NRDC v. EPA: Are IO Decisions Really Only Political Commitments?

I have to say I disagree with Roger and John Knox about August’s case of the month. As important as I think the ATCA has become, I think the case Julian flagged last week–NRDC v. EPA—has far greater implications. Indeed, there’s already a fairly lengthy discussion of the case over at the Volokh Conspiracy (see here and here). The NRDC case involved EPA’s efforts to implement the Montreal Protocol parties’ decision on a “critical use” exemption from the phase-out of the ozone-depleting chemical, methyl bromide (for further background on this issue, see my post on Montreal Protocol negotiations last year). Basically, NRDC challenged EPA’s regulations, arguing they were inconsistent with the decisions of the Montreal Protocol parties they were intended to implement.

Everyone seems pretty taken with the D.C. Circuit’s suggestion that if decisions of an international organization were to constitute federal law that would run afoul of the delegation doctrine or the Treaty Power:

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.

Now, I’d agree with prior commentators that whether and when a decision of an international organization (with or without participation by the U.S. Executive Branch) can change domestic U.S. law is an extremely interesting and underexplored issue. My own sense is that the D.C. Circuit exaggerates the legal problem (sorry, Julian) – the court assumes either that decisions of international organizations can be equated to Congress’ lawmaking authority (they can’t) or that for such decisions to have domestic legal force they would need to go through the Article II treaty power (they don’t if they can otherwise derive their domestic authority from congressional statutes, existing Article II treaties, or the President’s own Executive Powers).

At the same time, most of the existing discussion overlooks what the D.C. Circuit actually did in this case. The court does not answer either the delegation doctrine or treaty power questions. Rather, it concludes that the decisions of the Montreal Protocol parties are “political commitments” and, as such, aren’t legally binding. And, if the decisions aren’t binding, the Court doesn’t have to deal with the Constitutional questions it says exist with respect to the prospect of having legally binding decisions of an international organization.

I’ll admit to being fairly incredulous about assigning a merely “political” status to decisions of the Montreal Protocol parties (indeed, although I haven’t had time to check, I wonder whether the treaty’s travaux preparatoires might dispense with the Court’s arguments). The Court appears to envision only two choices for categorizing a decision of the parties to the Montreal Protocol – either it’s “an ongoing international political commitment” or it’s “binding in domestic courts.” But, that seems to oversimplify the possibilities. Couldn’t the Montreal Protocol decision be legally binding on the United States under international law, even if not justiciable by U.S. courts (that’s the case, for example, with respect to adopted WTO Appellate Body decisions)? Alternatively, EPA argued that some of the Montreal Protocol decision at issue was politically binding (e.g., the guidelines for implementing critical use exemptions), suggesting EPA itself viewed other parts of the decision (e.g., the actual quotas on methyl bromide consumption and production) to have international legal effect. As a lawyer for the U.S. delegation to the Montreal Protocol meetings in 2003 and 2004 (at which the parties reached these critical use exemption decisions) I cannot say that I have ever heard anyone suggest the parties’ decisions would entirely lack legal force. The text of Protocol Article 2H certainly does not suggest that as the parties’ intention (i.e., allowing an exemption from the methyl bromide phase out “to the extent that the Parties decide to permit the level of production and consumption that is necessary to satisfy uses agreed by them to be critical uses”). The only evidence the Court offers to support its “political commitment” conclusion is the fact that the Montreal Protocol parties did not invoke non-compliance procedures against the United States in reaction to EPA’s implementation of the Montreal Protocol parties’ decision. But, couldn’t one just as easily view that reaction as an endorsement of the EPA’s view that it was complying with the Montreal Protocol parties’ decisions (and, correspondingly, implying NRDC’s arguments of non-compliance were in error)?

Finally, despite Judge Edwards’ protestations, I wonder whether this decision will open up a Pandora’s box. Although NRDC probably never envisioned this result, the D.C. Circuit appears to authorize EPA to ignore the critical use exemption limitations entirely without fear of any “legal” ramifications. I suspect other Montreal Protocol parties will be quick to remind the EPA and other representatives of the United States that they do not share such a view at the next Meeting of the Parties. At the same time, however, I fear that other U.S. courts might pick-up on the idea of treating decisions of international organizations as “political commitments.” For example, couldn’t the D.C. Circuit’s rationale apply equally to deny international legal effect to the decisions of other international bodies (e.g., the standards of the International Civil Aviation Organization, the International Whaling Commission’s commercial whaling moratorium, the International Maritime Organization’s Regulations)?

In the end, I’d urge readers to give this case a look – it may well have implications that stretch far beyond the ozone layer that the Montreal Protocol was designed to protect. Nor would I be surprised to see the issue continue to garner judicial attention, whether through en banc review by the D.C. Circuit or perhaps winding its way to an even higher court.