6, JA223-24; Report of the Ninth Meeting at 26-27 

(Decision IX/6) and Annexes I through VII (Ex. 1); Decision Ex. 1/3, JA255-58; Report of the 

First Extraordinary Meeting at 14-15 (Decision Ex. I/3) and 21-31 (Annexes) (Ex. 2). 

Page 5 
Protocol (as adjusted and amended), assuming the interpretation or application of the term is 

consistent with the ordinary meaning and context of the Protocol,y or are expressly authorized in 

the Protocol to fill particular gaps in rights or obligations. In the first case, they would be viewed 

as "subsequent consensus agreements among the Parties to the Montreal Protocol, including the 

United States, regarding the interpretation and application of the Protocol." 69 Fed. Reg. 76,982, 

76,984, JA042. In the second case, they could, depending upon the language and context, be an 

integral element of a United States' right or obligation under the Protocol. 

In neither case above (i.e., whether one focuses on interpretation/application of terms or 

on expressly authorized gap-filling) would the entirety of the relevant Decisions become legally 

cognizable. In Article 2H(5) of the Montreal Protocol, the United States and the other parties to 

the treaty agreed to allow the production and consumption of inethyl bromide after the 2005 

phase-out "[t]o the extent that the Parties decide to permit the level of production or consumption 

that is necessary to satisfy uses agreed by them to be critical uses." Montreal Protocol, art. 

211(5), JA190. This provision is significant because the United States agreed to accept future 

decisions of the parties on only two narrow issues: (1) what uses are critical and (2) the amount 

of inethyl bromide that could be produced and imported after the 2005 phase-out to satisfy those 

uses. Id. This language was added to the Montreal Protocol at the Parties' Ninth Meeting in 

1997, replacing an earlier version agreed to at the Seventh Meeting in 1995. Report of the Ninth 

2! See 1969 Vienna Convention on the Law of Treaties (8 Int'1 Legal Materials 679 (1969)), art. 

31(3) ("[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be 

given to the terms of the treaty in their context and in light of its object and purpose .... There 

shall be taken into account, together with the context: (a) Any subsequent agreement between 

the parties regarding the interpretation of the treaty or the application of its provisions."); 69 Fed. 

Reg. 76,984, JA 042. 

Page 6 
Meeting at 25 and Annex III (Ex. 1); Report of the Seventh Meeting of the Parties to the 

Montreal Protocol at 25, 60-61 (attached as Exhibit 5). 

In 1998, Congress amended the CAA to bring the United States' phase-out of inethyl 

bromide into line with the schedule specified under the Montreal Protocol, and to authorize EPA 

to provide exemptions from the phase-out for critical uses "[t]o the extent consistent with the 

Montreal Protocol." 1999 Omnibus Consolidated and Emergency Supplemental Appropriations 

Act, Pub. L. No. 105-277, § 764, Oct. 21, 1998, codified at 42 U.S.C. § 7671c(d)(6). At the time 

this authority for a critical use exemption was added to the CAA, the treaty itself already 

contained the critical use exemption language that appears in Article 2H today. The 1998 

amendment to the CAA, therefore, provides that the United States may take advantage of the 

critical use exemptions under the Montreal Protocol, provided the regulatory actions are 

"consistent" with the treaty, and also with provisions in the subsequent decisions of the Parties 

that provide additional context on two narrow issues: (1) what uses are critical and (2) the 

amount of inethyl bromide that could be produced and imported after the 2005 phase-out to 

satisfy those uses. These are the only two decisions that are specifically called for by the 

Montreal Protocol itself. To the extent Decisions IX/6 and Ex. U3 address these two points, they 

also interpret and apply the phrase "the level ... necessary to satisfy ... critical uses" as it 

appears in Article 2H(5). There are no other terms in the relevant part of Article 2H(5) that are 

susceptible to such interpretation and application. Thus, the only provisions of Decisions IX/6 

and Ex. U3 that are domestically cognizable in federal court actions brought to enforce the treaty 

and relevant provisions of the CAA are those called for on the face of the Montreal Protocol, 

Page 7 
specifically those that address what uses are critical and the level of production and import 

allowed in any given year. 

In the preamble to the final Critical Use Exemption ("CUE") Rule, EPA addressed the 

issue of whether the Parties could condition the authorization of production and import for 

critical uses by requiring limits on the use of stocks for those same uses. 69 Fed. Reg. at 76,988, 

JA046. EPA interpreted the relevant decision language to mean that "the burden of the stock 

restriction is coextensive with the benefit of the new production and import." Id. EPA noted that 

"the Parties could reasonably set related conditions on agreeing to production and consumption at 

a particular level" and that "the stock restrictions are an integral part of the Parties' decision 

regarding the level of production and consumption necessary to satisfy critical uses." Id. Thus, 

in the CUE Rule, EPA imposed "narrowly tailored use restrictions as a condition of obtaining 

new production and import." 69 Fed. Reg. at 76,988, JA046. 

But that does not imply that gny condition the Parties might seek to impose would fall 

within the scope of Article 2H(5). For example, assuming ar,.p-;uendothat Decision Ex. I/3 

contains an implicit prohibition on the use of stocks for noncritical uses, such a prohibition 

would fall outside the scope of the language in Article 2H(5) and the treaty in general. The 

Montreal Protocol addresses stratospheric ozone depletion by phasing out production and import, 

not by controlling use. "Controlled substances," including methyl bromide, are subject to 

controls on production and consumption (defined as production plus imports minus exports). 

Montreal Protocol, art. 2("Control Measures") and art. 1("Definitions"), JA174-191. 

Instructions for calculating control levels appear in Article 3: while there are formulas for 

calculating production, imports and exports, and consumption, there is no formula for calculating 

Page 8 
use. ~ Id., art. 3("Calculation of Control Levels"), JA191-92. Article 2H of the Montreal 

Protocol, which contains the "control measures" for methyl bromide, includes a schedule for 

phasing out production and consumption; it does not include a schedule for phasing out use. The 

word "use" appears in Article 2H only in the context of exemptions from the production and 

consumption phase-out for particular types of uses. Thus, a use restriction that was not directly 

linked to the level of exempted production and consumption would be a radical departure ffrom 

the treaty text.J 

To the extent Decisions IX/6 and Ex. I/3 contain other commitments that are not directly 

related to the language of Article 2H(5), they are political commitments among the Parties. Such 

political commitments are not domestically cognizable in federal court actions against the 

Executive Branch under the CAA. In developing the CUE Rule, EPA "intended to follow the 

terms of' the relevant decisions and stated that this approach "would ensure consistency with the 

Montreal Protocol." Id. at 76,985, JA043. "The course of conduct of parties to an international 

agreement, like the course of conduct of parties to any contract, is evidence of its meaning." 

O'Connor v. United States, 479 U.S. 27,33 (1986). By taking Decisions IX/6 and Ex. U3 into 

J Similarly, the CAA generally permits use of an ozone-depleting substance to continue 

following the production and consumption phase-out. Compare 42 U.S.C. § 7671c (requiring 

termination of production and consumption) with 42 U.S.C. § 7671 f(requiring regulation of use 

to reduce emissions and maximize recapture and recycling). Consistent with this approach, EPA 

stated, in regard to the CFC phase-out, that "[c]ontrolled substances produced or imported 

through the use of allowances prior to [the phase-out] can continue to be used by industry and the 

public after the phase-out." 60 Fed. Reg. 24,970, 24,970 (May 10, 1995). 

J The United States is not the only country that has interpreted Decision Ex. I/3 as lacking a use 

restriction for non-critical uses. The European Community allows "the placing on the market 

and the use of inethyl bromide" stocks during 2005. Regulation (EC) No. 2037/2000 Art. 4(2)(ii) 

(attached as Exhibit 6). 

Page 9 
account in promulgating the CUE Rule, EPA intended to honor both political and legal 

commitmentOl 

Under the Political Question Doctrine, "courts lack jurisdiction over political decisions 

that are by their nature `committed to the political branches to the exclusion of the judiciary."' 

Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (internal citation omitted). It is wellsettled that a case involves a political question if there is a"textually demonstrable constitutional 

commitment of the issue to a coordinate political department"-J and that "foreign policy decisions 

are the subject of just such a textual commitment." 7J There is no question that "[t]he conduct of 

the foreign relations of our Government is committed by the Constitution to the Executive and 

legislative —`the political' — Departments of the Government, and the propriety of what may be 

, With respect to the treaty's own non-compliance procedures, the Parties have not reached 

agreement on whether to treat action that is at variance with a decision as non-compliance with 

the treaty. The Parties assigned an ad hoc working group to list possible situations of noncompliance with the Protocol; however, participants in the working group disagreed on several 

points, including whether action at variance with a decision belonged on the list. Report of the 

Third Meeting of the Ad Hoc Working Group of Legal Experts on Non-Compliance with the 

Montreal Protocol at 5-6, 10. (Attached as Exhibit 7). The Parties' subsequent decision 

regarding non-compliance procedures omitted any mention of possible situations of noncompliance. Decision IV/5 (attached as Exhibit 8). In that decision, the Parties agreed "to adopt 

the view that the responsibility for legal interpretation of the Protocol rests ultimately with the 

Parties themselves." Id. At oral argument, the Court requested the United States to submit a 

copy of the non-compliance procedure. The current non-compliance procedure is attached as 

Exhibit 9. 

J Baker v. Carr, 369 U.S. 186, 217 (1962). 

J Schneider, 412 F.3d at 194 (quoting Committee of United States Citizens v. Reagan, 859 F.2d 

929, 934-35 (D.C. Cir. 1988)). 

Page 10 
done in the exercise of this political power is not subject to judicial inquiry or decision." 

Schneider, 412 F.3d at 194 (quoting Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918))fi' 

Thus, to the extent Petitioner is challenging the CUE Rule based upon political 

commitments among parties to the Protocol in Decisions IX/6 and Ex. 1/3, the petition presents 

nonjusticiable political questions over which this Court lacks jurisdiction. 

CONCLUSION 

Decisions IX/6 and Ex. I/3 do not contain adjustments or amendments to the Montreal 

Protocol. Therefore, the only provisions of Decisions IX/6 and Ex. I/3 that are domestically 

cognizable in federal court actions are those that the President and Congress agreed to accept in 

Article 2H(5) of the Montreal Protocol, and that interpret or apply certain terms in Article 2H(5), 

specifically those provisions that address (1) what uses are critical and (2) the level of production 

and import allowed in any given year. While, as discussed above, the Parties may in some 

circumstances impose narrowly tailored conditions on the authorization of a particular production 

and import level for critical uses, any other commitments in those decisions are political 

commitments that not domestically cognizable. For the foregoing reasons, and the reasons set 

forth in the United States' Final Brief and at oral argument, the petition for review should be 

denied. 

J This Court has held that Article I, Section 8 of the Constitution, which enumerates the powers 

of the legislature, "is richly laden with delegation of foreign policy and national security powers." 

Schneider, 412 F.3d at 194. Likewise, Article II, Section 2, which enumerates the power of the 

Executive, provides that the President "shall have Power, by and with the Advice and Consent of 

the Senate, to make Treaties ... and by and with the Advice and Consent of the Senate, shall 

appoint Ambassadors, other public Ministers and Consuls." U.S. Const. art. II, § 2. 

Page 11 
Respectfully submitted, 

KELLY A. JOHNSON 

Acting Assistant Attorney General 

Environment and Natural Resources Division 

JOHN C. CRUDEN 

Deputy Assistant Attorney General 

e. R 

STEVEN E. RUSAK 

United States Department of Justice 

Environment & Natural Resources Division 

Environmental Defense Section 

P.O. Box 23986 

Washington D.C. 20026-3986 

Tel: (202) 514-9275 

Counsel for Respondents 

Of Counsel: 

ANN R. KLEE 

General Counsel 

DIANE E. McCONKEY 

Office of General Counsel 

U.S. Environmental Protection Agency 

Ariel Rios Building, 2344A 

1200 Pennsylvania Avenue, N. W. 

Washington, D.C. 20460 

November 7, 2005 

Page 12 
CERTIFICATE OF SERVICE 

I hereby certify that on this 7 t'' day of November, 2005, I caused a true copy of the 

foregoing "Supplemental Final Brief for the Respondent" to be served as indicated on the 

following: 

David D. Doniger 

Amanda Leiter 

Natural Resources Defense Council 

1200 New York Avenue, N.W. 

Suite 400 

Washington, D.C. 20005 

Tel: (202) 289-6868 

e-mail: ddoniger@nrdc.org 

e-mail: aleiter@nrdc.org 

Tracy A. Heinzman 

Wiley Rein & Fielding LLP 

1776 K Street, N.W. 

Washington, DC 20006 

e-mail: theinzman(a),wrf.com 

[ ] U.S. Mail 

[ ] Overnight Mail 

[X] Hand Delivery 

[ ] Telefacsimile 

[X] E-mail 

[ ] U.S. Mail 

[ ] Overnight Mail 

[X] Hand Delivery 

[ ] Telefacsimile 

[X] E-mail 

*~~n ~ g