Nat Resrc Def Cncl v. EPA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed August 29, 2006

No. 04-1438

NATURAL RESOURCES DEFENSE COUNCIL,
PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY AND
MICHAEL O. LEAVITT, ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS

METHYL BROMIDE INDUSTRY PANEL OF THE AMERICAN
CHEMISTRY COUNCIL,
INTERVENOR

On Petition for Rehearing

Before: HENDERSON and RANDOLPH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Senior Circuit Judge
EDWARDS.
 2

RANDOLPH, Circuit Judge: The United States and other
countries entered into the Montreal Protocol on Substances that
Deplete the Ozone Layer, Sept. 16, 1987, S. TREATY DOC. NO.
100-10, 1522 U.N.T.S. 29 (“Montreal Protocol”), a treaty in
which the signatory nations agreed to reduce the use of certain
substances, including methyl bromide, that degrade the
stratospheric ozone layer. The Environmental Protection
Agency issued a rule implementing “critical use” exemptions
from the treaty’s general ban on production and consumption of
methyl bromide. Protection of Stratospheric Ozone: Process for
Exempting Critical Uses From the Phaseout of Methyl Bromide,
69 Fed. Reg. 76,982 (Dec. 23, 2004) (codified at 40 C.F.R. pt.
82) (“Final Rule”). We dismissed the Natural Resources
Defense Council’s petition for judicial review for lack of
standing. Natural Res. Def. Council v. EPA, 440 F.3d 476, 477-
78 (D.C. Cir. 2006) (“NRDC I”). In their respective petition for
and opposition to rehearing, NRDC and EPA offered new
information that has led us to change our view of the standing
issue. We therefore grant the petition for rehearing, withdraw
our previous opinion, and decide the merits. FED. R. APP. P.
40(a)(4)(A); see, e.g., Moldea v. New York Times Co., 22 F.3d
310, 311-12 (D.C. Cir. 1994).

I.

In the mid-1970s, scientists discovered that certain man-
made chemicals can destroy the layer of ozone gas in the
stratosphere approximately ten to twenty-five miles above the
Earth’s surface. Stratospheric ozone absorbs ultraviolet
radiation; as the ozone layer thins, less radiation is absorbed.
Increased human exposure to ultraviolet radiation is linked to a
range of ailments, including skin cancer and cataracts.

Amidst growing international concern about ozone
depletion, the United States and twenty-four other nations
 3

entered into the Montreal Protocol. The Protocol requires
signatory nations – which now number 189 – to reduce and
eliminate their production and use of ozone-depleting chemicals
in accordance with agreed-upon timetables. Montreal Protocol
arts. 2-2I. The Senate ratified the treaty in 1988, and Congress
incorporated its terms into domestic law through the Clean Air
Act Amendments of 1990, Pub. L. No. 101-549, tit. VI, 104 Stat.
2399, 2648. Since then, the United States has reduced its use of
methyl bromide to less than 39% of its 1991 baseline.

In 1997, the Parties “adjusted” the Protocol to require
developed-country Parties to cease “production” and
“consumption”1 of methyl bromide by 2005. See Montreal
Protocol art. 2H(5).2 In response, Congress amended the Clean
Air Act to require EPA to “promulgate rules for reductions in,
and terminate the production, importation, and consumption of,
methyl bromide under a schedule that is in accordance with, but
not more stringent than, the phaseout schedule of the Montreal

1
“Production” is defined as “the amount of controlled
substances produced, minus the amount destroyed [under the Protocol]
and minus the amount entirely used [to produce other chemicals].”
Montreal Protocol art. 1(5). “Consumption” is “production plus
imports minus exports of controlled substances.” Id. art. 1(6).
2
Current article 2H was added by “adjustment” at the Ninth
Meeting of the Parties. See U.N. Env’t Programme, Report of the
Ninth Meeting of the Parties to the Montreal Protocol on Substances
that Deplete the Ozone Layer, U.N. Doc. UNEP/OzL.Pro.9/12, Annex
III (Sept. 25, 1997) (“Ninth Report”). The Protocol allows
“adjustments” to be made without formal amendment and ratification.
See Montreal Protocol art. 2(9). In incorporating the Protocol into
domestic law, Congress defined the Protocol to include “adjustments
adopted by the Parties thereto and amendments that have entered into
force.” 42 U.S.C. § 7671(9).
 4

Protocol Treaty as in effect on October 21, 1998.” 42 U.S.C.
§ 7671c(h).

Methyl bromide is a naturally occurring gas produced by
oceans, grass and forest fires, and volcanoes. U.S. Dep’t of
Agric., Agric. Research Serv., Soil Physics & Pesticide
Research: Methyl Bromide 1 (2005),
http://www.ars.usda.gov/Research/docs.htm?docid=10408. It is
also man-made and used as a broad-spectrum pesticide. See
Final Rule, 69 Fed. Reg. at 76,983. Methyl bromide is typically
injected into soil as a fumigant before several types of crops are
planted. The United States regulates methyl bromide as a “class
I” ozone-depleting substance. See 42 U.S.C. § 7671c(h).
Methyl bromide has an “ozone depletion potential” (“ODP”) of
0.38-0.60. This puts it in the middle range of substances
scheduled for elimination under the Protocol. It is not nearly as
destructive as chlorofluorocarbons and most other class I
substances, almost all of which were phased out in 2000. 42
U.S.C. § 7671c(b). On the other hand, it is significantly more
destructive than “class II” substances, which are to be phased
out in 2030. See 42 U.S.C. § 7671d(b).

In light of methyl bromide’s wide use and the lack of
comparable substitute pesticides, see Final Rule, 69 Fed. Reg. at
76,985, the Protocol allows exemptions from the general ban “to
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.
2H(5); see also 42 U.S.C. § 7671c(d)(6) (“To the extent
consistent with the Montreal Protocol, the [EPA] Administrator
. . . may exempt the production, importation, and consumption
of methyl bromide for critical uses.”). The Parties to the
Protocol meet annually to “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.
 5

2H(5). At one of these meetings the Parties set general
guidelines for implementing the critical-use exemptions, see
Ninth Report, supra note 2, at 26-27 (“Decision IX/6”), and at
another the Parties approved exemptions for 2005. The United
States formally began the process of establishing its 2005
critical-use exemptions in May 2002, when EPA published a
notice in the Federal Register seeking applications for 2005 and
2006 critical uses of methyl bromide and the amounts of new
production and consumption needed to satisfy those uses. See
Protection of Stratospheric Ozone: Process for Exempting
Critical Uses From the Phaseout of Methyl Bromide, 67 Fed.
Reg. 31,798 (May 10, 2002). EPA teams composed of
biologists and economists reviewed each application and
decided which to include in the aggregate U.S. nomination to the
Parties. The final U.S. nomination, submitted to the Montreal
Protocol’s administrative body (the “Ozone Secretariat”) in
February 2003, requested a total exemption of about ten-
thousand metric tons of methyl bromide for sixteen different
uses.

The process then moved to the international stage. Two
working groups operating under the auspices of the Ozone
Secretariat – the “Methyl Bromide Technical Options
Committee” and the “Technology and Economic Assessment
Panel” – evaluated each country’s nomination and made a
recommendation to the Parties at their November 2003 meeting.
At that meeting, the Parties deadlocked over the proposed
critical-use exemptions and called an “extraordinary meeting”
to make the final decisions. See U.N. Env’t Programme, Report
of the Fifteenth Meeting of the Parties to the Montreal Protocol
on Substances that Deplete the Ozone Layer, U.N. Doc.
UNEP/OzL.Pro.15/9, at 8-11, 77-78 (Nov. 11, 2003).

The Parties reached agreement at their First
Extraordinary Meeting in March 2004. They granted the United
 6

States critical uses in sixteen categories, amounting to 8,942
metric tons of methyl bromide. To satisfy these critical uses, the
Parties authorized 7,659 metric tons of new production and
consumption, with the remainder (1,283 metric tons) to be made
up from existing stocks of methyl bromide. See U.N. Env’t
Programme, Report of the First Extraordinary Meeting of the
Parties to the Montreal Protocol on Substances that Deplete the
Ozone Layer, U.N. Doc. UNEP/OzL.Pro.ExMP/1/3, at 14-15, 26
(Mar. 27, 2004) (“Decision Ex.I/3”). Decision Ex.I/3 noted that
“each Party which has an agreed critical use should ensure that
the criteria in paragraph 1 of decision IX/6[3] are applied when
. . . authorizing the use of methyl bromide and that such
procedures take into account available stocks.” Id. ¶ 5.

With Decision Ex.I/3 in hand, EPA proposed rules to
implement the critical-use exemption. See Protection of
Stratospheric Ozone: Process for Exempting Critical Uses From
the Phaseout of Methyl Bromide, 69 Fed. Reg. 52,366 (Aug. 25,
2004). Many parties, including NRDC, submitted comments.
The Final Rule, issued in December 2004, authorized new
production and consumption up to the limit established in
Decision Ex.I/3. Final Rule, 69 Fed. Reg. at 76,990 tbl.1. It
also authorized the use of stocks as permitted by the decision, id.
at 76,986, 76,991 tbl.2, and permitted noncritical users to draw
upon existing stocks, id. at 76,988.4

3
Decision IX/6 permits exemptions only when all technically
and economically feasible steps have been taken to minimize the
required use and when methyl bromide is not available from existing
stocks. Id. ¶ 1(b)(i), (ii).
4
After NRDC filed its petition for judicial review, the Parties
met again and approved 2006 critical uses, see U.N. Env’t
Programme, Report of the Second Extraordinary Meeting of the
Parties to the Montreal Protocol on Substances that Deplete the
Ozone Layer, U.N. Doc. UNEP/OzL.Pro.ExMP/2/3, at 5-6 (July 1,
 7

NRDC believes the Final Rule violated Decision IX/6
and Decision Ex.I/3 because EPA failed to disclose the full
amount of existing stocks, failed to offset new production and
consumption by the full amount of these stocks, and failed to
reserve the stocks for critical uses, and because the total amount
of methyl bromide critical use the Final Rule authorized is not
the technically and economically feasible minimum.5 These
claims depend upon the legal status of Decisions IX/6 and
Ex.I/3.

After oral argument, we ordered supplemental briefing
to address the question whether consensus decisions of the
Parties are “cognizable in federal court actions brought to
enforce the Protocol and the relevant terms of the Clean Air
Act.” EPA and NRDC agree that the decisions are not
“adjustments” to the Protocol. But they disagree on the legal
consequences of the decisions.

II.

In order for this court to have Article III jurisdiction,
NRDC had to establish that at least one of its members has
standing to sue in his own right, the interests the association
seeks to protect are germane to its purpose, and individual

2005) (“Second Extraordinary Report”), with no apparent comment
on the United States’s 2005 domestic process. EPA has issued a rule
to implement the 2006 exemptions. See Protection of Stratospheric
Ozone: The 2006 Critical Use Exemption from the Phaseout of Methyl
Bromide, 71 Fed. Reg. 5985 (Feb. 6, 2006) (to be codified at 40
C.F.R. pt. 82).
5
EPA argues that the decisions do not require that a party
exhaust existing stocks of methyl bromide before carrying out
exempted production and consumption or that existing stocks be
restricted to critical uses.
 8

members need not participate in the lawsuit themselves. Sierra
Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (citing Hunt v.
Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342-43
(1977)). We have no reason to doubt that NRDC meets the
second and third requirements. As to the first, NRDC had to
demonstrate that at least one member satisfied the “irreducible
constitutional minimum” of standing: injury-in-fact, causation,
and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992).

NRDC claimed that its members faced increased health
risks from EPA’s rule. Although this claim does not fit
comfortably within the Supreme Court’s description of what
constitutes an “injury in fact” sufficient to confer standing –
such injuries must be “actual or imminent, not ‘conjectural’ or
‘hypothetical,’” Whitmore v. Arkansas, 495 U.S. 149, 155
(1990) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-
02 (1983)) – we have recognized that increases in risk can at
times be “injuries in fact” sufficient to confer standing. See
Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1234-
35 (D.C. Cir. 1996). Environmental and health injuries often are
purely probabilistic. See NRDC I, 440 F.3d at 483; cf. 520 S.
Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 962-63 (7th
Cir. 2006). We have cautioned that this category of injury may
be too expansive. “[W]ere all purely speculative ‘increased
risks’ deemed injurious, the entire requirement of ‘actual or
imminent injury’ would be rendered moot, because all
hypothesized, nonimminent ‘injuries’ could be dressed up as
‘increased risk of future injury.’” Ctr. for Law & Educ. v. Dep’t
of Educ., 396 F.3d 1152, 1161 (D.C. Cir. 2005). We therefore
generally require that petitioners demonstrate a “substantial
probability” that they will be injured. See Sierra Club, 292 F.3d
at 898, 899; Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63-64, 67
(D.C. Cir. 2000); La. Envtl. Action Network v. EPA, 172 F.3d
65, 68 (D.C. Cir. 1999). Mountain States Legal Foundation v.
 9

Glickman, which found that an increased risk of forest fire
created by a Forest Service logging rule was enough to support
standing, held that the relevant variations in risk must be “non-
trivial,” 92 F.3d at 1235, and “sufficient . . . to take a suit out of
the category of the hypothetical,” id. at 1234-35 (quoting Vill. of
Elk Grove Vill. v. Evans, 997 F.2d 328, 329 (7th Cir. 1993)).

NRDC’s expert quantified the increased risk posed by
EPA’s rule in an affidavit stating that “it is reasonable to expect
more than 10 deaths, more than 2,000 nonfatal skin cancer
cases, and more than 700 cataract cases to result from the 16.8
million pounds of new production and consumption allowed by
the 2005 exemption rule.” Aff. of Dr. Sasha Madronich ¶ 8.
Intervenor Methyl Bromide Industry Panel argued that the
probability of injury to NRDC’s members is too small. In
NRDC I, we found the annualized risk posed to NRDC members
to be trivial. 440 F.3d at 481-82 & n.8, 484. The parties
vigorously dispute whether we were correct to hold as a
quantitative matter that NRDC’s alleged injury was trivial or
whether, in NRDC’s words, any “scientifically demonstrable
increase in the threat of death or serious illness,” Pet. for Reh’g
or Reh’g En Banc 4, is sufficient for standing. This question has
given rise to a conflict among the circuits. Compare Baur v.
Veneman, 352 F.3d 625, 634 (2d Cir. 2003); Cent. Delta Water
Agency v. United States, 306 F.3d 938, 947-48 (9th Cir. 2002);
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,
204 F.3d 149, 160 (4th Cir. 2000) (en banc), with Shain v.
Veneman, 376 F.3d 815, 818 (8th Cir. 2004); Baur, 352 F.3d at
651 & n.3 (Pooler, J., dissenting). On reconsideration, we have
determined that the question is one we do not have to answer in
this case. EPA’s expert, who built the quantitative model on
which both sides rely, now informs us that “[e]xpressing the risk
in annualized terms is not practical” and “it is more appropriate
to express the risk as a population’s cumulative or lifetime
 10

risk.”6 Decl. of Reva Rubenstein ¶ 20. The lifetime risk that an
individual will develop nonfatal skin cancer as a result of EPA’s
rule is about 1 in 200,000 by the intervenor’s lights, see Aff. of
Dr. Louis Anthony Cox, Jr. ¶ 13, or 1 in 129,000 by EPA’s,
Decl. of Reva Rubenstein ¶¶ 8-9. Even if a quantitative
approach is appropriate – an issue on which we express no
opinion – this risk is sufficient to support standing. One may
infer from the statistical analysis that two to four of NRDC’s
nearly half a million members will develop cancer as a result of
the rule.

As to causation, NRDC’s asserted injuries are linked to
EPA’s action through a fairly straightforward chain: EPA has
permitted too much new production and consumption of methyl
bromide, which will result in more emissions, which will
increase ozone depletion, which will adversely affect the health
of NRDC’s members. This injury can be redressed if EPA does
not permit such excessive production and consumption of
methyl bromide.

III.

On the merits, NRDC argues that “EPA’s 2005 critical-
use rule violates the express terms of the Montreal Protocol
Parties’ unanimous Decisions,” Final Opening Br. for Pet’r 20,

6
Both EPA and the intervenor argue that NRDC has
procedurally defaulted or waived the arguments it makes in its
rehearing petition. Although petitioners bear the burden of
demonstrating their standing “by affidavit or other evidence,” Sierra
Club, 292 F.3d at 899-90 (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992)), that does not preclude NRDC (or its opposing
parties) from correcting a panel’s misperception of the evidence in a
petition for rehearing. See Am. Library Ass’n v. FCC, 401 F.3d 489,
493-94 (D.C. Cir. 2005).
 11

and therefore is “not in accordance with law.” 42 U.S.C.
§ 7607(d)(9)(A); see Allied Local & Reg’l Mfrs. Caucus v. EPA,
215 F.3d 61, 68 (D.C. Cir. 2000).

Decision Ex.I/3, in which the Parties reached agreement
on methyl bromide critical-use exemptions for 2005, stated that
the United States had a critical need for 8,942 metric tons of
methyl bromide. Id. Annex II.A. To meet this need, the Parties
agreed to allow new production and consumption in the amount
of 7,659 metric tons, id. Annex II.B, with the remaining critical
uses to be met by drawing down existing stocks. Id. ¶ 2. The
decision also stated that each Party “which has an agreed critical
use should ensure that the criteria in paragraph 1 of decision
IX/6 are applied” when implementing the exemption, “and that
such procedures take into account available stocks.” Id. ¶ 5
(emphasis added). Paragraph 1 of Decision IX/6 directs the
Parties to authorize new production and consumption of methyl
bromide only if it “is not available in sufficient quantity and
quality from existing stocks,” Decision IX/6 ¶ 1(b)(ii), and only
after “[a]ll technically and economically feasible steps have
been taken to minimize the critical use,” id. ¶ 1(b)(i).

NRDC believes EPA’s rule departs from these post-
treaty agreements in three respects. First, the rule authorizes
7,659 metric tons of new production and consumption – the
maximum agreed upon in Decision Ex.I/3 – without offsetting
this amount by existing stocks. See Final Rule, 69 Fed. Reg. at
76,989. EPA declined to disclose the size of the total
nationwide methyl bromide stockpile, see id. at 76,990 – an
action NRDC claims is itself a violation of the Clean Air Act, 42
U.S.C. § 7607(d)(4)(B)(i). Still, the record suggests that the
stockpile is at least as large as the United States’ total critical-
use allocation for 2005. Second, EPA’s rule allows noncritical
users to draw down existing stocks. See Final Rule, 69 Fed.
Reg. at 76,987-88. NRDC claims that the “decisions” implicitly
 12

reserve the stocks for critical users only. Third, EPA approved
8,942 metric tons of critical uses – again the maximum agreed
upon in Decision Ex.I/3 – without considering anew whether
this was the minimum amount feasible. Id. at 76,989. EPA
counters that it adhered to the agreed-upon critical-use and new
production and consumption levels, and that the remainder of
the decisions are “hortatory.” Id. at 76,987.

NRDC fashions the entirety of its argument around the
proposition that the “decisions” under the Protocol are “law.”
This premise is flawed. The “decisions” of the Parties – post-
ratification side agreements reached by consensus among 189
nations – are not “law” within the meaning of the Clean Air Act
and are not enforceable in federal court.

The Clean Air Act authorizes EPA to “exempt the
production, importation, and consumption of methyl bromide for
critical uses” only “[t]o the extent consistent with the Montreal
Protocol.” 42 U.S.C. § 7671c(d)(6); see also id. § 7671m(b).7
The Protocol bans the production or consumption of methyl
bromide after December 31, 2004, except “to 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. 2H(5). NRDC argues that because
the Clean Air Act requires EPA to abide by the Protocol, and
because the Protocol authorizes future agreements concerning
the scope of the critical-use exemption, those future agreements
must “define the scope of EPA’s Clean Air Act authority.”
Supp. Br. for Pet’r 4.

7
The Montreal Protocol includes the Protocol itself and any
“adjustments adopted by Parties thereto and amendments that have
entered into force.” 42 U.S.C. § 7671(9). NRDC and EPA agree that
the “decisions” are not “adjustments” to the Protocol. Supp. Br. for
Pet’r 1; Supp Br. for the Resp. 2-5.
 13

NRDC’s interpretation raises significant constitutional
problems. If the “decisions” are “law” – enforceable in federal
court like statutes or legislative rules – then Congress either has
delegated lawmaking authority to an international body or
authorized amendments to a treaty without presidential signature
or Senate ratification, in violation of Article II of the
Constitution. The Supreme Court has not determined whether
decisions of an international body created by treaty are judicially
enforceable. But there is a close analogy in this court. The
United States is a party to a treaty establishing the International
Court of Justice (ICJ). In Committee of United States Citizens
Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988),
we held that rulings of the ICJ do not provide “substantive legal
standards for reviewing agency actions,” id. at 942, because the
rulings, though authorized by the ratified treaty, were not
themselves self-executing treaties. Id. at 937-38; see, e.g.,
Medellin v. Dretke, 544 U.S. 660, 682-84 (2005) (O’Connor, J.,
dissenting).

Although Committee of United States Citizens is highly
suggestive of the outcome in this case, several features of the
Montreal Protocol “decisions” may distinguish them from ICJ
“adjudications.” For one thing, Congress implemented the
Montreal Protocol with a direction to EPA to abide by its terms.
See 42 U.S.C. §§ 7671c(d)(6), 7671m(b). For another, Montreal
Protocol “decisions” are not adjudications between parties;
instead, they purport to set rules for implementing ongoing
treaty commitments.

The legal status of “decisions” of this sort appears to be
a question of first impression. There is significant debate over
the constitutionality of assigning lawmaking functions to
international bodies. See, e.g., Julian G. Ku, The Delegation of
Federal Power to International Organizations: New Problems
with Old Solutions, 85 MINN. L. REV. 71 (2000); Edward T.
 14

Swaine, The Constitutionality of International Delegations, 104
COLUM. L. REV. 1492 (2004). A holding that the Parties’ post-
ratification side agreements were “law” would raise serious
constitutional questions in light of the nondelegation doctrine,
numerous constitutional procedural requirements for making
law, and the separation of powers.

We need not confront the “serious likelihood that the
statute will be held unconstitutional.” Almendarez-Torres v.
United States, 523 U.S. 224, 238 (1998); see also id. at 250
(Scalia, J., dissenting). It is far more plausible to interpret the
Clean Air Act and Montreal Protocol as creating an ongoing
international political commitment rather than a delegation of
lawmaking authority to annual meetings of the Parties. Cf.
Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989).

Nowhere does the Protocol suggest that the Parties’ post-
ratification consensus agreements about how to implement the
critical-use exemption are binding in domestic courts. The only
pertinent language in Article 2H(5) states that the Parties will
“decide to permit” production and consumption necessary to
satisfy those uses that they “agree[]” to be critical uses. The
Protocol is silent on any specific conditions accompanying the
critical-use exemption. Post-ratification agreements setting
these conditions are not the Protocol.

To illustrate, suppose the President signed and the Senate
ratified a treaty with Germany and France to conserve fossil
fuel. How this is to be accomplished the treaty does not specify.
In a later meeting of representatives of the signatory countries
at the United Nations, a consensus is reached to lower the speed
limits on all major highways of the signatory nations to a
maximum of 45 miles per hour. No one would say that United
States law has thus been made.
 15

EPA characterizes the decisions as “subsequent
consensus agreements of the Parties that address the
interpretation and application of the critical use provision . . ..”
Final Rule, 69 Fed. Reg. at 76,985. This may be so. Like any
interpretive tool, however, the “decisions” are useful only to the
extent they shed light on ambiguous terms in the Protocol. But
the details of the critical-use exemption are not ambiguous.
They are nonexistent. The “decisions” do not interpret treaty
language. They fill in treaty gaps.

Article 2H(5) thus constitutes an “agreement to agree.”
The parties agree in the Protocol to reach an agreement
concerning the types of uses for which new production and
consumption will be permitted, and the amounts that will be
permitted. “Agreements to agree” are usually not enforceable
in contract. See 1 RICHARD A. LORD, WILLISTON ON
CONTRACTS § 3:5, at 223-24 & n.17 (4th ed. 1990); cf. El Al
Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167
(1999); Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217,
226 (1996); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829)
(“A treaty is in its nature a contract between . . . nations.”). And
the fruits of those agreements are enforceable only to the extent
that they themselves are contracts. There is no doubt that the
“decisions” are not treaties.

The Parties’ post-ratification actions suggest their
common understanding that the decisions are international
political commitments rather than judicially enforceable
domestic law. See Olympic Airways v. Husain, 540 U.S. 644,
650 (2004); Tseng, 525 U.S. at 167; RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 325(2)
(1987) (“Any subsequent . . . practice between the parties in the
application of the agreement [is] to be taken into account in its
interpretation.”). The Parties met to decide the 2006 critical-use
exemptions well after EPA’s rule went into effect. See Second
 16

Extraordinary Report, supra note 4. Yet they did not invoke the
Protocol’s internal noncompliance procedure against the United
States, see Montreal Protocol art. 8, nor did they admonish the
United States to change its interpretation of the previous
decisions.8 This course of dealing suggests that the Parties
intended the side agreements to be enforceable as a political
matter at the negotiating table.

Our holding in this case in no way diminishes the power
of the Executive to enter into international agreements that
constrain its own behavior within the confines of statutory and
treaty law. The Executive has the power to implement ongoing
collective endeavors with other countries. See LOUIS HENKIN,
FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 219-
20 (2d ed. 1996). Without congressional action, however, side
agreements reached after a treaty has been ratified are not the
law of the land; they are enforceable not through the federal
courts, but through international negotiations.

IV.

NRDC claims that EPA violated the Clean Air Act when
it failed to disclose the amount of existing domestic stockpiled
methyl bromide. See 42 U.S.C. § 7607(d)(4)(B)(i). In doing so,

8
NRDC points to a change in the language from Decision
Ex.I/3 (the 2005 decision) to Decision Ex.II/1 (the 2006 decision).
Compare Decision Ex.I/3 ¶ 5 (“[Each Party] should ensure that the
criteria in paragraph 1 of decision IX/6 are applied . . ..” (emphasis
added)), with Second Extraordinary Report, supra note 4, at 5-6 ¶ 5
(“Decision Ex.II/1”) (“[Each Party] renews its commitment to ensure
that the criteria in paragraph 1 of decision IX/6 are applied . . ..”
(emphasis added)). But this change in diplomatic language can hardly
be said to change the United States’ substantive commitments under
the Protocol.
 17

EPA merely followed its own regulation that precluded
disclosure of the information pending the resolution of reverse
FOIA litigation. See 40 C.F.R. § 2.205(f)(2). NRDC’s own
FOIA request for the aggregate stockpile information was
denied on this basis. See NRDC v. Leavitt, No. 04-01295, 2006
WL 667327 (D.D.C. Mar. 14, 2006). EPA’s actions were in
accordance with law and neither arbitrary nor capricious.

* * *

Because we now conclude that NRDC has standing to
pursue its claim, we grant the petition for rehearing and
withdraw our prior opinion. Because the post-ratification
agreements of the parties are not “law,” EPA’s rule – even if
inconsistent with those agreements – is not in violation of any
domestic law within the meaning of the Clean Air Act, 42
U.S.C. § 7607(d)(9)(A), the petition for review is denied.

So ordered.
 EDWARDS, Senior Circuit Judge, concurring: I agree that
increases in risk can be “injuries in fact” sufficient to confer
Article III standing, and I concur in the judgment that the risk
demonstrated by petitioners in this case is sufficient to support
standing.
I also agree that, on the merits, petitioners’ claim fails. As
the majority opinion notes, NRDC’s principal argument is that
“EPA’s 2005 critical-use rule violates the express terms of the
Montreal Protocol Parties’ unanimous Decisions,” Final
Opening Br. for Pet’r at 20, and therefore is “not in accordance
with law,” 42 U.S.C. § 7607(d)(9)(A). In rejecting this claim,
our holding is precise and limited:
The “decisions” of the Parties – post-ratification side
agreements reached by consensus among 189 nations – are
not “law” within the meaning of the Clean Air Act and are
not enforceable in federal court.
Maj. Op. at 12.
On the record before us, this holding is eminently correct
for two reasons. First, “[n]owhere does the Protocol suggest that
the Parties’ post-ratification consensus agreements about how to
implement the critical-use exemption are binding in domestic
courts.” Maj. Op. at 14. Second, and, in my view, most
important, the disputed “decisions” do not shed light on any
ambiguous terms in the Protocol:
[T]he details of the critical-use exemption are not
ambiguous. They are nonexistent. The “decisions” do not
interpret treaty language. They fill in treaty gaps.
Article 2H(5) thus constitutes an “agreement to agree.”
. . . And the fruits of those agreements are enforceable only
to the extent that they themselves are contracts. There is no
doubt that the “decisions” are not treaties.
Maj. Op. at 15. As I see it, these two points control our
disposition of petitioners’ claim on the merits.
 2

_______________
Absent procedural defaults, the Supreme Court has
indicated that “we should give respectful consideration to the
interpretation of an international treaty rendered by an
international court with jurisdiction to interpret such.” Breard
v. Greene, 523 U.S. 371, 375 (1998) (per curiam). As the
majority opinion makes clear, however, the disputed “decisions”
in this case do not involve “interpretations” of a treaty “by an
international court with jurisdiction to interpret such.”
The Supreme Court has yet to explain whether, “once the
United States undertakes a substantive obligation (as it did in the
Vienna Convention), and at the same time undertakes to abide
by the result of a specified dispute resolution process (as it did
by submitting to the [International Court of Justice’s]
jurisdiction . . .), it is bound by the rules generated by that
process no less than it is by the treaty that is the source of the
substantive obligation.” Medellin v. Dretke, 544 U.S. 660, 683
(2005) (O’Connor, J., dissenting). In other words, it is unclear
whether a judgment by a body such as the ICJ, “decided on the
back of a self-executing treaty, . . . must be given effect in our
domestic legal system just as the treaty itself must be.” Id. The
bewildering array of views found in the per curiam, concurring,
and dissenting opinions filed in Medellin make it clear that the
Court has not yet come to grips with this issue. Nor do we.
_______________
The majority opinion should not be taken to suggest that
this court’s decision in Committee of United States Citizens
Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988),
offers an answer to the perplexing issue that was skirted in
Medellin. Committee of United States Citizens does not address
the issue that was left open in Medellin, nor does it address the
issue raised by petitioners in this case.
 3

The dispute in Committee of United States Citizens
originated with
a 1986 decision by the International Court of Justice (ICJ),
which held that America’s support of military actions by the
so-called “Contras” against the government of Nicaragua
violated both customary international law and a treaty
between the United States and Nicaragua. The ICJ
concluded that the United States “is under a duty
immediately to cease and to refrain from all such acts as
may constitute breaches of the foregoing legal obligations.”
...
Prior to the ICJ’s decision, the United States withdrew
from the merits phase of the court’s proceedings,
contending that the court lacked jurisdiction over
Nicaragua’s application. . . . [T]he President [then]
requested and Congress . . . approved continued funding for
the Contras of the sort that the ICJ found illegal. . . .
Unhappy with their government’s failure to abide by
the ICJ decision and believing that continued funding of the
Contras injures their own interests, appellants filed suit in
the United States District Court for the District of
Columbia. The suit sought [inter alia] injunctive and
declaratory relief against the funding of the Contras on
grounds that such funding violates . . . Article 94 of the
U.N. Charter. . . .
859 F.2d at 932. The court rejected this claim on narrow
grounds:
Since appellants allege that Congress has breached Article
94, we must determine whether such a claim could ever
prevail. The claim could succeed only if appellants could
prove that a prior treaty – the U.N. Charter – preempts a
subsequent statute, namely the legislation that funds the
Contras. It is precisely that argument that the precedents of
 4

the Supreme Court and of this court foreclose. We
therefore hold that appellants’ claims based on treaty
violations must fail.
Id. at 937.
There is no suggestion in the present case that Congress
modified or denounced the disputed Protocol and that, as a
result, a prior treaty obligation has been overridden by a
subsequent act of Congress. See Diggs v. Shultz, 470 F.2d 461,
466-67 (D.C. Cir. 1972) (“Congress can denounce treaties if it
sees fit to do so, and there is nothing the other branches of
government can do about it.”), overruled on other grounds,
Dellums v. U.S. Nuclear Regulatory Comm’n, 863 F.2d 968
(D.C. Cir. 1988). The decision in Committee of United States
Citizens is therefore inapposite.
_______________
Petitioners’ claim in this case seems more akin to the claim
raised in Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir.
1975). The dispute in Day concerned whether an airline was
liable for damages to passengers who were injured during a
terrorist attack while waiting to board an international flight
after surrendering their tickets and passing through passport
control. The Warsaw Convention assigns liability to the airline
for injuries sustained “on board the aircraft or in the course of
any of the operations of embarking or disembarking.” Id. at 33.
TWA argued that the Warsaw convention did not apply because
the passengers had not started the embarking process that, in
their view, began when a passenger “steps through the terminal
gate.” Id. The court looked to a subsequent agreement entered
into by the world’s major airlines as clear evidence that the
purpose of the Warsaw Convention was to provide maximum
protection to the passengers.
Those called upon to construe a treaty should . . . strive
to give the specific words of a treaty a meaning consistent
 5

with the genuine shared expectations of the contracting
parties. These expectations can, of course, change over
time. Conditions and new methods may arise not present at
the precise moment of drafting. . . . The conduct of the
parties subsequent to ratification of a treaty may, thus, be
relevant in ascertaining the proper construction to accord
the treaty’s various provisions.
In divining the purposes of the Warsaw treaty, we find
the adoption in 1966 of the Montreal Agreement
particularly instructive. This Agreement did not alter the
language of Article 17 of the Warsaw Convention. But it
provides decisive evidence of the goals and expectations
currently shared by the parties to the Warsaw Convention.
Id. at 35-36 (internal quotation and citation omitted). But see
Buonocore v. Trans World Airlines, Inc., 900 F.2d 8, 11 (2d Cir.
1990) (noting that Day had come “under some criticism over the
years on the ground that it construed Article 17 too broadly in
favor of liability”). Even the broadest reading of Day, however,
offers no solace for petitioners in this case.
In Day, the court was asked to divine the meaning of an
ambiguous term of the Warsaw Convention and then to enforce
the term in accordance with the parties’ intent. In this case, the
disputed “decisions” do not purport to interpret any treaty
language, nor do they purport to adjudicate disagreements
between the parties over the meaning of the Protocol. The
Protocol provision upon which petitioners rely is nothing more
than an “agreement to agree.” Therefore, on the facts of this
case, we have no authority to address a claim that rests on side
agreements that extend beyond the enforceable terms of the
Protocol.
_______________
In sum, we do not decide here whether, once the United
States undertakes a substantive obligation in a treaty, and at the
 6

same time undertakes to abide by the result of a specified
dispute resolution process before an international tribunal, it is
bound by the judgments of the tribunal no less than it is by the
treaty that is the source of the substantive obligation. That
question is not before us.