Nrdc v. James Perry, 940 F.3d 1072

Background

DOE adopted an "error‑correction" rule (10 C.F.R. § 430.5) in 2016 creating a 45‑day public posting period after a final energy‑conservation rule is posted on DOE’s website, during which the public may identify limited "errors."
The rule provides that after the 45‑day period the Secretary "will" submit either the posted rule or a corrected rule to the Office of the Federal Register (with a 30‑day target to submit corrected rules "absent extenuating circumstances").
In Dec. 2016 DOE posted four final energy‑conservation standards (portable air conditioners, commercial packaged boilers, uninterruptible power supplies, air compressors); the 45‑day windows closed in Jan/Feb 2017.
DOE received one minor correction request for the boiler rule and none for the other three, but declined to submit any of the four rules for Federal Register publication and continued to "review" them.
States and environmental/consumer organizations sued under EPCA’s citizen‑suit provision, 42 U.S.C. § 6305(a)(2), alleging DOE violated the non‑discretionary duty imposed by the error‑correction rule; the district court ordered DOE to publish the rules; the Ninth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 10 C.F.R. § 430.5(f) imposes a non‑discretionary duty to submit posted final rules (or corrected versions) for publication	§ 430.5(f) uses mandatory language ("will") and limits agency options to publish as posted or publish corrected rule	"Will" is descriptive, not prescriptive; the Secretary retains discretion to withdraw or refuse publication	The word "will" is mandatory; the rule unambiguously constrains the Secretary to publish either the posted rule or a corrected rule (no broader discretion to withhold publication)
Whether DOE violated § 430.5 by delaying publication beyond permitted timeframes	The rule’s timelines (30 days for corrected rules; "in due course" for uncontested rules) make 30 days the outer limit; DOE’s delay violated the rule	No mandatory publication duty exists; so no violation	DOE violated the non‑discretionary duty by delaying publication beyond the period permitted under § 430.5 (30 days is the outer limit absent extenuating circumstances)
Whether citizens may sue under 42 U.S.C. § 6305(a)(2) to enforce non‑discretionary duties imposed by regulation	"Under this part" includes regulatory duties issued under Part A; § 6305(a)(2) waives sovereign immunity for such suits	"Under this part" refers only to statutory duties, not duties created by agency regulation	§ 6305(a)(2) covers non‑discretionary duties imposed by regulations issued under the part; it supplies a clear waiver of sovereign immunity for these citizen suits
Whether courts must defer to DOE’s contrary interpretation of § 430.5	The rule’s plain language controls; agency interpretation is not owed deference here	Agency’s interpretation merits deference (agency discretion/interpretive authority)	No deference: the rule is unambiguous and DOE’s contrary reading is rejected (Kisor discussed; plain meaning governs)

Key Cases Cited

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits and explains when deference applies to agency interpretations)
Kennecott Utah Copper Corp. v. U.S. Dep't of Interior, 88 F.3d 1191 (D.C. Cir. 1996) (agency may withdraw rules before publication absent a binding constraint)
Sacks v. Office of Foreign Assets Control, 466 F.3d 764 (9th Cir. 2006) (a regulation using mandatory language imposes a non‑discretionary duty; agency need not enumerate every act it cannot take)
U.S. Dep't of Energy v. Ohio, 503 U.S. 607 (1992) (discusses clear waiver of sovereign immunity principles)
Kucana v. Holder, 558 U.S. 233 (2010) (interpreting scope of statutes that remove judicial review and distinguishing statutory vs. regulatory discretion)
Natural Resources Defense Council v. Abraham, 355 F.3d 179 (2d Cir. 2004) (discusses EPCA anti‑backsliding concerns referenced in rulemaking)
Washington v. Harper, 494 U.S. 210 (1990) (explains mandatory language interpretation)