During the week of June 19, the D.C. Circuit issued three opinions.
In Heating, Air Conditioning & Refrigeration Distributors International v. EPA, the D.C. Circuit vacated part of an EPA rule that regulated hydrofluorocarbons—highly potent greenhouse gases used in fridges, freezers, and air conditioners. In 2020, Congress enacted the American Innovation and Manufacturing Act, which directed the EPA to phase out hydrofluorocarbons through a cap-and-trade program. A short time later, the EPA issued a final rule implementing that program and adopting measures designed to prevent a black market from developing. Specifically, the rule required that hydrofluorocarbons be transported in refillable cylinders with a QR code on them to make them easier to track.
Judge Walker, joined by Judge Henderson, held that the EPA failed to identify statutory authority for those regulations. The court focused its analysis on 42 U.S.C. § 7675(e)(2)(B), which (1) provided that the EPA “shall ensure” that production and consumption of hydrofluorocarbons “does not exceed” statutory caps, and (2) explained how the EPA should calculate those caps. In the court’s view, subsection (e)(2)(B) was a “math equation” that told the EPA how to calculate the caps, “not a grant of regulatory power.” Moreover, the rest of the statute included “detailed instructions” about how the EPA should make sure that the statutory caps weren’t exceeded, which “undercut the agency’s claim that (e)(2)(B) gives it power to pass other measures.” Finally, the court noted that the refillable-cylinder requirement alone would cost between $441 million and $2 billion, and that it was “unlikely that Congress would have granted the agency authority to pass a rule of that magnitude in a provision of the statute that says nothing about complementary measures, refillable cylinders, or QR Codes.”
Judge Pillard dissented. She acknowledged that subsection (e)(2)(B) told the EPA how to calculate the statutory caps. But it also imposed a duty on the EPA to “ensure” that people complied with those caps. And a different statutory provision—section 7675(k)(1)(A)—gave the EPA the authority to “promulgate such regulations as are necessary” to effect compliance. Together, in her view, those provisions authorized the EPA’s refillable-cylinder and QR-code requirements.
On two other issues, all three judges agreed. First, the court unanimously held that the EPA could regulate hydrofluorocarbons even when they’re blended with other chemicals. And second, the court unanimously rejected a nondelegation challenge because the petitioner failed to exhaust it before the agency.
In Buchanan v. Barr, the D.C. Circuit reluctantly affirmed the dismissal of several suits against federal law enforcement officers. After the deaths of George Floyd and Breonna Taylor, protestors gathered in Lafayette Park to protest racism and police violence. On June 1, 2020, federal officers cleared those protestors from the park—using tear gas, rubber bullets, flash grenades, and pepper spray. A few minutes later, President Trump walked through Lafayette Park to St. John’s Church to take a photograph.
Several protestors sued, alleging that the officers’ actions violated the First, Fourth, and Fifth Amendments and seeking damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). But the D.C. Circuit held that the protestors couldn’t recover damages under Bivens. As Judge Sentelle explained, the Supreme Court has held that plaintiffs can recover damages under Bivens only in extremely narrow circumstances and the protestors’ suits didn’t qualify.
Two judges wrote separately to express discomfort with the outcome. Judge Wilkins acknowledged that Supreme Court precedent required dismissal, but suggested that the Court’s precedent might be unduly narrow. Judge Walker likewise concurred in the dismissal, but suggested that the protestors might be able to recover damages through state tort suits.
In Colindres v. U.S. Dep’t of State, the D.C. Circuit affirmed the denial of Edvin Colindres Juarez’s visa application. Mr. Colindres, who was born and raised in Guatemala, had applied for a visa, but the government denied it on the ground that he was part of a criminal organization. Mr. Colindres and his wife, who was an American citizen, challenged that decision.
Judge Walker, joined by Judge Randolph, explained that the court could not review the visa denial unless it burdened Mrs. Colindres’s constitutional rights. Mrs. Colindres argued that this exception applied because the denial interfered with her constitutional right to marriage. The court acknowledged that marriage is a fundamental right, but held that it doesn’t include the right to live in America with one’s spouse. The court also held that, even if the exception applied, the Colindreses’ challenge would fail on the merits because the government had a facially legitimate and bona fide reason for denying the visa.
Chief Judge Srinivasan concurred in part and concurred in the judgment. In his view, the court didn’t need to decide whether the fundamental right to marriage included the right to live with one’s spouse. And while Judge Srinivasan agreed that the government had a facially legitimate and bona fide reason for denying the visa, he reached that conclusion for different reasons.