Natural Resources Defense Council v. AbrahamNatural Resources Defense Council v. Abraham
Katherine Kennedy, Natural Resources Defense Council, New York, NY, for Petitioners Natural Resources Defense Council, Public Utility Law Project and Consumer Federation of America.
Charles Harak, National Consumer Law Center, Boston, MA, for Intervenors Massachusetts Union of Public Housing Tenants and Texas Ratepayers’ Organization to Save Energy.
James T. Bradford Ramsey, General Counsel, Sharla M. Barklind, Assistant General Counsel, National Association of Regulatory Utility Commissioners, Washington, DC, for Intervenor National Association of Regulatory Utility Commissioners.
John A. Hodges, Washington, DC (Bruce L. McDonald, Dineen P. Wasylik, Wiley Rein & Fielding LLP; and Stephen R. Yurek, General Counsel, Air-Conditioning and Refrigeration Institute, Arlington, VA, of counsel), for Intervenor-Respondent Air-Conditioning and Refrigeration Institute.
Wendy H. Schwartz, Assistant United States Attorney, New York, N.Y. (James B. Comey, United States Attorney, Gideon A. Schor, Assistant United States Attorney, of counsel), for Respondents Spencer Abraham, as Secretary of the United States Department of Energy, and United States Department of Energy.
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Public Rights Division, Sacramento, CA, for Petitioner State of California.
Richard Blumenthal, Attorney General, Mark Kindall and Kelly Flint, Assistant Attorneys General, Hartford, CT, for Petitioner State of Connecticut.
William H. Sorrell, Attorney General, Erick Titrud and S. Mark Sciarrotta, Assistant Attorneys General, Montpelier, VT, for Petitioner State of Vermont.
G. Steven Rowe, Attorney General, Paul Stern, Deputy Attorney General, and Gerald D. Reid, Assistant Attorney General, Augusta, Maine, for Petitioner State of Maine.
David Samson, Attorney General, Howard Geduldig, Deputy Attorney General, Trenton, NJ, for Petitioner State of New Jersey.
Thomas F. Reilly, Attorney General, Frederick Augenstern and William L. Pardee, Assistant Attorneys General, Boston, MA, for Intervenor Commonwealth of Massachusetts.
Sheldon Whitehouse, Attorney General, Tricia K. Jedele, Special Assistant Attorney General, Providence, RI, for Intervenor State of Rhode Island.
Frankie Sue Del Papa, Attorney General, Timothy Hay, Chief Deputy Attorney General, Carson City, NV, for Petitioner State of Nevada.
Phiip T. McLaughlin, Attorney General, Amy B. Mills, Attorney, Concord, NH, for Intervenor State of New Hampshire.
Sam Kazman, Ben Lieberman, Competitive Enterprise Institute, Washington, DC, for Amici Competitive Enterprise Institute, Energy Market & Policy Analysis, Inc., Consumer Alert, Committee for a Constructive Tomorrow, National Taxpayers Union, Small Business Survival Committee, and the Seniors Coalition in Support of Respondents.
Arlen Orchard, General Counsel, Sacramento Municipal Utility District, Sacramento, CA, for Amicus Sacramento Municipal Utility District.
Before OAKES and SOTOMAYOR, Circuit Judges.1
OAKES, Senior Circuit Judge.
We are called upon in this case to determine when section 325 of the Energy Policy and Conservation Act (“EPCA“), as amended by the National Appliance Energy Conservation Act (“NAECA“), took effect so as to prevent the Department of Energy from amending downward efficiency standards for certain home appliances.
The Natural Resources Defense Council (“NRDC“), the Public Utility Law Project (“PULP“), and the Consumer Federation of America (“CFA“), joined by the attorneys general of California, Connecticut, Maine, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Rhode Island, and Vermont, as well as intervenors Texas Ratepayers’ Organization to Save Energy, the Massachusetts Union of Public Housing Tenants, and the National Association of Regulatory Utility Commissioners (hereinafter collectively “petitioners“), petition this court for relief. They challenge a series of actions taken by the Department of Energy (“DOE“) following its promulgation and publication in January 2001 of efficiency standards for certain air conditioning units required under the EPCA. They do so simultaneously with their appeal, in the alternative, of the dismissal based on lack of subject matter jurisdiction by the United States District Court for the Southern District of New York, Laura Taylor Swain, Judge, of their suit challenging a portion of these same actions in that court.
In their consolidated petitions for relief, petitioners argue that DOE‘s acts of delaying, withdrawing and replacing the standards promulgated in January 2001 were improper and done in violation of
As a threshold matter, we conclude that the district court was correct in determining that subject matter jurisdiction over petitioners’ challenge to DOE‘s two amendments of the original standards’ effective date properly resides with this court. Consequently, we review all of DOE‘s actions here. Because we agree that DOE acted contrary to the dictates of the EPCA and, alternately, the APA, we grant petitioners’ request for relief.
Background
Central to this case is the Energy Policy and Conservation Act, passed by Congress in 1975. See EPCA, Pub.L. 94-163, 1975 U.S.C.C.A.N. (89 Stat.) 871 (codified as amended at
The EPCA was passed following the oil embargo imposed by the Organization of Oil Producing and Exporting Countries (“OPEC“) in 1973. It was designed as a direct, comprehensive response to the energy crisis precipitated by the embargo, see H.R.Rep. No. 94-340, pts. I & II, at 1-3 (1975), reprinted in 1975 U.S.C.C.A.N. 1762, 1763-65; see also id., pt. V, at 20, reprinted in 1975 U.S.C.C.A.N. at 1782 (noting 1973 embargo brought the energy situation in the United States to “crisis proportions“), and among its stated purposes was the reduction of demand for energy through such measures as conservation plans and improved energy efficiency of consumer products, EPCA § 2, 1975 U.S.C.C.A.N. (89 Stat.) at 874.
In this vein, the EPCA set about improving the energy efficiency of thirteen named home appliances that Congress determined contributed significantly to domestic energy demand, as well as any additional ones that the administrator of the Federal Energy Administration (“FEA,” a precursor to DOE), in his discretion, determined similarly contributed to energy demand. See generally EPCA §§ 321-39, 1975 U.S.C.C.A.N. (89 Stat.) at 917-32; see also H.R. Rep. 94-340, pt. V, at 94, reprinted in 1975 U.S.C.C.A.N. at 1856 (noting to what 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, requiring labels that disclosed appliances’ energy efficiency as determined under tests developed by the FEA. Upon determining that the labeling program would not result in achieving the desired energy efficiency “targets,” the Act resorted to mandated energy efficiency standards. See EPCA §§ 323-26, 1975 U.S.C.C.A.N. (89 Stat.) at 919-26; see also H.R. Rep. 94-340, pt. II, at 10, reprinted in 1975 U.S.C.C.A.N. at 1772; S. Conf. Rep. 94-516, pt. III, at 119-20 (1975), reprinted in 1975 U.S.C.C.A.N. 1956, 1960. The Act set strict deadlines for developing the testing procedures, imposing the labeling requirements, and establishing the “targets” for covered appliances. See EPCA §§ 323-35, 1975 U.S.C.C.A.N. (89 Stat.) at 919-26; see also Herrington, 768 F.2d at 1365 n. 9. Among those covered appliances specifically enumerated by the Act were central air conditioners. EPCA § 322(a)(12), 1975 U.S.C.C.A.N. (89 Stat.) at 918.
Notwithstanding the strict timelines established by the EPCA, and due in part to continuing domestic energy problems, Congress undertook a “complete overhaul” of national energy policy only three years later, which included amendments to the appliance efficiency program in the EPCA. See Herrington, 768 F.2d at 1365-66; see also NECPA, Pub.L. No. 95-619, sec. 102, 1978 U.S.C.C.A.N. (92 Stat.) 3206, 3208-09 (findings and statement of purpose); Julia Richardson & Robert Nordhaus, The National Energy Act of 1978, 10 Nat. Resources & Env‘t 62, 62-63 (1995) (describing context and events leading up to President‘s National Energy Plan, which included the NECPA in its package of proposed legislation). Congress and the President had grown impatient with the approach found in the original EPCA regarding consumer appliance efficiency. See H.R. Conf. Rep. No. 95-1751, at 114 (1978), reprinted in 1978 U.S.C.C.A.N. 8134, 8158; Herrington, 768 F.2d at 1362 (noting home appliance provision was amended to ensure improvements in energy efficiency would be made more “expeditiously“) (quoting H.R.Rep. No. 95-496, pt. IV, at 46 (1978), reprinted in 1978 U.S.C.C.A.N. 8454, 8493); Julia Richardson & Robert Nordhaus, supra, at 86-87. Rather than waiting in hopes that manufacturers would voluntarily reach the efficiency “targets,” the amended EPCA instead required that the recently created DOE proceed directly to establishing mandatory efficiency standards for covered home appliances that would achieve the maximum improvement in energy efficiency that was technologically feasible and economically justified. See NECPA, sec. 422, § 325(a) & (c), 1978 U.S.C.C.A.N. (92 Stat.) at 3259. The newly amended Act provided, however, that, among other things, if establishing a standard would not result in significant energy conservation, or was not technologically feasible or economically justified, then no standard should be promulgated. NECPA, sec. 422, § 325(b), 1978 U.S.C.C.A.N. (92 Stat.) at 3259; see also Herrington, 768 F.2d at 1362-63.
The amended Act directed that DOE give priority to nine of the thirteen products specifically enumerated in the original EPCA, including central air conditioners. NECPA, sec. 422, § 325(g), 1978 U.S.C.C.A.N. (92 Stat.) at 3261. By 1983, having missed several deadlines, see Herrington, 768 F.2d at 1367-68, DOE responded by determining that no standards should be established for any of the nine products, prompting a challenge in the United States Court of Appeals for the District of Columbia Circuit with regard to eight of them. See id. at 1363. That court determined that, even under deferential review, DOE‘s decision to issue “no-standard” standards, as well as many of the methods used in reaching that decision, were wholly unsupported by the administrative record. Id. at 1363, 1369-83, 1391-1407, 1411-14, 1417-24, 1433. It consequently concluded that a “comprehensive reappraisal” of the appliance efficiency program by DOE was warranted. Id. at 1433.
At this point, ten years after the passage of the original Act and with no standards yet in place, DOE faced yet another deadline for requiring it to consider appropriate mandatory efficiency standards for, at a minimum, the appliances named in the Act. See NECPA, sec. 422, § 325(h), 1978 U.S.C.C.A.N. (92 Stat.) at 3261 (requiring DOE to reevaluate decision on standards no later than five years after initial decision under amended EPCA); see also Herrington, 768 F.2d at 1433 (noting at time of decision that DOE would soon be facing the five-year reconsideration imposed by the Act). Congress felt compelled, however, to step in yet again. See Julia Richardson & Robert Nordhaus, supra, at 87 (noting that, following the passage of NECPA, “years of litigation and subsequent action by Congress were required before appliance energy-efficiency standards would be established“).
While DOE was still in the process of rulemaking following the Herrington decision, Congress adopted legislation proposed through a compromise between NRDC (one of the parties in Herrington) and home appliance industry groups. See S.Rep. No. 100-6, at 3-4 (1987), reprinted at 1987 U.S.C.C.A.N. 52, 54-55. That legislation, known as the National Appliance Energy Conservation Act, became law in 1987. National Appliance Energy Conservation Act of 1987, Pub.L. 100-12, 1987 U.S.C.C.A.N. (101 Stat.) 103 (hereinafter “NAECA“). Rather than relying on the DOE to promulgate standards, the 1987 Act set, or “lock[ed] in,” specific efficiency standards and testing methods for covered products, including the central air conditioning units at issue in these proceedings.3 NAECA secs. 3-5, §§ 322-23, 325(a)-(h), 1987 U.S.C.C.A.N. (101 Stat.) at 105-12; S.Rep. No. 100-6, at 2, reprinted in 1987 U.S.C.C.A.N. at 52. It then required DOE to undertake rulemaking to decide whether to amend those standards within three to ten years, depending on the product, NAECA sec. 5, § 325(b)-(h), 1987 U.S.C.C.A.N. (101 Stat.) at 108-12, and mandated that any amended standards, like the initial standards under the 1978 incarnation of the Act, “be designed to achieve the maximum improvement in energy efficiency which the Secretary determines is technologically feasible and economically justified,” id. sec. 5, § 325(1)(2)(A), 1987 U.S.C.C.A.N. (101 Stat.) at 114 (emphasis added).
With regard to central air conditioners and central air conditioning heat pumps, the 1987 Act set the standards — stated in terms of a “seasonal energy efficiency ratio” (“SEER“) for central air conditioners, and both a SEER level and a “heating seasonal performance factor” (“HSPF“) level for air conditioners with heat pumps — as follows:
-SEER 10.0 for split system central air conditioners
-SEER 9.7 for single package central air conditioners
-SEER 10.0/HSPF 6.8 for split system air conditioners with heat pumps
-SEER 9.7/HSPF 6.6 for single package air conditioners with heat pumps
See NAECA sec. 5, § 325(d)(1) & (2), 1987 U.S.C.C.A.N. (101 Stat.) at 109-10. These standards would apply to units manufactured on or after January 1, 1992, for split systems, and January 1, 1993, for single package systems. Id. The 1987 Act required DOE then to publish a final rule determining whether to amend these standards by January 1, 1994. NAECA sec. 5, § 325(d)(3)(A), 1987 U.S.C.C.A.N. (101 Stat.) at 110. It also required DOE again to consider amending the standards sometime after January 1, 1994, but no later than January 1, 2001, and strengthened the portion of the EPCA providing for citizen suits so as to ensure DOE compliance with deadlines such as these. NAECA sec. 5, § 325(d)(3)(B), 1987 U.S.C.C.A.N. (101 Stat.) at 110; id. sec. 8, § 335(a), 1987 U.S.C.C.A.N. (101 Stat.) at 122; S.Rep. No. 100-6, at 11, reprinted in 1987 U.S.C.C.A.N. at 61-62.
The NAECA also added a significant provision to section 325 that is at the heart of these proceedings. The new provision mandated that, when it came time for DOE to undertake its periodic review of the efficiency standards, DOE could decide no amendment was necessary but it could not amend the standards so as to weaken efficiency requirements. See NAECA sec. 5, § 325(1)(1), 1987 U.S.C.C.A.N. (101 Stat.) at 114. In other words, it built an “anti-backsliding” mechanism into the EPCA: efficiency standards for consumer appliances could be amended in one direction only, to make them more stringent.4 See id.; see also S.Rep. No. 100-6, at 2, reprinted in 1987 U.S.C.C.A.N. at 52 (noting after “lock-in” period of standards established by statute, DOE “may promulgate new standards for each product which may not be less that those established by the legislation“) (emphasis added).
Procedural History
As noted above, the NAECA amendments to the EPCA required that DOE reach and publish its decision on amendments to the efficiency standards for central air conditioning units by January 1, 1994. Under the amendments, SEER levels would apply to manufacturers as of January 1, 1999, and HSPF levels would apply to manufacturers as of January 1, 2002. See NAECA sec. 5, § 325(d)(3)(A), 1987 U.S.C.C.A.N. (101 Stat.) at 110 (codified at
The January 1, 1994, deadline for DOE to publish its decision on the amendments to the efficiency standards for central air conditioning units passed without DOE action. Although the public submitted comments, a notice of proposed rulemaking did not issue, and in the fall of 1995, Congress imposed a moratorium on the promulgation of new regulations pending a review of the standards-setting process for appliances. See Energy Conservation Program for Consumer Products; Energy Conservation Standards for Central Air Conditioners and Heat Pumps (“ECPCP-ECSCACHP“), 64 Fed.Reg. 66,306, 66,307 (Nov. 24, 1999) (recounting history of DOE efforts toward amending standards set by Congress in the NAECA). That review resulted in the July 1996 promulgation of “The Process Rule,” which established a general structure for considering amendments to appliance efficiency standards. Procedures, Interpretations and Policies for Consideration of New or Revised Energy Conservation Standards for Consumer Products,
Pursuant to “The Process Rule,” DOE began anew the process of deciding whether to amend the standards set by Congress for central air conditioners by convening a public workshop in June 1998. Energy Conservation Standards for Consumer Products: Notice of Public Workshop on Central Air Conditioner Energy Efficiency Standards Rulemaking, 63 Fed.Reg. 29,357 (May 29, 1998); see also Letter from Michael J. McCabe, Director, Office of Codes and Standards (May 15, 1998) (announcing public workshop under auspices of “Process Rule” and inviting participation); Letter from Michael J. McCabe, Director, Office of Codes and Standards (May 29, 1998) (enclosing framework document for workshop and noting that rulemaking will begin anew with respect to central air conditioners despite September 1993 ANOPR). Following the workshop and the ensuing public comments, DOE published a supplemental ANOPR indicating that it would renew its consideration of amendments to the efficiency standards and inviting comment. ECPCP-ECSCACHP, 64 Fed.Reg. 66,306 (Nov. 24, 1999). The supplemental ANOPR stated that, based on the workshop proceedings, DOE would specifically be considering a range of SEER levels of 11, 12 and 13, with any attendant improvement in HSPF levels, for each class of product, but was not at that time proposing a particular standard for each specific product. Id. at 66,337-39.
After additional comment, DOE published a notice of proposed rulemaking (“NOPR“) delineating specific proposed standards. ECPCP-ECSCACHP, 65 Fed. Reg. 59,590 (Oct. 5, 2000). The NOPR proposed efficiency standards of 12 SEER for central air conditioners and 13 SEER/ 7.7 HSPF for central air conditioners with heat pumps. Id. at 59,590-91. It invited more public comment and set a date for a public hearing. Id. The NOPR indicated that the proposed standards were being put forth in an effort to discharge its duty to publish, by January 1, 1994, a decision whether to amend the standards originally promulgated by Congress. Id. at 59,591-92.
The public hearing was held on November 16, 2000. Based on those proceedings and extensive submissions of public comment, and as the result of the processes initiated in September of 1993, DOE promulgated a final rule amending the efficiency standards originally set by Congress for central air conditioners. The new rule required a 13 SEER level for central air conditioning units and a 13 SEER/7.7 HSPF level for central air conditioners with heat pumps, and was published in the Federal Register on January 22, 2001. ECPCP-ECSCACHP, 66 Fed. Reg. 7,170, 7,170 (Jan. 22, 2001). Consistent with the five-year timeframe between publication and compliance contemplated by the EPCA, the rule provided that manufacturers would be subject to these standards as of January 23, 2006. Compare
Subsequently, on February 2, 2001, without any prior notice or comment, DOE published what it denoted a “final rule” delaying the effective date of the efficiency standards to April 23, 2001. ECPCP-ECSCACHP, 66 Fed.Reg. 8,745 (Feb. 2, 2001). The notice cited a memo from the President‘s Chief of Staff, Andrew H. Card, published a week earlier in the Federal Register, authorizing the change in the standards’ effective date, but did not otherwise cite any legal authority for DOE‘s action. Id. The Card memo had asked the heads and acting heads of executive agencies to postpone the effective dates of any federal regulations already published in the Federal Register, but not yet effective, for a period of sixty days, excluding those regulations “promulgated pursuant to statutory or judicial deadlines.” Memorandum for the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed.Reg. 7,702, 7,702 (Jan. 24, 2001). The announcement of the February 2 final rule noted that the rule was exempt from the APA‘s notice and comment requirements either because it was a rule of procedure, or because it was subject to the “good cause” exceptions to notice and comment. ECPCP-ECSCACHP, 66 Fed.Reg. at 8,745. It further noted that seeking public comment on a final rule delaying the effective date of the standards was impractical because of the imminence of that date. Id.
Following publication of the February 2 delay rule, ARI filed a petition for review of the amended standards in the Fourth Circuit Court of Appeals. While this petition was pending, ARI also filed a petition with DOE asking that DOE reconsider the amended standards and replace them with a 12 SEER standard for air conditioners and a 12 SEER/7.3 HSPF standard for air conditioners with heat pumps. Following a request by ARI and DOE, the Fourth Circuit suspended briefing on ARI‘s petition for review in that court, and as far as this court is aware, that case is still pending.
On April 20, 2001, again without notice and comment, DOE issued yet another “final rule” regarding the amendments to the efficiency standards. ECPCP-ECSCACHP, 66 Fed.Reg. 20,191 (Apr. 20, 2001). This final rule noted it was “effective immediately upon publication,” and suspended the effective date of the amended standards indefinitely pending the outcome of ARI‘s request to DOE to reconsider the amended standards, and ARI‘s petition for “judicial review” pending before the Fourth Circuit. Id. In addition to indicating that DOE was reconsidering the amended standards, the notice also announced DOE‘s already arrived at decision to issue an NOPR “revis[ing] the standard levels set out in the January 22, 2001, final rule” to 12 SEER and 12 SEER/7.4 HSPF levels. Id.
Concerned about DOE‘s expressed intention to rescind the standards published in the Federal Register, several of the petitioners simultaneously filed petitions for review of the delay rules in this court and in the Southern District of New York in June 2001. They argued that DOE‘s proposed action of withdrawing the amended standards was barred by
Following public comment and a public hearing on this proposed new course of action, DOE announced three final rulemaking determinations on May 23, 2002. ECPCP-ECSCACHP, 67 Fed.Reg. 36,368 (May 23, 2002). They were as follows: (1) withdrawal of the January 22, 2001, final rule amending the efficiency standards for central air conditioners originally adopted by Congress, (2) definition of terms found in section 325(o)(1) that pinpoint when section 325(o)(1) limits DOE‘s discretion to alter an amended efficiency standard prescribed as a final rule, and, finally, (3) adoption of 12 SEER and 12 SEER/7.4 HSPF as the new efficiency standards for central air conditioners and heat pumps. Id. at 36,368-69. In the intervening time, the district court had dismissed the petitions for review of the delay rules, concluding that it lacked subject matter jurisdiction over them and that the EPCA granted jurisdiction to this court. See New York v. Abraham, 199 F.Supp.2d 145, 152 (S.D.N.Y.2002).
Petitioners filed a notice of appeal from the district court decision, as well as petitions for review of the May 23 final rules in this court. We consolidated petitioners’ appeal and the petitions for relief with the petitions seeking review of the delay rules that were already pending in this court.
Discussion
Petitioners make numerous arguments in their petitions for relief and on appeal from the district court‘s judgment of dismissal. In their simplest form, petitioners contend that, with regard to DOE‘s actions following the January 22 publication of the original standards: (1) section 325(o)(1) of the EPCA prohibited DOE from withdrawing the original standards and replacing them with less stringent standards once the original standards were published in the Federal Register as final rules; (2) the February 2 and April 20 “final rules,” which, respectively, delayed and suspended indefinitely the effective date of the original standards are invalid for failure to comply with the APA‘s notice-and-comment requirements, or any of the exceptions to those requirements; therefore, even if section 325(o)(1) did not apply once the new standards were published, it applied, at the latest, as of the original effective date which the invalid rules failed to amend, and thus prohibited the subsequent replacement standards; (3) assuming 325(o)(1) did not prohibit the withdrawal and replacement of the original standards with less stringent standards, the replacement standards nevertheless are not supported by substantial evidence in the record and fail to conform to section 325‘s requirement that DOE promulgate standards “designed to achieve the maximum improvement in energy efficiency ... which the Secretary determines is technologically feasible and economically justified,”
I. Jurisdiction
There is no dispute among the parties that this court has jurisdiction under
Petitioners argue that subject matter jurisdiction over the propriety of the delay to the standards’ effective date resided with the district court, pursuant to federal question jurisdiction. Consequently, should we conclude that we lack jurisdiction to review the changes to the standards’ effective date, petitioners ask us to reverse the district court‘s judgment of dismissal for lack of subject matter jurisdiction. Thus, the question before us is whether the district court should have exercised jurisdiction as an initial matter regarding the February 2 and April 20 delays, or whether review, in the first instance, properly lies with this court.
The EPCA contains the following jurisdictional provision generally vesting the court of appeals with jurisdiction over rulemaking regarding efficiency standards for home appliances:
Any person who will be adversely affected by a rule prescribed under section... 6295 of this title [section 325 of the EPCA] may, at any time within 60 days after the date on which such rule is prescribed, file a petition with the United States court of appeals for the circuit in which such person resides or has his principal place of business, for judicial review of such rule.
Below, petitioners asserted that the district court had jurisdiction over the delays to the standards’ effective date on the basis of general federal question jurisdiction. See
We start with the premise that, absent a specific grant of statutory authority elsewhere, subject matter jurisdiction regarding review of agency rulemaking falls to the district courts under federal question jurisdiction. See Clark, 170 F.3d at 113 n. 1; Int‘l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1481 (D.C.Cir.1994) (characterizing the rule that review of agency action should occur in district court as a “default rule” that governs only in the absence of a statute providing otherwise); Five Flags Pipe Line Co. v. Dep‘t of Transp., 854 F.2d 1438, 1439 (D.C.Cir. 1988). Furthermore, when there is a specific statutory grant of jurisdiction to the court of appeals, it should be construed in favor of review by the court of appeals. See Clark, 170 F.3d at 114; Nat‘l Parks & Conservation Ass‘n v. FAA, 998 F.2d 1523, 1529 (10th Cir.1993) (“[i]f there is any ambiguity as to whether jurisdiction lies with a district court or with a court of appeals we must resolve that ambiguity in favor of review by a court of appeals“); Gen. Elec. Uranium Mgmt. Corp. v. DOE, 764 F.2d 896, 903 (D.C.Cir.1985) (same); see also Media Access Project v. FCC, 883 F.2d 1063, 1067 (D.C.Cir.1989) (noting “statutory review in the agency‘s specially designated forum prevails over general federal question jurisdiction in the district courts“) (internal citation omitted); Ind. & Mich. Elec. Co. v. EPA, 733 F.2d 489, 491 (7th Cir.1984) (invoking “the judge-made presumption in favor of court of appeals review in doubtful cases“). Against these background principles, the Supreme Court offers several guideposts when interpreting the scope of a provision such as section 6306(b), which include the overall statutory structure; the legislative history, if any, of the provision at issue; and the traditional allocation of authority to review agency action. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 737, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985).
Here, the statutory structure of the jurisdictional provisions of the consumer appliance portion of the EPCA favors finding jurisdiction in this court, pursuant to section 6306(b). The statute grants jurisdiction to the court of appeals over DOE rules promulgated pursuant to the powers granted in section 325 regarding efficiency standards, as well as under the portions of the EPCA empowering DOE to establish test procedures for home appliances.
This dichotomy is consistent with the traditional allocation of reviewing authority. Rulemaking proceedings do not ordinarily necessitate additional factfinding by a district court to effectuate the review process. See Fla. Power & Light, 470 U.S. at 744, 105 S.Ct. 1598 (noting “factfinding capacity of the district court is ... typically unnecessary to judicial review of agency decisionmaking“). In contrast, the exceptions to review by a court of appeals found in § 6303, namely, state compliance with its terms and inaction in response to a petition to initiate rulemaking, ordinarily would entail additional factfinding, as they do not reflect the culmination of a structured rulemaking process with its attendant record. Such proceedings are therefore appropriately reserved for review by the district court.
Final rules amending the effective date for standards are more in the nature of rulemaking proceedings because they are the result of an affirmative agency decisionmaking process reflected in the Federal Register, and thus would not require additional factfinding. Cf. Clark, 170 F.3d at 114 (noting factfinding was “clearly ... unnecessary” in particular case at hand when concluding that jurisdiction lay in court of appeals).
Additionally, although DOE failed to cite to the EPCA as the basis for its rulemaking authority, we believe the power to do so derives, if at all, from Congress‘s general grant of authority over home appliances to DOE in the EPCA. Cf. Nat‘l Parks & Conservation Ass‘n, 998 F.2d at 1528 (concluding that, because actions challenged under NEPA were taken pursuant to agency‘s “organic” statute and “in regard to the [agency‘s] basic mission” under that statute, statute should determine jurisdiction to review action); see also La. Pub. Serv. Comm‘n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986) (“an agency literally has no power to act ... unless and until Congress confers power upon it“). Furthermore, as discussed in more detail below, altering the effective date of a duly promulgated standard could be, in substance, tantamount to an amendment or rescission of the standards, which clearly falls within section 6306(b)(1)‘s ambit. See NRDC v. EPA, 683 F.2d 752, 760 (3d Cir.1982) (concluding that EPA postponement of effective date of regulations constituted final action reviewable by court of appeals under statute providing for review of regulations themselves); see also Thermalkem, Inc. v. EPA, 25 F.3d 1233, 1237 (3d Cir.1994) (“statutes authorizing review of specified agency actions should be construed to allow review of agency actions which are functionally similar or tantamount to those specified actions“) (internal quotation omitted).
Lastly, as becomes clearer below, in order to address the ultimate validity of the replacement standards under section 325(o)(1), we potentially must consider the validity of the delay rules as a subsidiary matter. This gives rise to the possibility of both this court and the district court passing on the question, albeit in somewhat different contexts, should we find we lack direct jurisdiction over the delays. Such bifurcated and piecemeal review is disfavored. See Media Access Project, 883 F.2d at 1068; EDF, 713 F.2d at 812. Thus, we believe the delays should be treated as “rule[s] prescribed under section [325,]”
In sum, rather than being governed by the default rule of federal question jurisdiction over agency rulemaking in the district court, we conclude that the February 2 and April 20 delays fall within the EPCA‘s grant of jurisdiction to this court.
II. Section 325(o)(1) of the EPCA and Its Meaning
Petitioners’ primary argument to this court is that, regardless of the validity of the delay rules, the subsequent promulgation of the replacement standards is invalid because it was barred by section 325(o)(1). They contend that section 325(o)(1) prohibits any rulemaking weakening efficiency standards after those standards have been published in the Federal Register as a final rule. DOE contends, however, that it may change standards published as a final rule any time up to the designated “effective date” of that rule for purposes of modifying the Code of Federal Regulations. Accordingly, DOE argues that, because it suspended the effective date of the January 22 standards indefinitely, its subsequent withdrawal and replacement of those standards with weaker standards was not in violation of section 325(o)(1). DOE also argues that section 325(o)(1) does not operate to restrict its ability to alter an amended standard until it has completed a “timely-initiated administrative reconsideration” of that standard, and, because ARI requested such a reconsideration after DOE‘s first delay of the effective date, the replacement standards that followed were not prohibited by section 325(o)(1).
A. The Statute‘s Language
As noted above, in 1987 Congress added the following provision to the portion of the EPCA governing amendments to the consumer appliance efficiency standards:
(o) Criteria for prescribing new or amended standards
(1) The Secretary may not prescribe any amended standard which increases the maximum allowable energy use, ... or decreases the minimum required energy efficiency, of a covered product.
Throughout section 325, publication of final rules amending efficiency standards is used as the relevant act for purposes of circumscribing DOE‘s discretion to conduct rulemakings. For example, Congress consistently states deadlines for DOE decisionmaking in terms of publication date. The language used in one of the provisions governing water heaters and related products is illustrative: “The Secretary shall publish final rules not later than January 1, 2000, to determine whether standards in effect for such products should be amended.”
Related to Congress‘s use of publication as a benchmark for DOE, the language of the statute also reflects the fact that Congress considered publication as the terminal act effectuating an amendment. Under the terms of the EPCA consumer appliance procedural provisions, publication in the Federal Register — not modification of the Code of Federal Regulations — is the culminating event in the rulemaking process. See
Thus, once new standards are published, DOE has discharged its obligation to prescribe an amended standard or announce its decision not to under the provisions requiring periodic review. Furthermore, once an efficiency standard is published, regardless of the fact that manufacturers have a number of years to bring themselves into compliance, it becomes the “establish[ed]” standard in the statute‘s own language, or, in other terms, the “required” minimum efficiency standard, see
We also note at this point that the only other significant event section 325 uses as a reference point is the standards’ “effective date.” The term “effective date” for purposes of modifying the Code of Federal Regulations, however, is never referenced or used in the statute for any purpose — signifying that Congress did not consider it consequential for purposes of the operation of the statute. Instead, “effective date” is used only to indicate the date by which manufacturers must come into compliance with the prescribed standard. See, e.g.,
It is inconceivable that Congress intended to allow such unfettered agency discretion to amend standards, given the appliance program‘s goal of steadily increasing the energy efficiency of covered products. Further, such a result would completely undermine any sense of certainty on the part of manufacturers as to the required energy efficiency standards at a given time. See note 2, infra. Finally, and most importantly, such a reading would effectively render section 325(o)(1)‘s “anti-backsliding” mechanism inoperative, or a nullity, in these circumstances. Cf. Bd. of Educ. of City Sch. Dist. of City of New York v. Harris, 622 F.2d 599, 611 (2d Cir.1979) (refusing to adopt reading of statute that would render it “in operation, a nullity“); see also Trichilo v. Sec‘y of Health & Human Servs., 823 F.2d 702, 706 (2d Cir.1987) (“we will not interpret a statute so that some of its terms are rendered a nullity“).
The facts of this case perfectly illustrate why, upon DOE‘s publication of the amended standards by the prescribed dates, section 325(o)(1) would operate to further restrict DOE‘s power to amend those published standards downward. It would be incongruous for Congress to impose strict publication deadlines on DOE regarding decisions to amend standards, and yet not consider the act of publication the relevant triggering event for purposes of restricting DOE‘s power subsequently to amend those standards promulgated pursuant to Congress‘s schedule. Were that the case, DOE, as it has done here, could comply with the EPCA‘s publication requirements regarding amendments, but then evade Congress‘s restriction on its discretion to amend by indefinitely suspending their effective date. Such a construction of section 325(o)(1) would allow DOE to comply with the EPCA‘s form, but not its substance, and would render section 325(o)(1) inoperative in numerous scenarios.
In sum, reading section 325 as a whole ineluctably leads to the conclusion that, once DOE has complied with section 325‘s requirement that it prescribe final rules amending home appliance efficiency standards by publishing them in the Federal Register, subsection (o)(1) operates to restrict DOE‘s discretionary ability to amend standards downward thereafter. Consequently, we agree with petitioners that the replacement standards promulgated by DOE on May 23, 2002, were prescribed in violation of section 325 of the EPCA and are thus invalid.
B. DOE‘s Interpretation of Section 325(o)(1)
As noted above, in DOE‘s May 23 notice announcing the final rule promulgating the replacement standards, it also announced a final rule interpreting the application of section 325(o)(1). The final rule interpreted section 325(o)(1) in a way that permitted DOE to amend the efficiency standards prescribed in January 2001. More specifically, it amended the definition section of the consumer appliance conservation program found in the Code of Federal Regulations to include a definition interpreting, among other things, the term “minimum required energy efficiency” used in section 325(o)(1). In so doing, the final rule determined the time at which section 325(o)(1) operated to restrict DOE‘s discretion to amend. ECPCP-ECSCACHP, 67 Fed.Reg. at 36,370-72 & 36,405-06. The definition provides in relevant part:
Minimum required energy efficiency means an energy conservation standard for a covered product ... which is established... by a final rule that has modified this part [of the Code of Federal Regulations] pursuant to a date DOE has selected consistent with the Congressional Review Act ... and any other applicable law, or the date on which DOE completes action on any timely-initiated administrative reconsideration, whichever is later.
Id. at 36,406 (emphasis added). In other words, an amended efficiency standard prescribed by DOE does not become the “minimum required energy efficiency” — and thus section 325(o)(1) is not triggered — until the effective date for a conservation standard selected by DOE “consistent with the Congressional Review Act... and any other applicable law” has passed, or until DOE completes a “timely-initiated” reconsideration of standards it has published as final rules, ”whichever is later.” DOE contends that this court must accept its interpretation of section 325(o)(1)‘s terms.
1.
The central inquiry here is whether DOE‘s interpretation of
a. The Plain Language of Section 325(o)(1) is Inconsistent with DOE‘s Interpretation
In interpreting the plain language of the statute, we must look “to the particular statutory language at issue, as well as the language and design of the statute as a whole, and, where appropriate, its legislative history.” Gen. Motors Corp., 898 F.2d at 170 (internal quotation and citation omitted); see also Dole v. United Steelworkers of Am., 494 U.S. 26, 35, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990) (noting that, when inquiring into congressional intent through means of traditional statutory construction, courts “look to the provisions of the whole law, and to its object and policy“). If these indicators demonstrate that Congress has spoken to the question at issue, “the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778.
As discussed in detail above, subsection (o)(1), read in the greater context of section 325 and in light of the statutory history of that section of the EPCA, admits to only one interpretation: that Congress, in passing the provision, intended to prevent DOE from amending efficiency standards downward once they have been published by DOE as final rules as required by the other provisions of section 325. See id. at 843 n. 9, 104 S.Ct. 2778 (“If a court, using traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.“). Accordingly, the only permissible interpretation is that
This conclusion is supported by the principles animating our policy, under Chevron, of deference to agency interpretations. Although, ambiguity in a statute can be considered “an implicit delegation from Congress to the agency to fill in the statutory gaps,” Brown & Williamson, 529 U.S. at 159, 120 S.Ct. 1291, we “must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of ... political magnitude to an administrative agency,” id. at 133, 120 S.Ct. 1291. Given that the question at issue here is the degree to which DOE‘s discretion has been circumscribed by Congress, we are mindful of another court‘s passing observation that “it seems highly unlikely that a responsible Congress would implicitly delegate to an agency the power to define the scope of its own power.” Am. Civil Liberties Union v. FCC, 823 F.2d 1554, 1567 n. 32 (D.C.Cir. 1987) (per curiam). As we have noted once before, “courts construing statutes enacted specifically to prohibit agency action ought to be especially careful not to allow dubious arguments advanced by the agency in behalf of its proffered construction to thwart congressional intent expressed with reasonable clarity, under the guise of deferring to agency expertise on matters of minimal ambiguity.” Indep. Ins. Agents of Am., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 838 F.2d 627, 632 (2d Cir.1988); see Chao v. Russell P. LeFrois Builder, Inc., 291 F.3d 219, 228 (2d Cir.2002) (quoting Indep. Ins. Agents of Am., 838 F.2d at 632); see also Whitman v. Am. Trucking Assocs., 531 U.S. 457, 485, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (noting that, even under deferential review, agency “may not construe [a] statute in a way that completely nullifies textually applicable provisions meant to limit its discretion“). Accordingly, we find, under the first prong of Chevron, that the DOE‘s interpretation is inconsistent with the plain language of
b. DOE‘s Interpretation Is Not Based on a Permissible Construction of the Statute
Even assuming arguendo that the plain language of the statute was ambiguous as to Congress‘s intent, which it is not, the outcome here would be unchanged, as DOE‘s interpretation is not based on any permissible construction of
Under DOE‘s interpretation,
To take this scenario to its absurd extreme, under its interpretation, DOE could insulate itself from
c. DOE‘s Interpretation Is Entitled to a Lesser Form of Deference, If At All
It is clear from the plain language of the statute and the implausibility of DOE‘s interpretation of
The Supreme Court has clarified Chevron by holding that “administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Mead, 533 U.S. at 226-27, 121 S.Ct. 2164 (emphasis added); see also Russell P. LeFrois, 291 F.3d at 226-28 (applying Mead). While DOE advanced its interpretation of
Moreover, DOE‘s interpretation followed the petitioners’ suits in both this court and the district court arguing that
2. Was DOE‘s Conduct Contrary to its Interpretation of Section 325(o)(1)?
Even assuming that
Furthermore, because the CRA operates independently of, and notwithstanding, any “effective date” set by an agency, its provisions would have trumped the effective date put forth by DOE. See, e.g.,
[T]he CRA does not change the date on which the regulation becomes effective. It only affects the date when the rule becomes operative. In other words, the CRA merely provides for a 60-day waiting period before the agency may enforce the major rule so that Congress has the opportunity to review the regulation.
Liesegang v. Sec‘y of Veterans Affairs, 312 F.3d 1368, 1375 (Fed.Cir.2002), as modified 65 Fed.Appx. 717 (2003). Therefore, we discern no conflict between the CRA and newly prescribed efficiency standards’ “effective dates” for purposes of application to manufacturers, or their “effective dates” for purposes of modifying the CFR.
3. Did DOE Have “Inherent Power” to Reconsider Final Rules?
DOE also claims that the portion of its definition that suspends
DOE cites a number of cases to support its claim that it possesses an inherent power to reconsider a final rule following its announcement in the Federal Register. But as petitioners note, these cases either do not support the proposition or simply recognize the power to reconsider decisions reached in individual cases by agencies in the course of exercising quasi-judicial powers, which are distinct from the legislative powers and their attendant procedures involved in rulemaking. See, e.g., The Dun & Bradstreet Corp. Found. v. USPS, 946 F.2d 189, 193 (2d Cir.1991) (noting, in case involving request by not-for-profit for refund of bulk rate postage paid, that in administrative cases agency generally has power to reconsider both interim and final decisions); Trujillo v. Gen. Elec. Co., 621 F.2d 1084, 1086 (10th Cir.1980) (noting EEOC District Director had power to rescind his right-to-sue letter in employment discrimination case based not only on regulation allowing for reconsideration of a determination of reasonable cause, but also on the power to reconsider that accompanies the power to decide in the first instance); Mazaleski v. Treusdell, 562 F.2d 701, 720 (D.C.Cir.1977) (noting power of the Civil Service Commission to reopen and reconsider decision on wrongful termination claim).
DOE also cites to
DOE, because it concedes that
Lastly, if an agency had an inherent power to reconsider a final rule beyond the specific power to reconsider granted by statutes such as the Clean Air Act, it would call into question the “finality” of final rules for purposes of judicial review.11 In other words, an agency could potentially moot any judicial review proceeding after promulgation of a final rule simply by changing its mind, or, relatedly, courts could be prevented from treating a petition for review as ripe. Cf. NRDC, 683 F.2d at 759 (observing “[i]f an agency could simply alter its regulations any time between their final promulgation and their effective date, that agency would be able to moot a challenge to its ‘final’ regulations at any time“). Notably in this case, DOE did not complete its “reconsideration” until almost a year and a half after it issued the original final rule, arguably inhibiting a court‘s ability to review the original final rule in that time were we to accept DOE‘s postulation of this inherent power.
Therefore, because DOE‘s qualifications of
4. Was the February Delay Rule Promulgated in Accordance with the APA?
As noted above, DOE first amended the original standards’ effective date from February 21, 2001, to April 23, 2001, in a final rule published on February 2, 2001. Then, before the April 23, 2001, date came to pass, DOE suspended the effective date of the original standards indefinitely. Our analysis begins and ends, however, with the February 2 delay because we conclude that the initial delay was not prescribed consistently with the requirements of the APA, and thus did not effect a valid amendment of the original standards’ effective date of February 21, 2001.12
The APA generally requires that, prior to issuing a final rule, an agency should provide both notice and an opportunity for comment to the public.
In its February 2 final rule amending the original standards’ effective date, DOE first noted that the rule was a procedural rule, and thus exempt from both the notice-and-comment and the pre-effective-date publication requirements of the APA.13 66 Fed. Reg. at 8,745. We will not dwell on this justification long because DOE‘s own interpretation of
DOE also found in its notice amending the effective date that there was good cause to not comply with both the notice-and-comment and the pre-effective-date publication requirements: it wished for more time to “review and consider[]” the new efficiency standards, and the effective date designated for those standards was imminent. 66 Fed. Reg. at 8,745. We cannot agree, though, that an emergency of DOE‘s own making can constitute good cause. Cf. Levesque v. Block, 723 F.2d 175, 184 (1st Cir.1983) (concluding imminence of self-imposed deadline did not qualify as good cause to dispense with notice-and-comment before issuing final rule); Council of the S. Mtns., Inc. v. Donovan, 653 F.2d 573, 581 (D.C.Cir.1981) (noting, among other things, that circumstances creating exigency “were beyond the agency‘s control“); see also Zhang, 55 F.3d at 746 (“A mere recitation that good cause exists, coupled with a desire to provide immediate guidance [or take immediate action], does not amount to good cause.“); Envtl. Defense Fund, Inc. v. EPA, 716 F.2d 915, 920 (D.C.Cir.1983) (noting exceptions to notice and comment “are not escape clauses that may be arbitrarily utilized at the agency‘s whim“) (internal quotation omitted; emphasis in original). Furthermore, we fail to see the emergency. The only thing that was imminent was the impending operation of a statute intended to limit the agency‘s discretion (under DOE‘s interpretation), which cannot constitute a threat to the public interest. Cf. NRDC v. Evans, 316 F.3d 904, 911 (9th Cir.2003) (notice and comment should be waived only when delay of rule would do “real harm“); United States Steel Corp. v. EPA, 595 F.2d 207, 213-14 & n. 15 (5th Cir.1979) (noting that mere existence of deadline, whether statutory or court-ordered, does not constitute good cause, and delay of rulemaking past the deadline must threaten “real harm” to justify invocation of exception to notice-and-comment).
Therefore, because the February 2 delay was promulgated without complying with the APA‘s notice-and-comment requirements, and because the final rule failed to meet any of the exceptions to those requirements, it was an invalid rule.14 Cf. Zhang, 55 F.3d at 747. As a consequence, the February 2 rule failed to amend the original standards’ designated effective date.
In sum, subsection (o)(1), when read as a whole and in the context of the regulatory scheme established by Congress in section 325 of the EPCA, unambiguously operates to constrain DOE‘s ability to amend efficiency standards once they are published as final rules in the Federal Register pursuant to section 325‘s requirements. Therefore, the May 23, 2002, final rules promulgated by DOE withdrawing the standards it published as a final rule on January 22, 2001, and replacing them with less stringent standards, were not a valid exercise of DOE‘s authority under the EPCA. Even were we to apply DOE‘s construction of
Conclusion
For the foregoing reasons, the district court‘s judgment of dismissal is affirmed, and petitioners’ request for relief is granted.