Nondelegation on Ice: EPA’s Refrigerant Rule and the DC Circuit’s Constitutional Workaround

In this episode of Unwritten Law, NCLA’s General Counsel Zhonette Brown joins Mark Chenoweth and John Vecchione to unpack the DC Circuit’s ruling in Choice Refrigerants v. EPA.

Congress gave EPA free rein to design a cap-and-trade scheme for hydrofluorocarbons—without clear limits. The court sidestepped the constitutional nondelegation problem by reinterpreting the statute to match past laws, even though EPA didn’t follow that approach.

We explore why this “constitutional avoidance” tactic raises serious rule-of-law concerns, and what it means in the post-Loper Bright world.