Air Conditioning & Refrigeration Institute v. Energy Resources Conservation & Development Commission

unless the error is resentencing, for case AND REFRIG- AIR CONDITIONING Mashek, 406 F.3d one.

harmless INSTITUTE; Appli- Gas ERATION if it is clear harmless An error Association; Manufacturers court ance that the district record from the Appliance the same defendant Home given the Association would have Manufacturers; Electrical guidelines National of which regardless sentence Association, States v. Bas Plain- United range applied. See Manufacturers Cir.2005) (8th sett, (per tiffs-Appellees, 406 F.3d curiam). v. that here is no indication There a 44- given Staples Mr. court would have CONSERVA- ENERGY RESOURCES guide- regardless of what month sentence COM- AND TION DEVELOPMENT court did not sen- applied: the range MISSION; Keese, lines Chair- William J. in the between Staples overlap Mr. Commissioner; tence man; Pernell, Robert ranges guidelines incorrect the correct and Commissioner; Rosenfeld, Aurthur H. (41 did imprisonment) months’ Commissioner; Boyd, John D. James guidelines suggest otherwise Commissioner, Geesman, Defen- L. On to its sentence. range was irrelevant dants-Appellants. then, us, con- we cannot

the record before No. 03-16621. affect did not that the miscalculation clude sen- selection of the the district court’s Appeals, States Court United and we thus remand imposed, tence Ninth Circuit. v. resentencing. See Williams case for 193, 203, States, 112 S.Ct. United U.S. Nov. Submitted Argued Mashek, (1992); 117 L.Ed.2d 341 3, 2005. Opinion Filed Feb. F.3d at 1020. address concluding, briefly we Before 3, 2005. Amended June sentence argument his Staples’s Mr. interpret this Blakely. We

runs afoul States argument pursuant an United — U.S.-, 738,160 Booker, (2005),

L.Ed.2d 621 and conclude remand already decided to

moot. We have resentencing, and case for Staples’s

Mr. necessarily resen- court will district Booker. See id.

tence him in accord

at 769.

TV. reasons, we affirm

For the stated above Staples’s

Mr. convictions and remand resentencing.

case Chamberlain, Jonathan

William M. Kramer, Schwebs, Blees, Paul A. Monica III,-Sacramen- Jr., W. William Westerfield CA, to, appellants. for the McDonald, Bruce L. Hodges, A. John Wasylik, Peter J. Dineen Pashoukos LLP, Riehm, Fielding Wiley & Rein D.C., appellees. for the Washington, NOONAN, FLETCHER, Before: B. THOMAS, Judges. Circuit AMENDED OPINION THOMAS, Judge. Circuit question presents This case preempts California’s whether federal law appliance regulations requiring appliance data about submit Energy Re- appliances California’s Development sources Conservation (“Commission”), mark their Commission information such appliances basic energy performance, name and brand subjected compliance to related be fed- conclude that enforcement rules. We reg- California’s preempt eral law does not reverse the district ulations. We therefore regulations finding the court’s decision enjoining the permanently California. The district court held that the enforcing regula- from these California preempted. Commission are tions, injunction, court, vacate the and remand. preliminarily first per- and then

manently, enjoined the Commission from I enforcing regulations. The Commis- timely sion appealed. an and lauda California boasts extensive efficiency program. appliance part ble As We review the district court’s de program, of California’s the Commission novo, cision regarding preemption de has, 1977, required since manufacturers to Chamber Commerce Lockyer, submit data to it. The data collected (9th Cir.2004), F.3d and the pursuant 1606 Commission section district grant permanent injunc court’s of 20 Regu Title of the California Code of discretion, tion for abuse of Ting v. AT & in lations is maintained an electronic data T, (9th 1126, Cir.2003). 319 F.3d 1134-35 base, which contains information on over 135,000 appliance models. The Commis II provided sion’s database the foundation of Preemption can occur in one of the Environmental Protec ways: express three pre-emption by stat Agency’s program Star and is ute, field, occupation of the consumers, conflict be frequently used con tween state sultants, regulation. and federal En contractors, researchers, utility Co., glish 72, v. General Elec. 496 manufacturers, U.S. 78- program managers, 79, (1990). 2270, 110 S.Ct. 110 L.Ed.2d 65 other governmental agencies. part As All parties agree presents that this case a appliance program, California’s the Com Thus, question express preemption. put mission also manufacturers to this down to the interpretation case boils basic information —such as manufac statutory of the provision allegedly that turer’s brand name and the appliance’s Medtronic, preempts law. Inc. v. energy performance ap size and —on Lohr, 470, 484, 2240, 518 116 20, U.S. S.Ct. pliances. (1996); 1607(b)-(d)(2). Cipollone Lig 135 L.Ed.2d 700 v. The Commission en Inc., 504, 517, gett Group, 505 112 U.S. marking forces the data submittal and re 2608, 120 S.Ct. L.Ed.2d 407 quirements places un 20, der section 1608. Cal.Code To determine whether regu- California’s § 1608. EPCA, pre-empted by lations are we are “ Plaintiffs-Appellees, major four ‘identify trade instructed to the domain first organizations representing appliance expressly pre-empted’ by language.” man- (“Trade Medtronic, 484, ufacturers nationwide Associa- 518 at 116 2240 U.S. S.Ct. tions”), 517, claim that regula- (quoting Cipollone, these California at U.S. 2608). preempted by Energy Policy tions are pre-emption S.Ct. “Since claims Act, intent, Congress’s begin Conservation Pub. Law No. 94- turn on we as we 163, (“EPCA”), specifi- statutory 89 Stat. 871 do exercise of construc- 6297(a) 6316(a)- §§ cally by 42 provision ques- tion with the text of the (b). tion, son, be, adopted After these were and move as need to the effect, they purpose but before went into Trade structure and of the Act which declaratory Associations filed suit for and it occurs.” New York State Conference of injunctive relief in the Dis- Blue v. Travel- United States Cross & Blue Shield Plans Co., 645, 655, trict for the Court Eastern District ers Ins. U.S. S.Ct. Medtronic, 116 S.Ct. (1995) (internal 518 U.S. cita 1671, 131 L.Ed.2d omitted). “As (internal marks quotations omitted). tions scope result, understanding of a of the interpretation Our primarily rest statute must pre-emption presumptions by two informed statute congressional understanding of fair on ‘a Medtron preemption. the nature of about 485-86, 116 S.Ct. 2240 Id. at purpose.’” First, ic, S.Ct. 518 U.S. n. U.S. (quoting Cipollone, 505 preemption with claims of address we omitted). 2608) (emphasis 112 S.Ct. did Congress starting presumption of the relevant to our Id. state law. Also supplant intend are the preemption of the statute’s here, regu scope Where, the State is the case as purpose statute history “structure there no in an area where lates text, whole, only in the but as revealed not presence, United significant understanding reasoned Locke, through [our] States intended the (2000),1 way which we assume L.Ed.2d 69 surrounding regulatory and its statute police powers the “historic consumers, business, affect by the scheme to superseded not to be were States (inter- 486, 2240 116 S.Ct. and Id. was the clear the law.” that Act unless Federal omitted). marks quotation and (quot Id nal citation Congress.” of purpose manifest Corp., 331 Fe Elevator ing Rice v. Santa 1146, 230, 91 1447 218, L.Ed. 67 S.Ct. U.S. Ill against pre (1947)). presumption This Thus, language turn to the we principle the that ex us to emption leads at issue. provision express preemption statutory provisions preemption

press part: in provides, § relevant U.S.C. interpretation. a narrow given be should 518, Id.; U.S. Cipollone, 505 (a) Preemption testing of 2608. requirements 1987, this Effective on March

Second, scope of analysis of the our in- any regulation part supersedes State by the guided preemption statute’s the provides regulation as such State that sofar oft-stated comment Supreme Court’s of infor- time for the disclosure any Congress is the ultimate of purpose “the any measure of respect mation with every pre-emption case.” in touchstone Honolulu, County 276 F.3d legisla- City (discussing & III.A Compare Part 1. of infra Locke, Cir.2002) EPCA), (9th (finding presumption history 529 U.S. at of with tive (finding presumption apply the ae- 120 S.Ct. 1135 not where against preemption does apply against does not where the preemption targeted specifically signage rial ordinance the enacted the area federal interest in navigable airspace, area where there an in, navigation, legislation "has been interstate presence). history significant of federal Repub- beginning of our manifest since the lic”), (finding that Ting; F.3d at 1136 6316(a)-(b), preemp- § other 2. against preemption does not presumption case, incorpo- provision at issue in this long history apply of "because of 6297(a) § with a few subtle distinctions rates long-distance regulating telecom- presence in this case. are not relevant to munications”), City & Am. v. Bank 6316(a)-(b) in- commercial and § relates to Francisco, County 309 F.3d San 6297(a) § relates appliances whereas dustrial Cir.2002) (9th presumption (finding that the Hereinafter, appliances. when to residential apply against preemption does because so, 6297(a), doing § 42 U.S.C. in we refer presence history significant 6316(a)-(b). we refer to also Int'l, Skysign banking), Inc. national energy consumption any quired or water use under section 6294.” The district 6297(a), if— product covered court found the text of in partic- meaning ular the of the phrase “disclosure (A) regulation requires such State test- information,” ambiguous, and so do we. ing any energy or the use of measure of use, consumption, water or des- Beginning with the presumption that manner other than that criptor Congress did not supplant intend to ti- provided under section 62933 this law, 6297(a) narrowly we interpret must tle; or general, and the “disclosure of Medtronic, (B) particular. information” See regulation requires such State dis- 518 U.S. at A S.Ct. 2240. narrow closure of information with interpretation is consistent our di use, energy efficiency, rection preemption to find when preemp product water use of covered other “clear, tion is the purpose manifest than information under section Congress.” Id. interpretation The narrow 6294 of this title. supported by Commission advances is 42 U.S.C. statutory text and is consistent with Regulations A. Data Submittal Congress’s purpose. Applying a narrow 6297(a), §of we hold that it regulation The first California not preempt the data submittal 6297(a) re does arguably 42 U.S.C. preempts is quirements contained in Regs, CaLCode which re 20, § quires appliance manufacturers to submit specified information to the Commission of statutory rules construction appliance for each for sale or sold in Cali support the interpretation narrow of “dis

fornia. Such information includes the closure of information.” One rule of statu manufacturer, name of the the brand tory construction is “identical words name, number, the model and data pro parts used in different of the same act are during duced tests the manufacturer intended to have meaning.” the same perform to under Regs, Commissioner Internal Revenue v. 20, 20, § tit. 1604. See Cal.Code 235, 250, 647, Lundy, 516 U.S. 116 S.Ct. 1606(a), §§ Table U. (internal 133 611 L.Ed.2d citations and omitted). quotation

To determine whether 42 phrase U.S.C. marks The 6297(a) § preempts the data submittal re- “disclosure of information” is used twice in 6297(a)(1) 20, quirements § of CaLCode given and should be the same 6297(a). 1606, § § we look to the text meaning both instances. In 6297(a) 6297(a)(1), preempts any regula- § Section “disclosure of information” concerns, provides any any “at time for the respect information with to disclosure of information respect with to measure of or energy consumption water any energy 6297(a)(1)(B), § measure of consumption or use. In of in “disclosure product water use of if ... requires covered formation” regulation such place disclosure certain consumer-di labels, of information product required by with the rected use, energy efficiency, § § or water In use 6294. See U.S.C. product instances, than covered other information re- both of information” “disclosure § appli- appli- 42 U.S.C. 6293 establishes federal 4. 42 U.S.C. 6294 establishes federal testing requirements. labeling requirements. ance ance addition, interpretation narrow In the refer to generally interpreted to may be fair rests on “a of information” “disclosure on labels di- of information disclosure congressional purpose” understanding of or point of sale use. rected to consumers legislative by the relevant as evidenced interpretation Thus, narrow 485-86, Medtronic, 518 U.S. history. 6297(a)(1) statutory by the supported (quoting Cipollone, ap- 116 S.Ct. should be text, interpretation and this 2608) (internal n. plied. omitted). emphasis marks and quotation Furthermore, as a whole the statute current original The version of “disclo- a narrow compels first provision was testing pre-emption Congress did not information.” sure of EPCA, 94- Pub. Law No. in the enacted of information” “disclosure phrase use the ap- purpose Its 89.Stat. manufactur- it referenced in EPCA when unchanged since then. pears to be Department data to providing ers instead, Congress enacted EPCA (“DOE”); Congress used imposed embargo oil re- aftermath information or “submit phrase 6296(d). by certain coun against the United States 42 U.S.C. ports.” Res. years prior. Natural 6296(d) appli- tries require allows the DOE Def. Herrington, 768 F.2d the DOE Council provide manufacturers to ance (D.C.Cir.1985). at embargo oil efficiency. called information about with nation economic and tention to the serious 6296(d) in rele provides, 42 U.S.C. our security problems al associated ... may require Secretary “the part, vant foreign reliance on en nation’s continued product to of a covered each manufacturer response, In Presi ergy resources. Id. to the Sec reports submit information strongest called for “the dent Ford 6296(d)(1).(emphasis add retary.” Id. far-reaching energy conservation most ed). referred to the sub Congress When (quoting had.” Id. program we have ever entity in government to a of data mittal (Jan. Pres. Doc. Weekly Comp. EPCA, infor “submit used 1975)) (internal marks quotation omit in reports,” “disclosure mation or ted). Subsequently, enacted a whole does The statute as formation.” so, EPCA, a doing and in established com “dis a of support broad not Id. prehensive energy policy. contrary, the of information.” On closure part, to reduce designed, was of information” EPCA suggests that it “disclosure energy con- the “domestic labeling directed to con United States’ only pertains to operation specific the of sumption through or use.5 point sale sumers "Required heading under the Disclosures.” interpretation of the 5. The narrow 305.8, supported manufacturers Section which is also "disclosure of information” listing report a annually to the FTC by regulations. 16 C.F.R. to submit the relevant FTC energy energy consumption or effi- regarding the annual regulations the Part 305 establishes rating ciency for basic model in labeling appliances each current consumer-directed and accurately appli- production, “Submission data.” testing required label titled the regulations use "disclosure” to refer 305 also The FTC pt. C.F.R. 305. Part ances. 16 labeling and to consumer-directed "submis- regulations to the form pertaining includes .14, labels, govern- a to data-submittal to §§ sion” to refer the and and content of 305.11— Therefore, regulations, entity. perform the FTC testing ment must the EPCA, to refer to con- regarding like use "disclosure” order to label with use, labeling and or efficiency sumer-directed "submission” energy appliances’ the to data-submittal pertaining to "submit” refer §§ The sections the 305.5-.10. government. are clustered form and contents of labels mandatory voluntary energy Secretary and conserva found significant there was a 94-516, programs.” S.Rep. No. at 117 state or local justify interest to the state’s (1975), reprinted 1975 U.S.C.C.A.N. regulation regulation and the would not n energy 1957. Part of EPCA’s conser unduly burde interstate commerce. program was to “[r}equire vation 424(a), NECPA 92 Stat. at 3264. NEC major home appliances and cer PA did amend preemption EPCA’s products, tain other consumer and author provisions regarding testing or labeling. energy efficiency major ize standards for Id. Id. at appliances.” be scale, larger On a NECPA created a lieved that better informed consumers and nationwide conservation program appli- for voluntary efforts manufacturers would ances and prescribe the DOE to energy efficiency make standards unneces minimum energy efficiency standards for 94-340, (1975), sary. Rep. H. No. at 95 thirteen covered products. Herrington, in 1975 reprinted U.S.C.C.A.N. 1367; 768 F.2d at see H.R.Rep. No. 95- Therefore, Congress required manufactur (1978). However, at 114 15 instead appliances ers to label their provided adopting standards, energy efficiency Secretary of the Federal DOE concluded 1982 that establish- Administration should utilize effi ing minimum energy efficiency standards ciency standards if labeling program appliances the relevant would not re- result, proved ineffective. Id. at 99. As a sult in significant energy conservation and express preemption provisions EPCA’s economically justified. would not be primarily possibility dealt with the 100-11, Thus, H.R.Rep. No. at 27. adopt proce states would different test efficiency DOE determined no standards labeling requirements. dures or consumer were required under NECPA. Id. “While 94-163,

See Pub. No. Law 89 Stat. adopted policy DOE its of the ‘no-stan- 871, 926-27. reg EPCA standards, dard’ general also initiated a they ulations insofar as were “other than” policy granting petitions from States applicable for testing rules requesting from preemption. waivers As a 327(a)(1), labeling. Id. 89 Stat. at 927. result, system separate appli- EPCA, however, regulations allowed state begun ance standards to emerge ha[d] regulations differed from the federal growing.” the trend S.Rep. [was] No. if justified by the state were 100-6, at 4. The D.C. Circuit held that the need, substantial state or local did not erroneously DOE concluded that “nostan- commerce, interfere with interstate dard” standards in- appropriate was stringent were more than the federal stan structed the to adopt DOE federal efficien- 327(b)(2), dard. Id. 89 Stat. at 927. cy Herrington, standards. 768 F.2d The National Conservation and Act, 95-619, Policy Pub.L. No. 92 Stat. Because the DOE could not establish (“NECPA”), portions 3206 amended appliance efficiency federal standards im- preemption provisions. of EPCA’s States major mediately, manufacturer trade as- adopt regulations were still allowed to sociations and the Natural Resources De- identical to federal regulations. See 327(a)(2), negotiated compromise fense Council a EPCA 89 at 927. Stat. States solution, Congress which enacted as the prescribe regulations were allowed to more stringent regulations or, Appliance Energy than federal if National Conservation — 100-12, regulation, there was no federal Act of No. 101 state Pub.L. Stat. (1987) (“NAECA”), implement only could its own if 42 codified at standard — amending EPCA is legislation The latest H.R.Rep. No. 100- §§ 6291-6309. U.S.C. Pub.L. No. Energy Policy Act 100-6, 4-5, 27-28; No. S.Rep. (1992) (“EPAct”), 102-486, 106 Stat. 52, 54-55. 1987 U.S.C.C.A.N. reprinted in 6311-17, §§ which U.S.C. codified energy effi- established NAECA appliance program the federal expanded appli- for residential ciency standards efficiency standards include required ances; action was DOE appliances. and industrial commercial 5,§ NAECA these standards. set EPAct incor- 6295(j)-(k), §§ U.S.C. at 107-17. Stat. provisions of preemption porated the a few subtle distinc- U.S.C. pre NECPA’s also amended NAECA tions, to this case. are not relevant which provided NAECA emption provisions. 6316(a)-(b). legisla- EPAct’s 42 U.S.C. longer adopt energy no could that states history preemption. tive is silent on identical to that were efficiency standards sum, history of the legislative In 42 U.S.C. standards. interpre a narrow supports Acts relevant 6297(c). it more dif made NAECA also provision. There preemption of the tation pre waivers of to obtain ficult for states pre in the Congress, indication is no efficiency stringent state for more emption amended EPCA as emption provision of waiver, standards; order to obtain Acts, preempt intended to by subsequent by a to establish states NAECA the submission regulations requiring state that state evidence preponderance agencies. government to state of data and justified by unusual regulation was history instead demon legislative local interests. state or compelling preempt intended to strates that 6297(d)(1)(B)-(C); S.Rep. see No. standards, testing efficiency state 100-6, for the broader The reason at 9. procedures, and consumer re was to counteract preemption standards conclude that quirements. We therefore appliance systems separate only of information” because “disclosure a result of emerged had standards labeling at refers to consumer-directed granting peti “general policy the DOE’s use, Regs. tit. point of sale or from waivers requesting from States tions by 42 preempted § 1606 is not man appliance preemption,” which caused 6297(a)(1).6 grow with “a confronted ufacturers to be Marking Regulations B. differing regula ing State patchwork regula- of California’s increasingly complicate The second set tions which would argue is tions the Trade Associations marketing and production design, appli- are the by federal law 100-6, at 4. As for the No. plans.” S.Rep. of sections ance-marking requirements testing regarding preemption provisions (d)(2) 1607(b), (c), (d)(1), Title 20 NAECA, “essentially re labeling, Regulations. the California Code law, provide[d] existing state[d] regula (c)8 and local supersedes 1607(b)7 the Act of Title Section labeling in cer testing Regulations— regarding tions of the California Code to be labeled with require appliances which at 9. tain cases.” Id. (c), Regs. Except provided as in subsection tit. We that Cal.Code also hold by preempted 42 U.S.C. following permanently, § riot 1606 is shall be 6316(a)-(b), substantively the same § which is displayed on legibly, an conspicuously and 6297(a)(1). §as unit; place each accessible on 1607(b) provides: § 7. Cal.Code name, name, cost,

the manufacturer’s brand or or other operating estimated annual trademark; number; appliance’s model energy measure consumption.” and date of manufacture —are 6291(8) added). § U.S.C. (emphasis We by because the sub- law decline to interpret “other measure en- “providef any do not at ] sections time ergy consumption,” only relevant term respect the disclosure of information with statute, left undefined in the broadly so any energy consumption to measure of or it encompasses the information re- product.” water use of covered 42 quired placed to be on appliances under 6297(a)(1).9 § The information re- 1607(b) (c). California’s sections and Un- quired appliances to placed be under der the maxim statutory 1607(b) (c) is not “information section ejusdem generis, known as “or other mea- respect energy measure of sure of energy consumption” embraces consumption or water use” unless one ex- only objects similar in nature to those pansively interprets “with to” and by enumerated preceding specific energy consumption,” “measure Stores, City Circuit Inc. v. words. 6297(a)(1). § In accordance with Adams, 105, 114-15, the presumptions informing interpre- our 149 L.Ed.2d 234 “Or other tation express preemption provisions, energy measure of consumption” must be interpret narrowly we these terms as such to give construed effect to pre- the terms an interpretation is consistent with the ceding by and must be defined statutory text. reference to it. Id. preceding the terms energy Therefore,

“Measure of consumption” is de- S.Ct. 1302. “or other use, fined “energy energy efficiency, of energy measure consumption” does not (1) energy consumption” manufacturer’s name or brand name or 9. "Measure of is de- trademark; use, "energy energy efficiency, fined as esti- (2) number; model cost, operating mated annual or other mea- manufacture, (3) (i) indicating year date of energy consumption." sure of 42 U.S.C. (ii) (e.g.weelc) month or smaller incre- 6291(8). "Energy use” is defined as "the ment. If the date is in a code that is not quantity energy directly consumed readily layperson, understandable to the product point consumer of use....” Id. immediately, manufacturer shall on re- 6291(4). "Energy efficiency” is defined as quest, provide the code to the Com- output ratio of "the the useful of services from mission. product a consumer to the use of such 1607(b). §Id. 6291(5). product....” Id. "Estimated an- 1607(c), 8. Cal.Code titled "Ex- operating aggre- nual cost” is defined as "the (b),” ceptions provides, to Subsection in rele- gate likely retail cost of the which is part: vant annually, be consumed and in the case of (1) plumbing plumbing For fixtures and fit- showerheads, faucets, closets, water and uri- tings, required by the information subsec- nals, aggregate retail cost of water and (b) permanently, legibly, shall be likely wastewater treatment services be in- conspicuously displayed on an accessible annually, representative curred use of a place packag- on each unit or on the unit's 6291(7). product...." consumer Id. "Wa- ing. quantity ter use” is defined as "the of water lamps, required by For the information showerhead, faucet, flowing through a water (b) permanently, legibly, subsection shall be closet, point urinal of use....” Id. conspicuously displayed on an accessi- 6291(31)(A). unit, place packag- ble on each on the unit’s or, ing, where the unit is contained in a group single package, of several units in a packaging group. on the 1607(c). §Id.

502 Constr., N.A., Dillingham v. ener- of “measure of meaning tbe broaden forcement 832, Inc., 316, 335, defined, 117 S.Ct. 136 part, in 519 U.S. is consumption,” which gy (1997) (Scalia, J., directly concurring). con- L.Ed.2d 791 quantity “the as: point “indi- product consumer the relation is by a issue is whether sumed The 6291(4); ratio of the “the use,” rect, remote, 42 or not. Cali- and tenuous” from a consumer output Dump of services Competitive useful & For Safe fornians prod- energy use of such to the Mendonca, product Transp. v. F.3d Truck 6291(5); aggregate and “the uct,” (9th Cir.1998). id. 1184, The relation likely to energy which is of the retail cost name, a manufacturer’s placing between 6291(7). As annually,” id. consumed be name, date of manufac- model and the such, energy consumption” “measure and measures of ener- appliance ture on an Cali- the information encompass not does EPCA, consumption, defined is gy as place fornia remote, indirect, tenuous. manufactur- as the such appliances, Therefore, that the marking we conclude model num- appliance’s name and er’s 1607(b) contained sections requirements of manufacture. ber and date (c) Title 20 the California Code of interpret how to The issue then becomes by preempted EPCA. Regulations are not of the to.” respect The “with hold that section We also on how “relates to” instructs us phrase 1607(d)(1)10 California to,” as “with interpret EPCA, the section by as not scope similar phrases are both only requires compliance with stated Court has meaning. Supreme The therefore, and, marking requirements does taken to’ cannot be that “the term ‘relate require disclosure of its furthest stretch extend to the ‘to information required” that is “other than practical or else ‘for all indeterminancy,’ 6297(a)(1). under federal law. never run its pre-emption would purposes ” stated, “if As the Fourth Circuit has state 532 U.S. Egelhoff Egelhoff, course.’ v. labeling require adopts imposes law 146, 1322, 149 L.Ed.2d 121 S.Ct. that is the as the federal stan ment same Travelers, (2001) 514 U.S. (quoting dard, com provides if the law even 1671). has also “cau The Court violation, or other remedies for pensation literalism’ that an ‘uncritical against tioned explic not to long Congress chooses so turn on ‘infinite pre-emption make would ” law, it will not itly preempt the consistent Id. at S.Ct. connections.’ im with federal law.” be said to be conflict Travelers, (quoting Co., Cyanamid 1671). observed, Worm American As Justice Scalia S.Ct. Cir.1992). (4th This rea F.2d everything “[everything is related Medtronic, by soning supported En- Div. Labor Standards else.” Cal. 1607(d)(1) pro- washers Water heaters Room air condition- Cal.Code Pool heaters vides: ers Warm air furnaces Clothes (d) dryers lamp washers Clothes Fluorescent Information. Performance (1) Federally-Regulated Consumer Prod- Faucets Water ballasts Showerheads closets ucts. lamps Urinals General fluorescent service marking required 16 C.F.R. Part 305 lamps heating Direct Incandescent reflector displayed of all shall be on all units compact equipment fluores- Medium-base federally-regulated products consumer (kitchen lamps Cooking equipment cent following classes: ovens). ranges and Refrigerators Refrigerator-freezers Freezers 1607(d)(1). pumps Heat Dish- Central air conditioners Supreme preempt Court stated that that would reg- which the inconsistent state ulations, inaction, more, damages of a reme- DOE’s without presence [state] “[t]he preempt regulations. fails to relevant state not amount to the additional or dy does ‘requirement’ necessary different 6316(a) (b) Sections preempt “any statute; rather, [federal] under regulation State insofar reg- as such State manu- merely provides another reason for any ulation provides time for the disclo- comply existing facturers to with identical sure information with under federal law.” 518 ‘requirements’ energy consumption measure of or water 116 S.Ct. 2240. Because Cal. U.S. ... if ... regulation use such re- 1607(d)(1) 20, § Regs. merely tit. Code quires disclosure of information ... provides appliance manufacturers another product covered other than information re- comply existing require- reason to with quired” under federal law. 42 U.S.C. law, ments under federal the California 6297(a)(1) added). Thus, § (emphasis regulation preempted. is not preempted state are at any if they require time the disclosure of infor- marking regulation The final mation other than what is under argues Trade Associations federal law. law, Regs. tit. Cal.Code DOE’s inaction alone cannot The 1607(d)(2),11 § require also does not preempt regulations. See Puerto disclosure of information “other than infor Dep’t Rico Consumer v. Isla law, required” mation under-federal and is Affairs 495, 503, Corp., Petroleum 1607(d)(2) preempted. thus not Section S.Ct. 99 L.Ed.2d 582 “When federally-regulated commercial comprehensive federal scheme intention- equipment and industrial to be marked ally portion regulated leaves a field preemp with information. The relevant controls, pre-emptive without then the in- provision is located at 42 U.S.C. ference can be drawn—-not from federal 6316(a)-(b), part which was enacted as alone, joined inaction but from inaction EPAct. EPAct, with action.” Id. Under the DOE 1607(d)(2) regulation section California labeling prescribe must rules for classes of pre-empted is not there are no because covered for which the DOE has equipment rules for the EPAct-cov- prescribe exercised its discretion to test equipment subject 6315(a). that are ered to Califor- procedures. marking requirements.12 prescribed procedures nia’s Where DOE has not test equipment, EPAct authorizes the DOE take action most classes covered 1607(d)(2) Regs. pro- printed tit. eluded all that is dis- 11. Cal.Code material played point vides: of sale. or distributed 1607(d)(2). (d) Energy Performance Information. (2) Federally-Regulated Commercial and adopted labeling 12. The DOE has rules for Equipment: ap- Industrial Each unit of an motors. 10 C.F.R. 431.83. How- electric pliance federally- V listed in Table that is ever, regulations on EPAct- the California regulated equip- commercial and industrial marked, equipment do include electric covered permanently ment shall be motors; heating, they only space cover air- legibly conspicuous on .an accessible unit, heating equipment. conditioning, water place applicable on the ener- 1607(d)(2), gy performance See Cal.Code Ta- information shown in Table V, and such shall in- ble V. also be Regula- Enforcement Compliance and of C. the decision not reached has therefore rules. labeling tions prescribe to whether inac the DOE’s no indication is There argue Lastly, Associations Trade decision express a conscious tion was regulations, procedural that California’s 6315(h)13 promul to not § under U.S.C. 1608,14 20, § tit. Regs. found at Cal.Code EPAct-covered rules for gate labeling discussed sub previously that enforce the agen that an essential is equipment. “[I]t be preempted are regulations stantive declare, degree specificity, high at a cy enforce they impermissibly federal cause preempt action its in intention its sub If the Commission’s requirements. such a may assume law before we found, are as we have regulations, stantive Baltimore effect.” give legal it desire and law, by then the preempted federal 108, F.2d Oberly, R.R. Co. & Ohio compliance and en Commission’s relevant Cir.1988). (3d has not As the DOE preempt are also not provisions forcement so, that Cal.Code hold done we cannot must include power regulate ed. The to 1607(d)(2) 20, preempted § is tit: Regs, those power to enforce complementary the than” something “other because compliance and regulations. California’s law does. what federal determines that an If the Executive Director provides: § appliance that is not in the database is promul- Secretary shall not [of DOE] California, being in sold or offered for sale labeling class of industri- gate rules for appropriate legal action he or she shall take has determined equipment unless he al discourage such sale or of- to restrain and that— (1) testing including, this section labeling fering, accordance with but not limited to economically technologically and feasible appliance at the is units of the manufacturer’s class; such seeking appropriate judicial with ac- cost (2) savings likely will re- significant tion. labeling; 20, sult from such Regs. Cal.Code tit. (3) section with this Furthermore, in accordance 1608(e)-(g) requires the section making pur- likely to assist consumers is peri- Executive Director of the Commission to chasing decisions. odically inspect appliances sold or offered for 6315(h). they determine whether sale in California to energy efficiency with relevant conform the 1608, Regs. provides tit. 14. Cal.Code Regs, consumption standards. Cal.Code part: relevant 1608(e)(1). pays tit. The Commission (a) Requirements for the Sale or General testing. Regs, Cal.Code the costs of the initial Any Appliances. of All unit Installation tested, 1608(f). federally-regu- tit. If scope any appliance the of Section within performs appliance worse than what lated may for sale in be sold offered required applicable stan- under the federal only California if: dard, pay manufacturer must the the cost appliance appears in the most re- the Cal.Code testing. additional pursuant to Sec- established cent database 1608(e)(2), (f). (g), §§ The Executive Director 1606(c), only reason for the unless the agency if appropriate federal informs appliance’s database is its absence from the performance appliance's either is at variance comply applicable stan- an failure with reported to manufacturer with the results the applicable feder- [the dard in Section 1605.1 agency applicable or is not standard]; efficiency al compliance the federal standard. Cal. with (2) the manufacturer has: federally- 1608(g). Regs. tit. A Code (A) Sec- appliance tested the regulated appliance 1604; will be removed from tions 1603 and due to its (B) Commission's database failure required by Section marked the unit as 1607; applicable comply standard. 1605(a)(1), §§ (e)(2)(C). 1608(c)(4), (d)(2)(B), (b) Appliances Not in Database. are not would be. has chosen a provisions enforcement broad prevent imposition by term to a state by federal law. of disclosure. -burden Just as the IV meaning of “disclose” is “to expose to known,” view” or “to make so the substan- reasons, agree we with the For these referencing tive noun such an act so relevant California Commission encompasses every extensive that it com- require which pulsory revelation of the relevant informa- appliances, to submit data about their - tion. Palpably the statute is meant to subjected appliances, mark and be to preempt entering the state from the feder- compliance and enforcement rules related al domain. by federal law. aré not We reading” I do not ask for “a broad reverse the district court’s deci- therefore “disclosure,” for an exact reading but of a regulations preempted, finding sion these Obviously broad term. where the informa injunction preventing vacate the Com- going required by tion is to consumers as applying regulations, from these mission meaning U.S.C. of disclo remand for further con- proceedings by sure is narrowed the audience refer opinion. sistent with this narrowing enced. But such a context REVERSED, VACATED, AND RE- generality does not limit the of the statuto MANDED. ry special term when context no restricts Congress it. That did not use the term NOONAN, Judge, dissenting: Circuit describing reports “disclosure” when to issue, inferentially The statutes bearing Congress’s DOE does not have negotiation compromise, result of de- single compendious intent when it found a liberately spell preempted by out what is way say to that manufacturers need not regulations preempted law. government inform either the or consu require are those that “disclosure infor- .mers use, mation with to the Impatience imposed with the restraints efficiency ... or water use other by precise pre-emptive words of the than under the information sec- majority statute is also manifest when the tion 6294 of this title.” than” phrase deals with the “other as the 6297(a)(1)(B). regula- Where federal regulations refers to other than require tions do not disclosure of such 6316(a), regulations. government, information to the federal a (a)(4). regu- there are no federal Where expressly prohibited requir- from state subject because the DOE lations on the to a ing such disclosure to consumers or any promulgated regulations, has not authority. state are “other regulations then state majority opinion pro The holds' court federally required. than” those The applies only hibition to disclosure to con idiosyncratic imagination sup- indulges a holding sumers. The radical reduction posing regula- that there must be federal “Disclosure,” statutory key term. ap- in existence for “other than” to tions Webster’s Third New International Dictio exists, contraire, nothing if ply. Au (3d ed.1993) us, act nary informs is “the or than what ex- state are other view, opening up an instance of to knowl The fundamen- regulation. ists as federal to a edge comprehension.” express Disclosure is that preemption tal tenet of involvement, agency opening up may preclude is as much an state regulate. it chooses not view of the data as disclosure to consumers even where Barker, Tacoma Public Utili misreading of “other than” William its Through bur- ca imposed heightened a Board Member his official the court has ties implied to show Hilyard, Public pacity; den on the Tom Tacoma Congress’ express despite preemption, Member in his official Board Utilities preemption. statement Lane; Strege; capacity; Tim Robert Defendants-Appellees. Vaughn, G.E. presumption employs court only presumption against preemption —a Tribe, federally rec Skokomish Indian showing the field to be one triggered by capac ognized tribe its own Indian states. traditionally occupied Unit ity representative and as as a class Locke, 89, 108, 120 ed States v. Hurtado; patriae; Denny parens S. Califor L.Ed.2d 69 S.Ct. James; Pavel; Joseph A. Gordon regulates the uses at issue. Cali nia alone Tinaza; Pavel; Anne Maures P. Cel big enough single-handedly fornia is Reed; Gary Roslynne Vigil; L. este F. fate of generate presumption. Peterson; Andrews; Tom Rita C. W. may augury “Fleet Rules” be California’s Gouley; Strong; Marie E. G. Victoria Engine of what is to come. See Manufac Allen; Joseph Pavel; Dennis W. J. Quality Air turers Ass’n v. South Coast Cush; Andrews, Sr.; M. Zetha Elsie District, Management U.S. Allen; Gouley, Jr.; Alex L. Lawrence S.Ct. L.Ed.2d Kenyon; Miller; B. L. Doris Gerald judgment of the dis- I would affirm the Miller; Rudy; Helen M. Ronald D. trict court. Wilbur, Sr., Twiddy, Sr.; Nick G. Sko members

komish Indian Tribal similarly and all themselves others situated, Plaintiffs-Appellants, v. TRIBE, a feder INDIAN SKOKOMISH Utilities, Washington Tacoma Public a ally recognized Indian tribe its ow City corporation; municipal of Taco representative capacity a as class n ma, Washington municipal corpora a Denny Hurtado; parens patriae; S. tion; Barker, Tacoma Public William Pavel; James; Joseph A. Anne Gordon Member in his official Utilities Board Tinaza; Pavel; F. Maures P. Celeste capacity; Hilyard, Tom Tacoma Pub Roslynne Reed; Gary Vigil; L. W. Pe lic Utilities Board Member his offi Andrews; terson; Rita C. Tom G. Lane; capacity; Tim cial Robert Gouley; Strong; Marie E. Victoria J. Strege; Vaughn; G.E. United States Pavel; Allen; Joseph Dennis An W. Service, Defen Internal Revenue Sr.; Cush; drews, Al Zetha Elsie M. dants-Appellees. Jr.; len; Gouley, Alex L. Lawrence L. 01-35028, Nos. 01-35845. Kenyon; Miller; B. Mil Doris Gerald ler; Rudy; M. D. Helen Ronald Twid Appeals, United States Court of dy, Sr.; Wilbur, Sr., Plain Nick G. Ninth Circuit. tiffs-Appellants, March Argued and Submitted Filed March America; Tacoma UNITED STATES 3, 2005. Amended June Utilities, Washington Public munic

ipal corporation; City Tacoma,

Washington municipal corporation;

Case Details

Case Name: Air Conditioning & Refrigeration Institute v. Energy Resources Conservation & Development Commission

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 3, 2005

Citation: 410 F.3d 492

Docket Number: 03-16621

Court Abbreviation: 9th Cir.