Natural Res. Def. Council, Inc. v. Perry
| Decision Date | 10 October 2019 |
| Docket Number | No. 18-15475,No. 18-15380,18-15380 |
| Citation | 940 F.3d 1072 |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, INC. ; Sierra Club; Consumer Federation of America; Texas Ratepayers’ Organization to Save Energy; People of the State of California, by and through Attorney General Xavier Becerra; California State Energy Resources Conservation and Development Commission; State of Maryland; State of Washington; State of Maine; Commonwealth of Massachusetts; State of Vermont; State of Connecticut; Commonwealth of Pennsylvania; District of Columbia; State of Illinois; State of New York; State of Oregon; City of New York; State of Minnesota, Plaintiffs-Appellees, v. JAMES R. PERRY, in his official capacity as Secretary of Energy; U.S. Department of Energy, Defendants-Appellants, and Air-Conditioning, Heating, & Refrigeration Institute, Intervenor-Defendant. Natural Resources Defense Council, Inc. ; Sierra Club; Consumer Federation of America; Texas Ratepayers’ Organization to Save Energy; People of the State of California, by and through Attorney General Xavier Becerra; California State Energy Resources Conservation and Development Commission; State of Maryland; State of Washington; State of Maine; Commonwealth of Massachusetts; State of Vermont; State of Connecticut; Commonwealth of Pennsylvania; District of Columbia; State of Illinois; State of New York; State of Oregon; City of New York; State of Minnesota, Plaintiffs-Appellees, v. James R. Perry, in his official capacity as Secretary of Energy; U.S. Department of Energy, Defendants, and Air-Conditioning, Heating, & Refrigeration Institute, Intervenor-Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
H. Thomas Byron III (argued) and Mark B. Stern, Appellate Staff; Alex G. Tse, Acting United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Ian Fein (argued) and Jennifer Ann Sorenson, Natural Resources Defense Council, San Francisco, California; Aaron Colangelo, Natural Resources Defense Council, Washington, D.C.; Daniel Carpenter-Gold, Natural Resources Defense Council, New York, New York; for Plaintiff-Appellee Natural Resources Defense Council, Inc.
Timothy D. Ballo, Earthjustice, Washington, D.C., for Plaintiffs-Appellees Sierra Club, Consumer Federation of America, and Texas Ratepayers’ Organization to Save Energy.
Somerset Perry (argued) and Jaime Jefferson, Deputy Attorneys General; Susan S. Fiering, Supervising Deputy Attorney General; Sally Magnani, Senior Assistant Attorney General; Office of the Attorney General, Oakland, California; Bryant B. Cannon, Deputy Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; Lisa Kwong and Timothy Hoffman, Assistant Attorneys General; Patrick A. Woods, Assistant Solicitor General; Environmental Protection Bureau, Office of the Attorney General, Albany, New York; George Jepsen, Attorney General; Robert Snook and Matthew Levine, Assistant Attorneys General; Office of the Attorney General, Hartford, Connecticut; Lisa Madigan, Attorney General; Gerald T. Karr, Assistant Attorney General; Attorney General’s Office, Chicago, Illinois; Janet T. Mills, Attorney General; Susan P. Herman, Deputy Attorney General; Office of the Attorney General, Augusta, Maine; Brian E. Frosh, Attorney General; Steven M. Sullivan, Solicitor General; Office of the Attorney General, Baltimore, Maryland; Maura Healey, Attorney General; Shennan Kavanaugh and I. Andrew Goldberg, Assistant Attorneys General; Office of the Attorney General, Boston, Massachusetts; Max Kieley, Assistant Attorney General, Office of the Attorney General, St. Paul, Minnesota; Ellen F. Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Denise G. Fjordbeck, Attorney-in-Charge, Civil Administrative Appeals; Jesse Ratcliffe, Assistant Attorney General; Natural Resources Section, Oregon Department of Justice, Salem, Oregon; Josh Shapiro, Attorney General; Michael J. Fischer, Chief Deputy Attorney General; Office of the Attorney General, Harrisburg, Pennsylvania; Thomas J. Donovan Jr., Attorney General; Julio A. Thompson and Laura B. Murphy, Assistant Attorneys General; Attorney General’s Office, Montpelier, Vermont; Bob Ferguson, Attorney General; Laura J. Watson, Senior Assistant Attorney General; Office of the Attorney General, Olympia, Washington; Karl A. Racine, Attorney General; Loren L. AliKhan, Solicitor General; Office of the Attorney General, Washington, D.C.; Zachary W. Carter, Corporation Counsel; Susan E. Amron, Chief, Environmental Law Division; Haley Stein, Counsel; New York City Law Department, New York, New York; for Plaintiffs-Appellees People of the State of California, California State Energy Resources Conservation and Development Commission, State of New York, State of Connecticut, State of Illinois, State of Maine, State of Maryland, State of Massachusetts, State of Minnesota, State of Oregon, State of Pennsylvania, State of Vermont, State of Washington, District of Columbia, and City of New York.
Stuart Drake and C. Harker Rhodes IV, Kirkland & Ellis LLP, Washington, D.C.; Mark E. McKane and Austin L. Klar, Kirkland & Ellis LLP, San Francisco, California; for Intervenor-Defendant-Appellant.
Before: Mary M. Schroeder and Paul J. Watford, Circuit Judges, and David A. Ezra,* District Judge.
These appeals arise from consolidated actions brought by plaintiffs who seek to compel the United States Department of Energy (DOE) to promulgate four energy-conservation standards. The standards received final approval by DOE at the end of the Administration of President Obama, but thus far, under the Administration of President Trump, DOE has declined to promulgate them. The plaintiffs contend that a DOE regulation known as the "error-correction rule," 10 C.F.R. § 430.5, imposes upon DOE a non-discretionary duty to publish the standards in the Federal Register, and that its refusal to do so violates the rule. The district court agreed and issued an order directing DOE to publish the four standards in the Federal Register. Natural Resources Defense Council, Inc. v. Perry , 302 F. Supp. 3d 1094 (N.D. Cal. 2018). We stayed that order pending resolution of DOE’s appeal.
Although both sides have advanced compelling arguments in support of their respective positions, we find the plaintiffs’ arguments more persuasive. We therefore affirm the district court’s decision.
We begin with an overview of the statutory and regulatory framework. As relevant here, the Energy Policy and Conservation Act (EPCA), 42 U.S.C. §§ 6291 – 6317, authorizes DOE to establish energy-conservation standards for certain consumer products and industrial equipment. DOE establishes or amends energy-conservation standards through formal notice-and-comment rulemaking proceedings. §§ 6306(a), 6316(a). An energy-conservation standard is promulgated when DOE publishes a final rule prescribing the standard in the Federal Register.
A somewhat unusual provision of EPCA, known as the "anti-backsliding" provision, prohibits DOE from promulgating an amended standard that is less stringent than the preexisting standard. §§ 6295(o)(1), 6313(a)(6)(B)(iii)(I); see Natural Resources Defense Council v. Abraham , 355 F.3d 179, 187 (2d Cir. 2004). As DOE discovered during litigation in the Fifth Circuit, if a standard contains inadvertent errors, the anti-backsliding provision can make it difficult to correct those errors after the final rule establishing the standard has been published in the Federal Register.
In 2016, DOE sought to address this problem by adopting the error-correction rule. The rule creates a brief, 45-day window between DOE’s issuance of a final rule establishing an energy-conservation standard and the rule’s publication in the Federal Register. During that 45-day period, DOE posts the rule on its website and invites members of the public to identify any errors that should be corrected before the standard is promulgated. 10 C.F.R. § 430.5(c)(1), (d)(1). The error-correction rule defines the term "error" narrowly as "an aspect of the regulatory text of a rule that is inconsistent with what the Secretary intended regarding the rule at the time of posting," and gives as examples typographical, calculation, or numbering mistakes. § 430.5(b). Requests for correction may not be premised on "disagreement with a policy choice that the Secretary has made," and DOE will not consider any new evidence submitted in connection with a correction request. § 430.5(d)(2)–(3). As DOE explained, the error-correction process is not an opportunity to "seek to reopen issues that DOE has already addressed or argue for policy choices different from those reflected in the final rule." Establishment of Procedures for Requests for Correction of Errors in Rules, 81 Fed. Reg. 26,998, 26,999 (May 5, 2016).
The error-correction rule provides that, after the 45-day period ends, the Secretary of Energy "may respond to a request for correction ... or address an Error discovered on the Secretary’s own initiative by submitting to the Office of the Federal Register either a corrected rule or the rule as previously posted." 10 C.F.R. § 430.5(e). The error-correction rule addresses each of the three scenarios that can arise upon completion of the error-correction process, and specifies timeframes within which the Secretary "will" submit the final rule for publication in the Federal Register:
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