Natural Resources Defense Council, Inc. v. Herrington, Nos. 83-1195

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WALD and BORK, Circuit Judges, and McGOWAN; WALD
Citation768 F.2d 1355
Parties, 15 Envtl. L. Rep. 20,781 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. John S. HERRINGTON, Secretary, U.S. Department of Energy, Respondent, Hydronics Institute, et al., Florida Department of Community Affairs, Intervenors. CALIFORNIA STATE ENERGY RESOURCES CONSERVATION AND DEVELOPMENT COMMISSION, Petitioner, v. DEPARTMENT OF ENERGY, and John S. Herrington, Secretary of the Department of Energy, Respondents, Hydronics Institute, et al., Florida Department of Community Affairs, Intervenors. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. John S. HERRINGTON, Secretary, U.S. Department of Energy, Respondent, State of Texas, Association of Home Appliance Manufacturers, Whirlpool Corporation, et al., Air Conditioning and Refrigeration Institute, Gas Appliance Manufacturers Assoc., Hydronics Institute, et al., Florida Department of Community Affairs, Intervenors. CALIFORNIA STATE ENERGY RESOURCES CONSERVATION AND DEVELOPMENT COMMISSION, Petitioners, v. DEPARTMENT OF ENERGY, and John S. Herrington, Secretary of the Department of Energy, Respondents, Association of Home Appliance Manufacturers, Whirlpool Corporation, Gas Appliance Manufacturers Assoc., Air-Conditioning and Refrigeration Institute, Intervenors. The STATE OF MINNESOTA, by its Attorney General, Hubert H. HUMPHREY III, Petitioner, v. The UNITED STATES DEPARTMENT OF ENERGY, John S. Herrington, Secretary, Respondent. STATE OF NEW YORK, Petitioner, v. UNITED STATES DEPARTMENT OF ENERGY, Respondent, Whirlpool Corporation & Heil-Quaker Corporation, Air-Conditioning and Refrigeration Institute, Gas Appliance Manufacturing Assoc., Association of Home Appliance Manufacturers, Intervenors.
Docket Number83-2318,83-2128,Nos. 83-1195,83-2117,83-2319 and 84-1055
Decision Date16 July 1985

Page 1355

768 F.2d 1355
247 U.S.App.D.C. 340, 15 Envtl. L. Rep. 20,781
NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,
v.
John S. HERRINGTON, Secretary, U.S. Department of Energy, Respondent,
Hydronics Institute, et al., Florida Department of Community
Affairs, Intervenors.
CALIFORNIA STATE ENERGY RESOURCES CONSERVATION AND
DEVELOPMENT COMMISSION, Petitioner,
v.
DEPARTMENT OF ENERGY, and John S. Herrington, Secretary of
the Department of Energy, Respondents,
Hydronics Institute, et al., Florida Department of Community
Affairs, Intervenors.
NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners,
v.
John S. HERRINGTON, Secretary, U.S. Department of Energy, Respondent,
State of Texas, Association of Home Appliance Manufacturers,
Whirlpool Corporation, et al., Air Conditioning and
Refrigeration Institute, Gas Appliance Manufacturers Assoc.,
Hydronics Institute, et al., Florida Department of Community
Affairs, Intervenors.
CALIFORNIA STATE ENERGY RESOURCES CONSERVATION AND
DEVELOPMENT COMMISSION, Petitioners,
v.
DEPARTMENT OF ENERGY, and John S. Herrington, Secretary of
the Department of Energy, Respondents,
Association of Home Appliance Manufacturers, Whirlpool
Corporation, Gas Appliance Manufacturers Assoc.,
Air-Conditioning and Refrigeration
Institute, Intervenors.
The STATE OF MINNESOTA, by its Attorney General, Hubert H.
HUMPHREY III, Petitioner,
v.
The UNITED STATES DEPARTMENT OF ENERGY, John S. Herrington,
Secretary, Respondent.
STATE OF NEW YORK, Petitioner,
v.
UNITED STATES DEPARTMENT OF ENERGY, Respondent,
Whirlpool Corporation & Heil-Quaker Corporation,
Air-Conditioning and Refrigeration Institute, Gas
Appliance Manufacturing Assoc.,
Association of Home Appliance
Manufacturers, Intervenors.
Nos. 83-1195, 83-2117, 83-2128, 83-2318, 83-2319 and 84-1055.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 14, 1985.
Decided July 16, 1985.
As Amended July 16, 1985.

Page 1360

Petitions for Review of Final Rules of the Department of energy.

Alan S. Miller, Washington, D.C., with whom David B. Edelson, San Francisco, Cal., and William B. Churchill, Austin, Tex., were on brief, for petitioners Natural Resources Defense Council, et al.

Jonathan Blees, Sacramento, Cal., with whom William M. Chamberlain, Gregory Wheatland, Sacramento, Cal., Thomas Barrett, Robert Abrams, Peter Bienstock and Samuel A. Cherniak, New York City, were on brief, for petitioners Cal. State Energy Resources Conservation and Development Com'n.

Susan V. Cook, Atty., Dept. of Justice, Washington, D.C., for respondent John S. Herrington, Secretary, Dept. of Energy.

Paul M. Laurenza and John A. Hodges, Washington, D.C., with whom William C. Brashares, Charles A. Samuels, Washington, D.C., Louis R. Paulick, Pittsburgh, Pa., Patricia J. Beneke, Washington, D.C., and Theodore F.T. Corlius, were on brief, for intervenors Ass'n of Home Appliance Mfrs., et al. Edward W. Hengerer, John H. Korns, Stephen O. Houck and W. DeVier Pierson, Washington, D.C., entered appearances for intervenors Ass'n of Home Appliance Mfrs., et al.

Paul Sexton, Tallahassee, Fla., was on brief and Bruce W. Renard, Tallahassee,

Page 1361

Fla., entered an appearance for intervenor Fla. Dept. of Community Affairs.

Douglas E. Kliever, Washington, D.C., entered an appearance for intervenors Hydronics Institute, et al., in Nos. 83-1195 and 83-2117.

David R. Richards and William B. Churchill, Austin, Tex., entered appearances for intervenor State of Texas.

William F. Gary, Salem, Or., was on brief for amicus curiae State of Or. urging reversal in Nos. 83-1195, 83-1195, 83-2117, 83-2128, 83-2318 and 83-2319.

Frank W. Ostrander, Portland, Or., William R. Cook, Bernard Nash and Edward G. Modell, Washington, D.C., were on brief for amicus curiae Northwest Power Planning Council urging reversal in Nos. 83-1195, 83-2117, 83-2128 and 83-2319.

Diane L. McIntire, Washington, D.C., entered an appearance for amicus curiae Iowa State Commerce Com'n urging reversal in Nos. 83-1195, 83-2117, 83-2128, 83-2318 and 83-2319.

Before WALD and BORK, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WALD.

 CONTENTS
                 Page
                 I. BACKGROUND ......................................................... 1364
                 II. DOE'S DEFINITION OF "SIGNIFICANT CONSERVATION OF ENERGY" ........... 1369
                 A. The Development of DOE's Definition ............................. 1369
                 B. The Validity of DOE's Definition ................................ 1372
                 C. DOE's Rationale for its Definition .............................. 1377
                III. DOE'S METHOD OF DETERMINING SAVINGS THAT WOULD RESULT FROM
                 STANDARDS .......................................................... 1383
                 A. Statutory Authority for Subtracting "Base-Case" Savings from
                 "Standards" Savings ......................................... 1384
                 B. The ORNL Model .................................................. 1385
                 IV. MAXIMUM TECHNOLOGICAL FEASIBILITY .................................. 1391
                 A. The Statute ..................................................... 1391
                 B. DOE's Treatment of Maximum Technologically Feasible Levels ...... 1392
                 C. DOE's Compliance with EPCA ...................................... 1394
                 1. DOE's Failure to Determine Maximum Technologically Feasible
                 Levels ..................................................... 1394
                 2. DOE's Refusal to Consider Standards Based on All
                 Technologically Feasible Design Options .................... 1396
                 a. Prototypes .............................................. 1396
                 b. Foreign Market Design Options ........................... 1403
                 c. The Five-Year Payback Period ............................ 1404
                 d. Lead Times .............................................. 1407
                 e. Specific Design Options ................................. 1408
                 3. DOE's Reliance on 1980 Data ................................. 1408
                 V. ECONOMIC JUSTIFICATION ............................................. 1410
                 A. DOE's Analysis of Benefits ...................................... 1410
                 1. DOE's Discussion of the Nation's Need to Save Electricity
                 and Energy Savings ......................................... 1410
                 2. DOE's Use of a 10 Percent Real Discount Rate ................ 1412
                 3. DOE's Calculation of Benefits from Central Air Conditioner
                 Standards .................................................. 1414
                 a. Possible Reduction of Peak Load Electrical Demand ....... 1414
                 b. Failure to Consider High-Efficiency Models .............. 1417
                 c. Flaws in Cost Efficiency Curve .......................... 1418
                 d. Hours of Operation ...................................... 1418
                 B. DOE's Analysis of Burdens ....................................... 1419
                 1. The Financial Impacts Model ................................. 1419
                 2. The FIM Results for Central Air Conditioner Standards ....... 1422
                 3. Forgone Investment and Reductions in Performance or Utility . 1424
                 C. DOE's Weighing of Burdens Against Benefits ...................... 1425
                 VI. DOE's REFUSAL TO ALLOW CROSS-EXAMINATION ........................... 1425
                VII. DOE's FAILURE TO PREPARE AN ENVIRONMENTAL ASSESSMENT OR
                 ENVIRONMENTAL IMPACT STATEMENT ..................................... 1429
                

Page 1362

WALD, Circuit Judge.

The petitions in these consolidated cases require us to interpret section 325 of the Energy Policy and Conservation Act (EPCA or the Act), 42 U.S.C. Sec. 6295, which was enacted in 1975 as part of a "comprehensive national energy policy." S.Rep. No. 516, 95th Cong., 1st Sess. 116 (1975), U.S.Code Cong. & Admin.News 1975, p. 1762 (conference report). In its initial version, section 325 required the Federal Energy Administrator to prescribe energy efficiency improvement targets for thirteen named household appliances, called "covered products." See EPCA Sec. 325(a)(1)-(2), Pub.L. No. 94-163, 89 Stat. 871, 923-24 (1975). 1 If the Administrator determined that manufacturers of any of the covered products were not likely to achieve the aggregate gain in efficiency specified in the target by 1980, he was directed to begin a proceeding to prescribe a mandatory "energy efficiency standard" for that appliance. See id. Sec. 325(a)(4)(A)-(B), 89 Stat. at 924.

In 1978, however, Congress amended EPCA to "eliminate[ ] the target approach and improve[ ] the procedures for establishing standards to ensure that efficiency improvements will be made expeditiously." H.R.Rep. No. 496, Pt. 4, 95th Cong., 1st Sess. 46 (1977), U.S.Code Cong. & Admin.News 1978, pp. 7659, 8493; see National Energy Conservation Policy Act (NECPA) Sec. 422, Pub.L. No. 95-619, 92 Stat. 3206, 3259 (1978). The amended version of section 325(a) orders the Secretary of Energy to prescribe energy efficiency standards for the thirteen covered products without first establishing industry targets. Under the Act, "[e]nergy efficiency standards for each type (or class) of covered products ... shall be designed to achieve the maximum improvement in energy efficiency which the Secretary determines is technologically feasible and economically justified." EPCA Sec. 325(c). If the Secretary prescribes a standard at a level lower than the maximum technologically feasible level, the Secretary must explain why that lower level was chosen. Id. Sec. 325(i)(3). The Act also declares that if, for any type or class of covered product, 2 a standard would not

Page 1363

result in significant conservation of energy or would not be technologically feasible or economically justified, the Secretary shall not prescribe a standard. Id. Sec. 325(b). A determination that no standard is warranted for a particular appliance, like the issuance of a mandatory standard, preempts any state-law efficiency requirements for the appliance, although the state may then apply to the Secretary for an exemption from the preemption provision. Id. Secs. 325(b), 327. The Secretary was further instructed to give priority in formulating standards to nine of the covered products. Id....

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64 practice notes
  • Air Conditioning & Refrig. v. Energy Resources, No. 03-16621.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 3, 2005
    ...of the oil embargo imposed against the United States by certain countries in the years prior. Natural Res. Def. Council v. Herrington, 768 F.2d 1355, 1364 (D.C.Cir.1985). The oil embargo called attention to the serious economic and national security problems associated with our nation's con......
  • Center for Auto Safety v. National Highway Traffic Safety Admin., No. 85-1231
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 20, 1986
    ...(elimination of requirement for passive restraint systems). In addition, in Natural Resources Defense Council, Inc. v. Herrington, 768 F.2d 1355 (D.C.Cir.1985), this court recently reached the merits, without any hint of standing difficulty, in a challenge to the Department of Energy's fina......
  • Air Cond. and Refrig. v. Energy Resources Conserv., No. 03-16621.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 3, 2005
    ...of the oil embargo imposed against the United States by certain countries in the years prior. Natural Res. Def. Council v. Herrington, 768 F.2d 1355, 1364 (D.C.Cir.1985). The oil embargo called attention to the serious economic and national security problems associated with our nation's con......
  • Natural Resources Defense Council v. Abraham, No. 01-4102.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 13, 2004
    ...degree residential energy use, and specifically residential appliances, contributed to overall domestic energy use); NRDC v. Herrington, 768 F.2d 1355, 1365 (D.C.Cir.1985) (describing program). The Act initially sought to achieve this goal through a voluntary market-based approach, requirin......
  • Request a trial to view additional results
48 cases
  • Air Conditioning & Refrig. v. Energy Resources, No. 03-16621.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 3, 2005
    ...of the oil embargo imposed against the United States by certain countries in the years prior. Natural Res. Def. Council v. Herrington, 768 F.2d 1355, 1364 (D.C.Cir.1985). The oil embargo called attention to the serious economic and national security problems associated with our nation's con......
  • Center for Auto Safety v. National Highway Traffic Safety Admin., No. 85-1231
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 20, 1986
    ...(elimination of requirement for passive restraint systems). In addition, in Natural Resources Defense Council, Inc. v. Herrington, 768 F.2d 1355 (D.C.Cir.1985), this court recently reached the merits, without any hint of standing difficulty, in a challenge to the Department of Energy's fina......
  • Air Cond. and Refrig. v. Energy Resources Conserv., No. 03-16621.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 3, 2005
    ...of the oil embargo imposed against the United States by certain countries in the years prior. Natural Res. Def. Council v. Herrington, 768 F.2d 1355, 1364 (D.C.Cir.1985). The oil embargo called attention to the serious economic and national security problems associated with our nation's con......
  • Natural Resources Defense Council v. Abraham, No. 01-4102.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 13, 2004
    ...degree residential energy use, and specifically residential appliances, contributed to overall domestic energy use); NRDC v. Herrington, 768 F.2d 1355, 1365 (D.C.Cir.1985) (describing program). The Act initially sought to achieve this goal through a voluntary market-based approach, requirin......
  • Request a trial to view additional results
2 books & journal articles
  • Lighting, Appliances, and Other Equipment
    • United States
    • Legal pathways to deep decarbonization in the United States Part III - Energy Efficiency, Conservation, and Fuel Switching in Buildings and Industry
    • March 24, 2019
    ...3cb2-49ac-9177-d60629e8c1ee/. 30. Natural Res. Def. Council v. Herrington, 768 F.2d 1355, 1421, 15 ELR 20781 (D.C. Cir. 1985) (discussing the history of appliance eiciency rulemaking during President Ronald Reagan’s irst term). 31. Id . 32. Id . at 1368. 33. Id . NRDC again iled suit, chall......
  • Proposed Revisions to Improve and Modernize CEQ's NEPA Regulations
    • United States
    • Environmental Law Reporter Nbr. 49-6, June 2019
    • June 1, 2019
    ...in dictum from the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit in Natural Res. Def. Council, Inc. v. Herrington , 768 F.2d 1355, 1431, 15 ELR 20781 (D.C. Cir. 1985). Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, htt......

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