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Natural Resources Defense Council, Inc. v. Perry

United States Court of Appeals, Ninth Circuit

October 10, 2019

Natural Resources Defense Council, Inc.; Sierra Club; Consumer Federation of America; Texas Ratepayers' Organization to Save Energy; People of the State of California, by and through Attorney General Xavier Becerra; California State Energy Resources Conservation and Development Commission; State of Maryland; State of Washington; State of Maine; Commonwealth of Massachusetts; State of Vermont; State Of Connecticut; Commonwealth of Pennsylvania; District of Columbia; State of Illinois; State Of New York; State of Oregon; City of New York; State of Minnesota, Plaintiffs-Appellees,
v.
James R. Perry, in his official capacity as Secretary of Energy; U.S. Department of Energy, Defendants-Appellants, and Air-Conditioning, Heating, & Refrigeration Institute, Intervenor-Defendant. Natural Resources Defense Council, Inc.; Sierra Club; Consumer Federation of America; Texas Ratepayers' Organization to Save Energy; People of the State of California, by and through Attorney General Xavier Becerra; California State Energy Resources Conservation and Development Commission; State of Maryland; State of Washington; State of Maine; Commonwealth of Massachusetts; State of Vermont; State of Connecticut; Commonwealth Of Pennsylvania; District of Columbia; State of Illinois; State of New York; State of Oregon; City of New York; State of Minnesota, Plaintiffs-Appellees,
v.
James R. Perry, in his official capacity as Secretary of Energy; U.S. Department of Energy, Defendants, and Air-Conditioning, Heating, & Refrigeration Institute, Intervenor-Defendant-Appellant.

          Argued and Submitted November 14, 2018 San Francisco, California

          Appeals from the United States District Court Nos. 3:17-cv-03404-VC, 3:17-cv-03406-VC, for the Northern District of California Vince Chhabria, District Judge, Presiding

         COUNSEL

          H. Thomas Byron III (argued) and Mark B. Stern, Appellate Staff; Alex G. Tse, Acting United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

          Ian Fein (argued), Natural Resources Defense Council, San Francisco, California; Aaron Colangelo, Natural Resources Defense Council, Washington, D.C.; Daniel Carpenter-Gold, Natural Resources Defense Council, New York, New York; for Plaintiff-Appellee Natural Resources Defense Council, Inc.

          Timothy D. Ballo, Earthjustice, Washington, D.C., for Plaintiffs-Appellees Sierra Club, Consumer Federation of America, and Texas Ratepayers' Organization to Save Energy.

          Somerset Perry (argued) and Jaime Jefferson, Deputy Attorneys General; Susan S. Fiering, Supervising Deputy Attorney General; Sally Magnani, Senior Assistant Attorney General; Office of the Attorney General, Oakland, California; Bryant B. Cannon, Deputy Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; Lisa Kwong and Timothy Hoffman, Assistant Attorneys General; Patrick A. Woods, Assistant Solicitor General; Environmental Protection Bureau, Office of the Attorney General, Albany, New York; George Jepsen, Attorney General; Robert Snook and Matthew Levine, Assistant Attorneys General; Office of the Attorney General, Hartford, Connecticut; Lisa Madigan, Attorney General; Gerald T. Karr, Assistant Attorney General; Attorney General's Office, Chicago, Illinois; Janet T. Mills, Attorney General; Susan P. Herman, Deputy Attorney General; Office of the Attorney General, Augusta, Maine; Brian E. Frosh, Attorney General; Steven M. Sullivan, Solicitor General; Office of the Attorney General, Baltimore, Maryland; Maura Healey, Attorney General; Shennan Kavanaugh and I. Andrew Goldberg, Assistant Attorneys General; Office of the Attorney General, Boston, Massachusetts; Max Kieley, Assistant Attorney General, Office of the Attorney General, St. Paul, Minnesota; Ellen F. Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Denise G. Fjordbeck, Attorney-in-Charge, Civil Administrative Appeals; Jesse Ratcliffe, Assistant Attorney General; Natural Resources Section, Oregon Department of Justice, Salem, Oregon; Josh Shapiro, Attorney General; Michael J. Fischer, Chief Deputy Attorney General; Office of the Attorney General, Harrisburg, Pennsylvania; Thomas J. Donovan Jr., Attorney General; Julio A. Thompson and Laura B. Murphy, Assistant Attorneys General; Attorney General's Office, Montpelier, Vermont; Bob Ferguson, Attorney General; Laura J. Watson, Senior Assistant Attorney General; Office of the Attorney General, Olympia, Washington; Karl A. Racine, Attorney General; Loren L. AliKhan, Solicitor General; Office of the Attorney General, Washington, D.C.; Zachary W. Carter, Corporation Counsel; Susan E. Amron, Chief, Environmental Law Division; Haley Stein, Counsel; New York City Law Department, New York, New York; for Plaintiffs-Appellees People of the State of California, California State Energy Resources Conservation and Development Commission, State of New York, State of Connecticut, State of Illinois, State of Maine, State of Maryland, State of Massachusetts, State of Minnesota, State of Oregon, State of Pennsylvania, State of Vermont, State of Washington, District of Columbia, and City of New York.

          Stuart Drake and C. Harker Rhodes IV, Kirkland & Ellis LLP, Washington, D.C.; Mark E. McKane and Austin L. Klar, Kirkland & Ellis LLP, San Francisco, California; for Intervenor-Defendant-Appellant.

          Before: Mary M. Schroeder and Paul J. Watford, Circuit Judges, and David A. Ezra, [*] District Judge.

         SUMMARY [**]

         Department of Energy / Regulations

         The panel affirmed the district court's order directing the U.S. Department of Energy ("DOE") to publish four energy-conservation standards in the Federal Register.

         The district court agreed with the plaintiffs' contention that a DOE regulation known as the "error-correction rule," 10 C.F.R. § 430.5, imposed upon DOE a non-discretionary duty to publish the standards in the Federal Register, and its refusal to do so violated the rule.

         The plaintiffs are a group of States and municipalities as well as several environmental and consumer organizations. They brought suit against DOE under the Energy Policy and Conservation Act (EPCA)'s citizen-suit provision.

         The panel rejected DOE's challenges to the district court's assertion of jurisdiction under 42 U.S.C. § 6305(a)(2). The panel held that DOE relinquished whatever discretion it might have had to withhold publication of the rules at issue when it adopted the error-correction rule. The panel further held that by delaying publication of the four rules beyond the period permitted under the error-correction rule, DOE violated the non-discretionary duty imposed by its own regulation. The panel also held that plaintiffs were not precluded from bringing the action under 42 U.S.C. § 6305(a)(2). The panel held that § 6305(a)(2) provided the necessary clear waiver of sovereign immunity from citizen suits predicated on a non-discretionary duty imposed either by statute or regulation.

         The panel held that the plaintiffs properly invoked EPCA's citizen-suit provision to challenge DOE's failure to perform is non-discretionary duty to submit the four rules at issue for publication in the Federal Register.

          OPINION

          WATFORD, CIRCUIT JUDGE

         These appeals arise from consolidated actions brought by plaintiffs who seek to compel the United States Department of Energy (DOE) to promulgate four energy-conservation standards. The standards received final approval by DOE at the end of the Administration of President Obama, but thus far, under the Administration of President Trump, DOE has declined to promulgate them. The plaintiffs contend that a DOE regulation known as the "error-correction rule," 10 C.F.R. § 430.5, imposes upon DOE a non-discretionary duty to publish the standards in the Federal Register, and that its refusal to do so violates the rule. The district court agreed and issued an order directing DOE to publish the four ...


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