 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 7, 2012          Decided January 22, 2013

                       No. 10-1347

  HONEYWELL INTERNATIONAL, INC. AND E. I. DU PONT DE
              NEMOURS AND COMPANY,
                   PETITIONERS

                            v.

          ENVIRONMENTAL PROTECTION AGENCY,
                    RESPONDENT

                  ARKEMA INC., ET AL.,
                    INTERVENORS


       Consolidated with 10-1348, 10-1349, 10-1350


            On Petitions for Review of Rules of
           the Environmental Protection Agency


    Timothy K. Webster argued the cause for petitioners.
With him on the briefs were James R. Wedeking, Richard
Ayres, Jessica Olson, Chet M. Thompson, Robert J. Meyers,
and David Y. Chung.

    Perry M. Rosen, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was
                              2
Diane E. McConkey, Attorney.        Matthew R. Oakes, Trial
Attorney, entered an appearance.

    Dan Himmelfarb argued the cause for intervenors. With
him on the brief were John S. Hahn, Roger W. Patrick, Brian
J. Wong, William J. Hamel, Roscoe C. Howard Jr., and Gia
V. Cribbs.

    Before: ROGERS, BROWN, and KAVANAUGH, Circuit
Judges.

   Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Circuit Judge ROGERS joins.

    Dissenting opinion filed by Circuit Judge BROWN.

     KAVANAUGH, Circuit Judge: Under the Clean Air Act,
the Environmental Protection Agency administers a cap-and-
trade program regulating the production and consumption of
hydrochlorofluorocarbons, a class of ozone-depleting
pollutants. (We frown on excessive use of acronyms, but in a
case involving a 24-letter word, we think it appropriate to use
HCFCs for hydrochlorofluorocarbons.) This cap-and-trade
program entails overall caps on production and consumption
of various HCFCs for each year, as well as EPA-administered
baseline allowances of HCFCs for each participating
company. Companies are then permitted to transfer their
allowances, subject to certain statutory and regulatory
restrictions.

     Honeywell and DuPont, whom we refer to collectively as
Honeywell, complain that certain 2008 transfers made by
their competitors Arkema and Solvay were deemed to
permanently increase those competitors’ future baseline
allowances of HCFC-22. Because there is an overall cap on
                             3
HCFC-22 production, this is a zero-sum system: The
increased allowances to Arkema and Solvay in turn reduced
Honeywell’s market share and allowances of HCFC-22. The
problem for Honeywell here is that this Court concluded in
Arkema Inc. v. EPA that those permanent transfers were valid
under the Clean Air Act. 618 F.3d 1, 6-9 (D.C. Cir. 2010).
Honeywell believes that Arkema was incorrectly decided.
Absent en banc review, we must adhere to circuit precedent.
And because Honeywell’s other challenges to the 2008
transfers are meritless, we deny the petitions for review.

                             I

     The Clean Air Act gradually phases out all HCFCs over
five regulatory periods spanning to 2030. See 42 U.S.C.
§§ 7671d(c), 7671e(b). In the meantime, the Act regulates
HCFCs through a cap-and-trade program administered by the
Environmental Protection Agency. There are overall caps on
production and consumption of each HCFC for each year.
And for each regulatory period, EPA allots a baseline
allowance for each regulated HCFC to each company
participating in the cap-and-trade program. EPA has always
set baseline allowances by considering historical usage of
HCFCs by participating companies.

     The Clean Air Act permits companies to transfer their
allowances.      Two kinds of transfers are permitted –
interpollutant transfers and intercompany transfers. In an
interpollutant transfer, a company swaps its allowance of a
particular HCFC for a particular year for its allowance of a
different HCFC for the same year.           See 42 U.S.C.
§ 7671f(b)(1). In an intercompany transfer, two companies
swap allowances of the same HCFC. See 42 U.S.C.
§ 7671f(c). Intercompany transfers may permanently affect
the trading companies’ baseline allowances of that HCFC,
                              4
with one company having a higher allowance and one having
a lower allowance. 76 Fed. Reg. 47,451, 47,459-60 (Aug. 5,
2011).

     In 2008, EPA approved the interpollutant transfers at
issue in this case. Arkema made transfers swapping its
allowance of HCFC-142b for an increase in its allowance of
HCFC-22. Solvay did the same.

     In 2009, EPA set baseline allowances for the 2010-2014
regulatory period.       EPA did not recognize the 2008
interpollutant transfers by Arkema and Solvay in setting their
baseline allowances for HCFC-22. 74 Fed. Reg. 66,412,
66,419 (Dec. 15, 2009). Arkema and Solvay then challenged
EPA’s rule. In Arkema Inc. v. EPA, this Court held that EPA
had to honor the transactions EPA previously approved and
had to recognize the 2008 transfers in setting Arkema and
Solvay’s baseline allowances for HCFC-22 for 2010-2014, at
least so long as EPA continued to set baselines by considering
the historical usage of HCFCs by participating companies.
618 F.3d 1, 6-9 (D.C. Cir. 2010).

     Following Arkema, EPA incorporated the 2008 transfers
into the baseline allowances of HCFC-22 for 2010-2014,
thereby reducing Honeywell’s HCFC-22 market share and
allowances. 76 Fed. Reg. at 47,459. Honeywell filed a
petition for review in this Court, challenging the 2008
transfers that formed the basis for the new baseline HCFC-22
allowances for 2010-2014. EPA, along with intervenors
Arkema and Solvay, respond that Honeywell lacks standing;
that Honeywell’s petitions are untimely; and that our decision
in Arkema forecloses Honeywell’s claims. We conclude that
we have jurisdiction and that the petitions are timely. But
based on Arkema, we deny the petitions on the merits.
                              5

                              II

     The initial question is whether Honeywell has standing to
challenge EPA’s approval of the 2008 interpollutant transfers
by Arkema and Solvay and the transfers’ corresponding effect
on the baseline allowances for the 2010-2014 period. To
establish standing, Honeywell must show a cognizable injury
in fact that is concrete and particularized and actual or
imminent; that its injuries are fairly traceable to EPA’s
allegedly unlawful conduct; and that a favorable ruling will
likely remedy its injuries. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992).

     Honeywell has suffered an injury in fact. The decrease in
Honeywell’s market share and in allowances of HCFC-22 is a
concrete and particularized injury. Honeywell’s injury is
fairly traceable to the now-permanent 2008 interpollutant
transfers by Arkema and Solvay because the injury would not
have occurred but for the 2008 transfers. See Duke Power
Co. v. Carolina Environmental Study Group, Inc., 438 U.S.
59, 74-75 (1978); LaRoque v. Holder, 650 F.3d 777, 789
(D.C. Cir. 2011); Community Nutrition Institute v. Block, 698
F.2d 1239, 1247 (D.C. Cir. 1983) (“A plaintiff need only
make a reasonable showing that ‘but for’ defendant’s action
the alleged injury would not have occurred.”). And because
Honeywell’s market share and allowances of HCFC-22 would
not have decreased but for the now-permanent 2008 transfers,
invalidating the 2008 transfers would remedy Honeywell’s
injuries. Honeywell has therefore satisfied all of the
requirements of standing.

     EPA relatedly suggests that Honeywell’s challenge is
untimely. We disagree. Although many challenges to EPA
action under the Clean Air Act must be filed within 60 days
                              6
from the date that the notice appears in the Federal Register,
challenges “based solely on grounds arising after” the
expiration of the 60-day period are permitted so long as they
are filed within 60 days of the new grounds. 42 U.S.C.
§ 7607(b)(1).

     Here, this Court’s decision in Arkema constitutes after-
arising grounds, and Honeywell filed within 60 days of that
decision. Honeywell could not have raised its merits
arguments until our decision in Arkema. In particular, several
of Honeywell’s arguments depend on the premise that the
2008 interpollutant transfers by Arkema and Solvay were
permanent. Prior to Arkema, however, EPA viewed the
transfers as lasting only for a limited time – that is, not
permanently. Arkema changed the legal landscape on that
issue, which suffices to constitute after-arising grounds under
the circumstances of this case.

    Having resolved the various threshold arguments in
Honeywell’s favor, we turn to the merits of Honeywell’s
arguments.

                              III

     On the merits, Honeywell’s main contention ultimately
boils down to a claim that permanent interpollutant transfers
are prohibited by Section 607 of the Clean Air Act.
Honeywell notes that Section 607 permits interpollutant
transfers of an allowance of one HCFC for an allowance of a
different HCFC only “for the same year.” 42 U.S.C.
§ 7671f(b)(1). Honeywell explains, moreover, that there is no
similar “for the same year” limitation on intercompany
transfers. See id. at § 7671f(c). Intercompany transfers may
permanently affect baseline allowances. Honeywell thus
argues that interpollutant transfers are good only for the same
                               7
year in which the transfers are made and should not be
permanent or affect a company’s baseline allowance for a
new regulatory period.

     Put simply, Honeywell’s claim is foreclosed by this
Court’s decision in Arkema. Arkema held that EPA, having
approved the 2008 interpollutant transfers, had to honor them
in the future, at least so long as EPA continued to set
baselines by considering the historical usage of HCFCs by
participating companies. Arkema, 618 F.3d at 6-9. To reach
that conclusion, as EPA correctly explains in its brief here, the
Arkema Court necessarily concluded that permanent
interpollutant transfers were permissible under the statute.
That conclusion controls in this case.

     Honeywell disagrees strongly with this Court’s decision
in Arkema. For that matter, EPA says that it too disagrees
with Arkema. (Intervenors Arkema and Solvay are of course
happy with Arkema.) Absent en banc review, we are bound
by the Arkema decision.

     In a roundabout attempt to undermine the now-permanent
2008 transfers, Honeywell also raises longshot procedural
challenges to the 2008 transfers themselves. The basic
answer to those various arguments is that Honeywell had
notice and an opportunity to present its views during EPA’s
pre-Arkema regulatory proceedings, during the Arkema
litigation, and during EPA’s subsequent post-Arkema
proceedings.      Because Honeywell had notice and an
opportunity to comment, and EPA’s reasonable interpretation
of its regulation controls, see Auer v. Robbins, 519 U.S. 452,
461 (1997), its procedural objections to the 2008 transfers are
unavailing. As is apparent from the briefing, Honeywell’s
real problem here is the permanence of the 2008
interpollutant transfers by Arkema and Solvay and the altered
                            8
HCFC-22 allowances for the 2010-2014 period. In other
words, Honeywell’s real problem is Arkema. But a panel
cannot remedy that problem.

                          ***

   We deny the petitions for review.

                                           So ordered.
     BROWN, Circuit Judge, dissenting: In Arkema, this Court
held that EPA changed the legal landscape by not giving
effect to the 2008 transfers in the new regulatory period—in
other words, that the 2008 transfers had always been
permanent. See 618 F.3d at 8–9. Thus, Arkema cannot
constitute after-arising grounds and the petitions for review
are untimely.
