302 F. Supp. 3d 1094
N.D. Cal.2018Background
- In Dec. 2016 DOE posted four final energy-conservation standards (portable air conditioners, air compressors, commercial packaged boilers, uninterruptible power supplies) on its website and invited public "error correction" comments under its Error Correction Rule, 10 C.F.R. § 430.5.
- The Error Correction Rule requires a 45-day public review period and then directs DOE to submit the standard to the Office of the Federal Register for publication (subsections (f)(1)-(3)).
- For three standards no corrections were requested; one had a minor typographical correction. DOE nevertheless did not submit any of the four standards to the Federal Register for over a year.
- Plaintiffs (environmental organizations and states/state agencies) sued under the Energy Policy and Conservation Act's citizen-suit provision, seeking an order compelling DOE to publish the standards.
- DOE argued (1) the citizen-suit provision does not reach regulatory duties; (2) the publication duty under the Error Correction Rule is discretionary; and (3) the Court should defer to DOE's contrary interpretation of the Rule.
- The court held DOE breached a nondiscretionary duty under the Error Correction Rule to publish the standards and granted plaintiffs summary judgment, ordering DOE to publish the standards within 28 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the EPCA citizen-suit provision allow suits to enforce regulatory duties under rules promulgated under the Act? | Citizen-suit covers duties "under this part," including regulatory obligations created by regulations. | The citizen-suit provision applies only to statutory duties, not obligations created by agency regulations. | The court held the provision covers regulatory duties authorized by Part B. |
| Does the Error Correction Rule create a nondiscretionary duty to submit posted standards to the Federal Register after the error-correction period? | The Rule's text and rulemaking history show DOE "will" submit the posted standard for publication in all scenarios—publication is automatic once the process ends. | The Rule preserves DOE's independent discretion to reassess, modify, or withdraw posted standards before formal publication. | The court held the Rule imposes a clear-cut, nondiscretionary duty to publish (or publish as corrected) once the error-correction process ends. |
| Is DOE entitled to deference (Auer) for its interpretation that publication is discretionary? | N/A (plaintiffs argued the Rule compelled publication). | DOE asked the court to defer to its interpretation under Auer/administrative deference. | The court declined Auer deference because the agency's interpretation conflicted with the Rule and its own prior statements, and appeared to be a litigating position. |
| Does the Rule's lack of a date-certain publication deadline make the publication duty discretionary as to timing? | The absence of a specific calendar deadline does not render the duty discretionary; it is a discrete, triggered obligation not involving resource allocation or policy choice. | The lack of an explicit date-certain deadline means the duty is discretionary as to timing. | The court held timing ambiguity did not make the duty discretionary here and ordered publication within 28 days. |
Key Cases Cited
- In re DBSI, Inc., 869 F.3d 1004 (9th Cir. 2017) (statutory interpretation cannot be read to preserve sovereign immunity when no plausible interpretation preserves it)
- WildEarth Guardians v. McCarthy, 772 F.3d 1179 (9th Cir. 2014) (nondiscretionary nature of a duty must be clear-cut to support a citizen suit)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of its own regulations; inapplicable when interpretation is plainly erroneous or a litigating position)
- Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir. 1987) (adopts bright-line rule that absence of a date-certain deadline renders a duty discretionary)
- Murray Energy Corp. v. Administrator of EPA, 861 F.3d 529 (4th Cir. 2017) (recognizes contexts where absence of a date-certain deadline reflects genuine agency discretion)