Petition for Writ of Certiorari — Air Conditioning & Refrigeration Institute v. Energy Resources Conservation & Development Commission

Supreme Court brief2005

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pliance Energy Conservation Act of 1987 (NAECA)’; the En-

ergy Policy Act of 1992 (EPAct)*; and just recently, the En-

ergy Policy Act of 2005.°

One critical component of this national energy policy was

the enactment of comprehensive legislation governing the en-

ergy efficiency of certain consumer products (such as refrig-

erators, air conditioners, washers, dryers, ovens and water

heaters, see 42 U.S.C. § 6292(a)), and commercial and indus-

trial equipment (such as electric motors and pumps, and com-

mercial heating and air cuialitioning equipment, see id.

§ 6311(1)). To promote energy conservation, Congress im-

posed numerous, specific and wide-ranging requirements re-

lated to energy efficiency. These include, among other

things, standards limiting the products’ permissible energy

use, id. §§ 6295, 6313; test procedures to evaluate their en-

ergy use, id §§ 6293, 6314; labeling requirements, id.

§§ 6294, 6315; and requirements regarding the submission of

product information to the Department of Energy, id.

§ 6296(d). See S. Conf. Rep. No. 94-516, at 119, 1975

U.S.C.C.A.N. at 1960 (“[EPCA] would require test proce-

dures for, and energy efficiency labeling of, major home ap-

pliances”).

This statutory scheme, comprehensive on its Own, is sup-

plemented by even more involved federal regulations prom-

ulgated by the Department of Energy and the Federal Trade

Commission. The Department of Energy specifies in detail

the manner in which regulated products must be tested. See

generally 10 C.F.R. pts. 430, 431; eg, 10 C.F.R. §§ 431.16-

18, 431.76, 431.86, 431.96. Both the Department of Energy

and the Federal Trade Commission regulate the labeling of

these products, see 42 U.S.C. §§ 6294, 6315; 16 C.F.R.

* Pub. L. No. 100-12, 101 Stat. 103 (1987).

* Pub. L. No. 102-486, 106 Stat. 2776 (1992) (codified at 42 U.S.C.

§ 6311 ef seq.).

* Pub. L. No. 109-58, 119 Stat. $94 (2005) (to be codified in scattered

sections of titles 7, 15, 16, 25, 30, 41 and 42 of the United States Code).

§ 305.11-.12 & app.L; 10 C.F.R. § 431.30-.31, and impose

requirements related to the submission of data to the federal

government, see e.g., 10 C.F.R. § 430.62, 431.36; 16 C.F.R.

§ 305.8, 305.11-.14. Moreover, the Federal Trade Commis-

sion makes available to the public, through a web site, infor-

mation concerning the energy efficiency of many of the regu-

lated products. See Federal Trade Comm'n, Appliance En-

ergy Data, http://ftc.gov/bcp/conline/edcams/eande/appli-

ances/index.htm (last visited Sept. 9, 2005).

These regulations are not omy comprehensive, but ex-

tremely detailed. With regard to labeling, for instance, regu-

lations specify not just the contents of the label, but the pre-

cise text, as well as the type font and size, the paper stock,

and the placement of the label, among other things. 16 C.F.R.

§ 305.11 & app.L.

It is unsurprising, given Congress’s goal of developing a

“comprehensive” national energy policy—and the thorough

statutory and regulatory regime that resulted—that, as part of

these statutes, Congress enacted express preemption provi-

sions. These provisions concern consumer appliances, see 42

U.S.C. § 6297, and industrial equipment, see id. § 6316.°

They expressly preempt state energy standards and testing

requirements. And, pertinent here, § 6297(a)(1) preempts

“any State regulation [that] ... provides at any time for the

disclosure of information with respect to any measure of en-

ergy consumption,” so long as the State requires testing or

information disclosure “other than” the federal requirements.

Id. § 6297(a)(1).

These preemption requirements are an integral component

of Congress’s effort to promote energy conservation. The

* Consumer appliances are referred to in the statute as “covered prod-

ucts,” see 42 U.S.C. § 6297, and commercial and industrial equipment are

designated as “covered equipment,” id. § 6316(a)(3), 6311(1). Section

6316 incorporates § 6297 by reference, and the two provisions are identi-

cal in all respects relevant here. Accordingly, this brief discusses the two

provisions in tandem.

1987 act (NAECA), for instance, had “two central tenets,”

one of which was that “the bill preempts state law under most

circumstances.” H.R. Rep. No. 100-11, at 19 (1987).

NAECA’s preemption provision was “designed to protect the

appliance industry from having to comply with a patchwork

of numerous conflicting State requirements,” id. at 24. In-

deed, NAECA reasserted federal control in light of a “grow-

ing plethora of differing state regulations,” and Congress in-

tended, through the imposition of “uniform standards,” to

“bring a degree of regulatory ... certainty to the business

planning of the appliance manufacturing industry, which has

had to grapple in recent years with a growing number of dif-

fering State appliance laws and regulations.” /d. at 28.’

Congress placed two important limitations on the otherwise

expansive scope of the statutes’ preemption. First, recogniz-

ing that some States might face unique circumstances, it in-

cluded a safety valve. A State that wishes to impose an “en-

ergy conservation standard or other requirement with respect

to energy use, energy efficiency, or water use” may do so if it

demonstrates “unusual and compelling State or local energy

or water interests.” 42 U.S.C. § 6297(d)(1)(A), (B). Thus, a

State that has interests “substantially different in nature or

magnitude than those prevailing in the United States gener-

ally,” id. § 6297(d)(1)(C)(i), may be excused from the other-

wise broad scope of preemption, if it makes the relevant

showing to the Secretary of Energy, 10 C.F.R. § 430.40-.49.

(Notably, however, even where this safety valve is concerned,

"Accord S. Rep. No. 100-6, at 2 (1987), reprinted in 1987

U.S.C.C.A.N. at 52 (NAECA was meant “to reduce the regulatory and

economic burdens on the appliance manufacturing industry”); id. at 4,

1987 U.S.C.C.A.N. at 54-55 (noting that under the existing state of the

law, “appliance manufacturers were confronted with the problem of a

growing patchwork of differing State regulations which would increas-

ingly complicate their design, production and marketing plans. Regula-

tions in a few populous States could as a practical matter determine the

product lines sold nationwide, even in States where no regulations ex-

isted.”’).

national interests predominate. See 42 U.S.C. § 6297(d)\3)).

Second, Congress expressly grandfathered in certain existing

state requirements, see, e.g., id. § 6297(c)(4), (S)-—including

provisions of the California Code of Regulations, see id.

§ 6316(b)(2)(C). Outside these circumstances, however, state

law is broadly preempted.

2. At almost exactly the same time Congress enacted

EPCA, the State of California undertook its own efforts to

regulate energy policy generally, and energy efficiency spe-

cifically. In 1975 the California Legislature established the

California Energy Commission (CEC),* Cal. Pub. Res. Code

§§ 25200-25226, which, among other purposes, is tasked with

studying “[i]mproved appliance efficiency,” id. § 25401(d),

and prescribing energy efficiency standards and labeling, id.

§ 25402(c)(1)-(2). CEC did not, however, regulate informa-

tion disclosure until later.

At issue here are three regulations promulgated by CEC in

2002—namely, California Code of Regulations, title 20,

§§ 1606-1608. Section 1606 directs manufacturers of numer-

ous products (refrigerators, ice makers, air conditioners, ceil-

ing fans, space heaters, lamps, and the like, see id. § 1606

tbl.V) to disclose detailed and voluminous information to

CEC. The required information includes details about the

manufacturer, see id. § 1606(a)(2), as well as identifying in-

formation about the product, such as the brand name and

model number, id. § 1606 tbl.V. Furthermore, § 1606 re-

quires the manufacturer to submit test results and test reports,

the particulars of which are specified in minute detail, id.

§ 1606(a)(3)(A) (cross-referencing id. §§ 1603 and 1604,

which specify test protocols), as is the manner in which these

results must be reported, id. § 1606(a)(3)(E). The regulations

further identify several hundred items of product-specific in-

formation that manufacturers must submit to CEC, many of

* “California Energy Commission” or “CEC” is the commonly used

name for Respondent Energy Resources Conservation and Development

Commission.

which relate to energy consumption.” These requirements are

far more extensive than the federal government’s disclosure

requirements. For instance, manufacturers of residential gas

furnaces must disclose only six or seven items of information

to the federal government, see 16 C.F.R. § 305.8(a)(1), but

they must disclose well over 20 pieces of information to CEC,

see Cal. Code Regs. tit. 20, § 1606(a)(2) & tbl.V, at E; see

also id. § 1606 tbl.V, at C (requiring manufacturers of resi-

dential air conditioners to disclose more than 20 pieces of in-

formation not required by federal regulation). This informa-

tion is compiled by CEC into a database, id. § 1606(c), which

is available to the public, see CEC, Appliance Efficiency and

Appliance Regulations, http://www.energy.ca.gov/efficiency/

appliances (last visited Sept. 9, 2005).

In addition to § 1606's information-disclosure require-

ments, § 1607 sets forth “marking” requirements—i.e., label-

ing instructions. Specifically, the regulation requires that

each appliance’s name, model number and date of manufac-

ture must be marked on the unit itself, Cal. Code Regs. tit. 20,

§ 1607(b) (with certain limited exceptions, id. § 1607(c)); that

the products carry all of the markings required by the federal

regulations listed at 16 C.F.R. pt. 305, see Cal. Code Regs. tit.

20, § 1607(d); and, furthermore, that certain federally regu-

lated appliances must additionally be labeled with prescribed

energy performance information, see id. § 1607(d)(2) &

tbl. W.

The enforcement mechanism that stands behind these re-

quirements is both powerful and destructive of interstate

commerce. Simply put, no listed appliance may be sold in

California unless, pursuant to § 1606, the manufacturer has

submitted the required information to CEC and CEC has en-

* See, e.g., Cal. Code Regs. tit. 20, § 1606 tbl. V, at C (requiring infor-

mation about the motor type, fan motor design and nominal horsepower of

a central air conditioner); id. § 1606 tbl. V, at F (voltage of heat pump wa-

ter heaters); id § 1606 tbl. V, at K (wattage of lamps); id. § 1606 tbl. V, at

S (rated horsepower of electnc motors).

tered the information into its database, and unless the labeling

requirements of § 1607 are met. See id. § 16US(a).

Il. PROCEDURAL BACKGROUND

1. CEC adopted the challenged regulations in 2002. Be-

fore the regulations went into effect, the four trade associa-

tions that are petitioners here (“the Associations”) sought a

preliminary injunction to prevent implementation of the regu-

lations. The district court granted a preliminary injunction as

to most of the challenged provisions. Pet. App. 26a-27a.

In response to the injunction, the CEC undertook an emer-

gency rulemaking by which it amended certain of the state

regulations, Pet. App. 27a, and which mooted certain aspects

of the Associations’ challenge. That rulemaking did not re-

solve all of the regulations’ infirmities, so the Associations

moved for—and were granted—a permanent injunction.

Relevant here, the CEC was enjoined from implementing the

information-disclosure provisions of § 1606, id. at 36a-39a;

the marking provisions of § 1607, id. at 29a-35a; and various

aspects of the § 1608 enforcement regime, id. at 40a-4 1a.

The district court properly recognized that § 1606's infor-

mation-disclosure requirements force manufacturers to submit

data to CEC that is, in the language of the preemption provi-

sion, “with respect to any measure of energy consumption or

water use.” 42 U.S.C. § 6297(a)(1). The court rejected

CEC’s argument that the term “disclosure of information” in

§ 6297 preempts only state requirements concerning informa-

tion that is disclosed to consumers at the point of sale, id. at

36a-38a. Further, the district court held, § 1607’s labeling

obligations require manufacturers to include information on

their products that federal regulations do not mandate, and

therefore the regulation is preempted. /d. at 29a-32a.

2. On appeal, a divided panel of the Ninth Circuit reversed.

After praising California's “laudable” regulatory regime, Pet.

App. 2a, the court proceeded to employ a strong “presump-

tion against preemption,” id. at 4a. It determined that every

claim of preemption must be met with a “starting presumption

that Congress did not intend to supplant state law” and that,

accordingly, “express preemption statutory provisions should

be given a narrow interpretation.” Jd. It then imposed a se-

ries of “narrow interpretation[s]” on the federal preemption

provisions. With regard to information disclosure, its “nar-

row interpretation” of § 6297 caused it to interpret the term

“disclosure of information” to encompass only “disclosure of

information on labels directed to consumers at point of sale

or use.” Id. at 7a (emphasis added); see also id. at 8a-12a.

Measuring § 1606 against these criteria, it held that the regu-

lations are not preempted.

The court likewise determined that the federal preemption

provisions are subject to a “narrow interpretation” with regard

to California’s labeling regulations. In service of its narrow-

ing construction, it limited the capacious phrase “with respect

to,” and thereby determined that California’s labeling re-

quirements were not “with respect to any measure of energy

consumption,” Pet. App. 1I5a-l6a (quoting 42 U.S.C.

§ 6297)}—despite the fact that CEC had conceded as much

before the district court. And, it went on to conclude, where

Congress had authorized federal agencies to promulgate cer-

tain labeling standards but the agencies had not yet done so,

California’s own labeling requirements could not be pre-

empted as “other than information required” under federal

law. Id. at 17a-19a.

Judge Noonan dissented. He recognized that the court’s re-

sponsibility in interpreting the statute was to employ “an ex-

act reading of [the} broad term [‘disclosure’].” Accordingly,

he began with the plain meaning of the phrase “disclosure of

information,” Pet. App. 2la (quoting Webster's Third New

International Dictionary (3d ed. 1993)), and, on that basis,

concluded that the term “disclosure” was “compendious,” and

that CEC’s regulations are preempted. /d. at 2la-22a. He

criticized the majority for its “[i]mpatience with the restraints

imposed by the precise preemptive words of the statute,” and

for “indulg{ing} idiosyncratic imagination” in its interpreta-

tion of the phrase “other than.” /d. at 22a. And, finally, he

recognized that the majority's application of a “presumption

against preemption” was unwarranted. Thus, he suggested,

this Court's reversal of the Ninth Circuit's decision in EMA

“may be augury of what is to come.” /d.

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW CONFLICTS WITH

THIS COURT’S DECISION IN ENGINE MANU-

FAC7 URERS ASSOCIATION.

Just two Terms ago, in EMA, eight Justices of this Court

made it plain that an express preemption provision should be

interpreted according to its text and structure, and that courts

may not read artificial limitations into a statute that appear

nowhere on its face—which is precisely what the court below

did in this case. The lower court’s approach in EMA was at-

tacked by the United States in its amicus brief as harmful to

the federal interests embodied in the Clean Air Act. The de-

cision below in this case threatens manufacturers with just the

sort of patchwork of state regulation that this Court deemed

unacceptable in EMA, in accordance with the views of the

Solicitor General. The result in this case harms manufactur-

ers, and undermines the significant federal interest in uni-

formity embodied in 30 years of federal energy legislation.

1. In the decision below, the Ninth Circuit employed pre-

cisely the same interpretive methodology that it used in EMA,

and that this Court rejected. Just as in EMA, the lower court

began with a robust presumption against preemption. Pet.

App. 4a & n.1.'° With that presumption in hand, the court

then applied a “narrow interpretation” to the federal preemp-

tion provision, § 6297. The phrase “narrow interpretation”

° As this petition demonstrates, the Ninth Circuit employed this pre-

sumption improperly and in conflict with decisions of this Court and other

courts of appeals. See infra Section II.

and its variants appear twelve times in the majority opinion,

see id. at 4a, 7a, 8a & n.5, 12a, 14a—an unmistakable indica-

tion that the court intended to constrict the statute’s plain

meaning. And, that is precisely what it did The federal stat-

ute preempts “any State regulation [that] provides at any time

for the disclosure of information with respect to any measure

of energy consumption,” if the regulation requires “testing,”

“the use of any measure of energy consumption,” or “disclo-

sure of information” “other than” that required by the federal

statute. 42 U.S.C. § 6297(a)(1)(A), (B). Here, it is undis-

puted that the California regulations require manufacturers to

provide information that the federal regime does not. When

confronted with the statutory phrase “disclosure of informa-

tion,” however, the Ninth Circuit interpreted it to mean

“only” “labeling directed to consumers at point of sale or

use.” Pet. App. 8a.. Not all state regulations that require

manufacturers to “disclose” information would be preempted,

but rather only those that meet the Ninth Circuit's nontextual

As a threshold matter, this interpretation is a “radical reduc-

tion of the key statutory term[] ‘[djisclosure,"” which assur-

edly has no built-in exception for divulgences to the govern-

ment. Pet. App. 21a (Noonan, J., dissenting); see also id.

(“Just as the meaning of ‘disclose’ is ‘to e. , ose to view’ or

‘to make known,’ so the substantive noun referencing such an

act is so extensive that it encompasses every compulsory

revelation of the relevant information.”); Webster's Third

New International Dictionary 645 (3d ed. 1993) (defining

“disclosure” broadly to include “the act or an instance of

opening up to view, knowledge or comprehension”); Black's

Law Dictionary 497 (8th ed. 2004) (“[t}he act or process of

making known something that was previously unknown”).

Nor does the distinction drawn by the Ninth Circuit make

sense in any event, because CEC makes available to the pub-

lic the information that it requires manufacturers to provide—

a fact that CEC itself touted to the Ninth Circuit. See Appel-

lants’ Opening Br. at 8-9.

2. Leaving aside these obvious errors, what is critical

here—and what undeniably merits this Court’s attention—is

that the Ninh Circuit employed precisely the interpretive

methodology in the decision below that this Court rejected in

EMA. As in this case, the Ninth Circuit in EMA began by

employing presumptions and narrowing constructions. EMA,

158 F. Supp. 2d 1107, 1111 (C.D. Cal. 2001), aff'd, 309 F.3d

$50 (9th Cir. 2002) (per curiam).'' It then concluded that a

provision of the Clean Air Act, whic forbids States from

adopting or enforcing “any standard relating to the control of

emissions from new motor vehicles,” 42 U.S.C. § 7543(a)

(emphasis added), did not preempt (as this Court character-

ized the argument) “standards imposed through purchase re-

strictions,” 541 U.S. at 256. On review, by contrast, this

Court began with the language of the statute, and interpreted

the plain meaning of the text with reference to dictionaries.

Id. at 252-53. Agreeing with the Solicitor General that the

Ninth Circuit’s interpretation was “untenable as a textual mat-

ter,” Br. of United States at 24, EMA, 541 U.S. 246 (2004)

(No. 02-1343), this Court roundly rejected the attempt to give

the statute a “qualified meaning,” because that qualification

had “no basis in the text of the statute.” 541 U.S. at 254, 255.

The Court recognized that, because the plain text of the stat-

ute is “categorical,” the statute admitted of no exceptions for

certain subsets of “standards” favored by the state regulators

(namely,. “standards imposed through purchase restrictions”).

Id. at 256.

EMA and the decision below are indistinguishable. In each

case, the underlying statute employs a common English word

that the statute did not define in specialized fashion: “stan-

dards” and “disclosure.” In each case, the Ninth Circuit em-

'' The Ninth Circuit issued an order adopting in whole the district

court’s “well-reasoned opinion,” 309 F.3d at 551, so all citations are to the

district court opinion.

ployed a nontextual limiting construction that preserved the

“laudable” state regulation from preemption. In EMA, this

Court granted certiorari to reverse the Ninth Circuit’s mis-

taken limiting construction that did serious violence to impor-

tant federal interests in uniform regulation. It should do the

same here.

Il. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT AND OTHER

COURTS OF APPEALS REGARDING THE “PRE-

SUMPTION AGAINST PREEMPTION,”

The court of appeals’ erroneous decision, and the resulting

conflict with this Court’s decision in EMA, resulted in large

measure from its improper application of the so-called “pre-

sumption against preemption,” which caused it to misconstrue

the statute in an inappropriately narrow fashion. This Court

has explained that the presumption is not appropriate in all

situations, but the decision below ignored that admonition.

And, in that regard, the decision below is not alone; at least

two other circuits have applied the presumption in the same

mistaken fashion (in contrast to at least five circuits that faith-

fully apply this Court’s precedents). Accordingly, review is

additionally warranted to address the conflict between the

Ninth Circuit’s decision and this Court’s precedents, and to

resolve the conflict among lower courts on this issue.

1. This Court has, in recent years, plainly and repeatedly

made clear that the “presumption against presumption” ap-

plies only to subjects that States traditionally have occupied.

See Pet. App. 22a (Noonan, J., dissenting) (“[The] presump-

tion against preemption [is] only triggered by ... showing the

field to be one traditionally occupied by the states.”). In

Buckman Co. v. Plaintiffs Legal Committee, the Court held

that a question of preemption in “‘a field which the States

have traditionally occupied’ ... warrant[s] a presumption

against finding federal pre-emption of a state-law cause of

action.” 531 U.S. 341, 347 (2001) (citation omitted). But,

because no such regulatory field was at issue in that case, “no

presumption against pre-emption obtains.” /d. at 348. Other

cases have held likewise. See, e.g., Bates v. Dow Agro-

sciences LLC, 125 S. Ct. 1788, 1801 (2005) (“In areas of tra-

ditional state regulation, we assume that a federal statute has

not supplanted state law ....”); United States v. Locke, 529

U.S. 89, 107-08 (2000) (““assumption’ is triggered where ‘the

field which Congress is said to have pre-empted has been ira-

ditionally occupied by the States”); De Buono v. NYSA-ILA

Med. & Clinical Servs. Fund, 520 U.S. 806, 813 n.8. (1997).

In addition, the presumption does not apply “when the State

regulates in an area where there has been a history of signifi-

cant federal presence.” Locke, 529 U.S. at 108.

The Ninth Circuit's rule conflicts directly with these prece-

dents. That court holds that the presumption a/ways applies

unless there is a “history of significant federal presence.” Pet.

App. 4a. This analysis turns the governing rule on its head:

This Court’s default rule is that the presumption does not ap-

ply, whereas the Ninth Circuit’s default rule is that the pre-

sumption does apply. Although it is assuredly true that a his-

tory of federal regulation is a sufficient condition to assume

preemption, see Locke, 529 U.S. at 108, it is just as certainly

not a necessary condition, as the Ninth Circuit held. And, it is

Clear that this is the rule the lower court employed, because it

made no effort to consider whether energy conservation is a

traditional area of state regulation; rather, it simply reasoned

that the presumption against preemption mandated a “narrow

interpretation” of the federal statute. Pet. App. 4a.

Here, there is no tradition of state regulation that could jus-

tify butchering the plain meaning of Congress’s express pre-

emption provision. As noted above, the CEC was created in

1975—the same year EPCA was enacted—and in response to

the same event (the Arab oil embargo). California did not

require energy-efficiency information disclosure in any form

until 1977, Pet. App. 2a, and most of the current requirements

did not come until substantially later. The fact that one State

began to regulate efficiency information concerning appli-

ances after the federal government did so hardly qualifies this

at “‘a field which the States have traditionally occupied.””

Buckman, 531 U.S. at 347. EMA demonstrates that such a

limited history is not enough. There, the California govern-

mental entity asserted that California's efforts to regulate mo-

tor vehicle emissions predated federal efforts by nearly a dec-

ade, but this Court saw no cause to apply a presumption

against preemption. A fortiori, no presumption is applicable

here, where federal and state regulation were, at most, con-

temporaneous. The rule announced by the Ninth Circuit, in

short, directly conflicts with this Court’s precedents, and the

petition should according], be granted.

2. The need for review is all the more acute because there

is a conflict among the federal courts of appeals over the cir-

cumstances in which a presumption against preemption

should apply. The First, Second, Eighth, Eleventh and Dis-

trict of Columbia Circuits hold, consistent with this Court’s

precedents, that the presumption against preemption applies

to a field in which there is a “significant” history of state

regulation, or that is a “traditional” area of state regulation.

See UPS, Inc. v. Flores-Galarza, 318 F.3d 323, 336 (Ist Cir.

2003) (the presumption against preemption “only arises ... if

Congress legislates in a field traditionally occupied by the

states”); Wachovia Bank, N.A. v. Burke, 414 F.3d 305, 314

(2d Cir. 2005); Forest Park Il v. Hadley, 336 F.3d 724, 731

(8th Cir. 2003) Cliff v. Payco Gen. Am. Credits, Inc., 363

F.3d 1113, 1125 (1ith Cir. 2004); Massachusetts v. United

States Dep't of Transp., 93 F.3d 890, 894 (D.C. Cir. 1996);

see also Bronco Wine Co. v. Jolly, 95 P.3d 422, 429 (Cal.

2004), cert. denied, 125 S. Ct. 1646 (2005).

In conflict with this rule, the Fourth and Seventh Circuits

have adopted the broader formulation of the Ninth Circuit,

and treat a presumption against preemption as the default rule.

See Pinney v. Nokia, Inc., 402 F.3d 430, 453 (4th Cir. 2005),

petitions for cert. filed, 74 U.S.L.W. 3108, 3114 (U.S. Aug.

10, 2005) (Nos. 05-198, 05-207); College Loan Corp. v. SLM

Corp., 396 F.3d 588, 597 (4th Cir. 2005); Frank Bros., Inc. v.

Wisconsin Dep't of Transp., 409 F.3d 880, 885 (7th Cir.

2005) (“we presume that, in all circumstances, ‘Congress

does not intend to supplant state law’” (emphasis added)). As

this case shows, preemption will often turn on whether the

court attempts to apply the ordinary meaning of the statute, or

an artificially narrow one. Accordingly, the starting point is

outcome determinative, and a conflict among the circuits on

such a fundamental issue of federal supremacy warrants this

Court’s review.

3. Having mistakenly applied the presumption against pre-

emption, the Ninth Circuit believed that it should therefore

employ a “narrow interpretation” of the federal preemption

provisions, which in turn led to multiple errors in the decision

below. As noted above, the lower court interpreted the term

“disclosure of information,” as it applies to § 1606’s disclo-

sure provisions, in a mistakenly narrow fashion. See supra

Section I. It did likewise with regard to the marking require-

ments contained in § 1607 of the California regulations.

Section 6297 preempts state regulations that require a “dis-

closure of information” that is “with respect to any measure

of energy consumption or water use of any covered product,”

42 U.S.C. § 6297(a)(1) (emphasis addvd), if the disclosure of

information is not required by the federal statute, id.

§ 6297(a)(1)(B). The linchpin here is the phrase “with re-

spect to.” The statute does not merely preempt “measure(s]

of energy consumption or water use”—it also preempts any

regulation that is “with respect to” such a measure. The

phrase “with respect to” by its nature indicates the expansive

preemptive scope of the provision. This Court repeatedly has

held that modifiers like this one indicate a “broad pre-emptive

purpose.” See, e.g., Morales v. Trans World Airlines, 504

U.S. 374, 383-84 (1992) (interpreting the phrase “related to”

in ERISA).

The information that must be included on product labels

pursuant to California marking requirements is assuredly

“with respect to any measure of energy consumption.” Sec-

tion 1607 of the California regulations requires manufacturers

to include on the label its name, brand name or trademark; the

appliance’s model number; and the date of manufacture. Cal.

Code Regs. tit. 20, § 1607(b)(1)-(3). The very purpose of this

regulation is to govern measures of energy consumption. The

regulation appears within the title of the California Code of

Regulations devoted to “Public Utilities and Energy”; in a

division of that title entitled “State Energy Resources Conser-

vation and Development Commission”; in an article named

“Appliance Efficiency Regulations”; and the self-evident pur-

pose of these labeling requirements is to assist in making de-

terminations about the product’s compliance with energy con-

sumption standards. Indeed, CEC conceded as much in the

district court. Tr. of 12/05/2002 Hr’g on Mot. for Prelim. Inj.,

at 41-42.

The Ninth Circuit, however, failed to accord this phrase its

common and broadly preemptive meaning. _ That court

showed no recognition of the breadth of the phrase. It cited

Egelhoff and Travelers, in which this Court reaffirmed that

“relates to” preemption is “clearly expansive,” but it made no

mention of that holding. Pet. App. 15a; see Egelhoff v. Egel-

hoff ex rel. Breiner, 532 U.S. 141, 147 (2001); New York

State Conf. of Blue Cross & Blue Shield Plans v. Travelers

Ins. Co., 514 U.S. 645, 655 (1995). Instead, the lower court

employed only the language from those cases stating that

there must be some outer limit on the term “relates to.” See,

e.g., Egelhoff, 532 U.S. at 146 (“the term ‘relate to’ cannot be

taken ‘to extend to the furthest stretch of its indeterminacy”);

see Pet. App. | Sa.

This is of course true, but it hardly means—as the Ninth

Circuit interpreted it—-that the preemptive phrase must be

“narrowly interpreted.” On the contrary, Egelhoff recognizes

that a broadly framed term like “relates to” preempts every-

thing that “‘has a connection with or reference to” the pre-

empted field. 532 U.S. at 147. And, the labeling require-

ments of § 1607(d)(2) surely have “a connection with”

“measure[s] of energy consumption.” They are not “gener-

ally applicable laws regulating ‘areas where [the federal stat-

ute] has nothing to say,”” id. at 147-48; they are instituted for

the very purpose of supplementing the federal regulations.

Moreover, by imposing requirements that the federal statute

and regulations do not, the California regulations “interfere[]}

with nationally uniform” labeling, and “subject [manufactur-

ers] to different legal obligations in different States.” /d. at

148. In short, the lower court’s mistaken use of the presump-

tion against preemption led it to a result that is directly con-

trary to the system of national uniformity that Congress envi-

sioned.

The decision below was similarly mistaken in its interpreta-

tion of § 1607(d)(2), and its error again seems rooted in the

court’s “narrow interpretation” of the statute. Section

1607(d)(2) of the California regulations requires manufactur-

ers of specified products to label the products with “energy

performance information.” The Ninth Circuit reasoned that

‘ because § 6297 preempts only “disclosure of information”

that is “other than information required under” the federal

statute, 42 U.S.C. § 6297(a)(1)(B), and because no federal

regulation yet governs disclosure of this information, this re-

quirement is not “other than” a federal requirement.

This interpretation simply makes no sense unless the sole

purpose of the interpretive exercise is to preserve state law.

Because the federal regulations do not yet require any infor-

mation to be disclosed, the state requirement of course man-

dates a “disclosure of information” that is “other than infor-

mation required under” the federal scheme. As Judge Noonan

recognized in dissent:

Where there are no federal regulations on the subject be-

cause the DOE has not promulgated any regulations,

then any state regulations are “other than” those feder-

ally required. T,.. court indulges idiosyncratic imagina-

tion in supposing that there must be federal regulations

in existence for “other than” to apply. Au contraire, if

nothing exists, any state regulations are other than what

exists as federal regulation. The fundamental tenet of

express preemption is that Congress may preclude state

involvement, even where it chooses not to regulate.

Through its misreading of “other than” the court has im-

posed a heightened burden on the manufacturers to show

implied preemption, despite Congress’ express statement

of preemption.

Pet. App. 22a. If California thinks that the Department of En-

ergy has an obligation to adopt labeling requirements, the ap-

propriate response is not to piow ahead with regulations of its

own in violation of the statutory preemption provision; rather,

it may seek to compel the Department of Energy to adopt

regulations by using the citizen-suit provision created by Con-

gress. See 42 U.S.C. § 6305(a)(2).'

The Ninth Circuit’s contrary, anti-preemption interpretation

of “other than” would lead to a race to regulate. Any State

that regulated in advance of the federal government would, as

a practical matter, be able to force manufacturers to comply

on a national basis with that State’s regulatory desires. Even

if such state regulations later were preempted by subsequent

federal regulations, the very harms Congress sought to pre-

vent would already have occurred. See S. Rep. No. 100-6, at

4 (1987), reprinted in 1987 U.S.C.C.A.N. at 54-55 (absent

federal preemption, “[rjegulations in a few populous States

could as a practical matter determine the product lines sold

nationwide, even in States where no regulations existed”). '°

'? CEC is well aware of this provision, having just employed it in an ef-

fort to force the Department of Energy to issue energy efficiency stan-

dards. See Complaint, State of New York v. Bodman, No. 05-CV-7807

(S.D.N.Y. filed Sept. 7, 2005).

'? The Ninth Circuit's interpretation finds no support in Puerto Rico

Department of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495

(1988); see Pet. App. 18a (relying on same). That case, unlike this one,

dealt with the decidedly “untypical claim” that preemption existed despite

This only confirms that the court below was mistaken in ap-

plying its “narrow interpretation” to the federal preemption

provisions.

7. ¢ ©

Whether and when to apply the presumption against pre-

emption is an important issue of federal law, as it implicates

important issues of federal power and of federalism. Were

the Fourth, Seventh and Ninth Circuits correct in their appli-

cation of the presumption, it would mean that other courts of

appeals are preempting state law too readily, and therefore

improperly trenching on state power. But the Ninth Circuit

and its colleagues are incorrect (as this Court and at least five

courts of appeals have held) and therefore the danger is quite

a different one—namely, that important federal interests, in-

cluding in uniformity of national policy, are being thwarted.

As the following section demonstrates, that is precisely what

has happened in the critical realm of national energy policy,

which reinforces the need for this Court's review.

Ill. THE DECISION BELOW, IN UNDERMINING

FEDERAL UNIFORMITY, IMPLICATES IM-

PORTANT FEDERAL INTERESTS AND IM-

POSES GREAT HARM ON NATIONAL MANU-

FACTURERS.,

In addition to the conflicts set forth above, this case further

merits review because it implicates important federal inter-

ests, and because it has practical consequences for manufac-

turers and for the system of uniformity that Congress sought

to impose.

1. Congress has made unmistakably clear that it views en-

ergy efficiency to be a matter of surpassing federal impor-

the fact that “Congress ha[d] withdrawn from all substantial involvemeni

in” the relevant field. 485 U.S. at 500, 504. There, the claim of preemp-

tion was based on “nothing more than excerpts from ... legislative his-

tory,” id. at 501; here, preemption is mandated by a broadly phrased ex-

press preemption provision.

tance. As set forth above, this is plain from Congress’s en-

actment of express preemption provisions in §§ 6297 and

6316; from the implementation of expansive statutory and

regulatory regimes by Congress, the Department of Energy

and the Federal Trade Commission; and from the safety valve

established by § 6297(d), which expressly favors national in-

terests over state ones. See 42 U.S.C. § 6297(d)(3) (providing

that the safety valve is unavailable if “State regulation will

significantly burden manufacturing, marketing, distribution,

sale, or servicing ... on a national basis” (emphasis added)).

The national importance of the issue is likewise clear from

Congress’s repeated statements on the subject. When Con-

gress enacted EPCA in 1975, it recognized that the “nation

has entered a new era” regarding energy supply, which “un-

derscored ... the need for policy decisions at the national

level.” H.R. Rep. No. 94-340, at 1 (1975), reprinted in 1975

U.S.C.C.A.N. 1762, 1763. In fact, Congress treated energy

policy as a matter of foreign policy and “national security,”

id. at 4, 1975 U.S.C.C.A.N. at 1766; S. Conf. Rep. No. 94-

516, at 117, 1975 U.S.C.C.A.N. at 1957, which are quintes-

sentially matters of national concern. With each new enact-

ment concerning energy efficiency, Congress has reiterated

the national importance of energy policy. See, e.g., H.R. Rep.

No. 94-340, at 2, 1975 U.S.C.C.A.N. at 1763 (section setting

forth “requirements for a national energy policy” (capitaliza-

tion omitted)); H.R. Rep. No. 100-11, at 26 (“Appliance effi-

ciency has been a subject of national interest since at least the

initial energy price jolts of the early 1970’s.”); S. Rep. No.

100-6, at 2, 1987 U.S.C.C.A.N. at 52 (one purpose of

NAECA is “to reduce the regulatory and economic burdens

on the appliance manufacturing industry through the estab-

lishment of national energy conservation standards” (empha-

sis added)). In short, this is a matter of national policy to

which Congress has crafted a national response, which is, af-

ter all, precisely the meaning and purpose of a preemption

provision.

2. What is more, it is plain from the record in this case that

the California regulations will cause the exact harms that

Congress sought to avoid when it enacted §§ 6297 and 6316.

In national energy statutes, Congress struck a balance be-

tween increased federal regulation and a “patchwork” of state

regulation that would impose massive regulatory burdens on

manufacturers. The California regulations at issue totally up-

set that balance by imposing the sort of burdens that Congress

meant to preempt.

First, the information-disclosure requirements will impose

significant costs because they require manufacturers to dis-

close—and therefore to collect—data that is not otherwise

generated by federally mandated testing procedures.'* The

record reflects, for instance, that certain manufacturers will

have to build expensive test models in order to perform the

tests and compile the data that the regulations require; others

will have to purchase new labeling equipment and software.

One company estimates its resulting compliance costs at over

$3 million; others have estimated their costs of building test

models in the hundreds of thousands of dollars. Even for

manufacturers that do not anticipate building new test models,

to perform the newly required testing will itself be extremely

costly—again, in the hundreds of thousands of dollars for cer-

tain manufacturers.'° The process will in any event be bur-

densome; manufacturers of air-conditioning units will, for

instance, be required to test for, gather and calculate numer-

ous additional types of data.’®

'* See, e.g., Decl. of Dr. Karim Amrane at 2-4; Decl. of James T. Ver-

Shaw at 5-6. Each of these declarations, as well as those in the footnotes

that follow, was filed in support of the Associations’ motion for a prelimi-

nary injunction.

'? See, e.g., Decl. of Frank Myers at 2-3; Decl. of Jim C. Smelcer at 2-3;

Decl. of Robert J. Rasp at 2; Decl. of William T. Harrigill at 3; Decl. of

Dr. Mark Hogan at 5; Decl. of Charles W. Adams at 3;

cf. also declarations cited supra note 14.

The labeling requirements of § 1607 are similarly burden-

some. The CEC regulations would require many manufactur-

ers to purchase new labeling equipment, or to retool or repro-

gram their existing equipment. Numerous manufacturers

would incur costs in the tens or hundreds of thousands of dol-

lars; some would incur costs in this range per year; and others

would incur ultimate costs in the millions of dollars.'’ And, it

must be noted, at least some of the California requirements

serve no obvious conservation purpose—they would require

substantial expense, for instance, to print the date of manufac-

ture (which already appears on product labels) in a new, Cali-

fornia-mandated format.

The impact of all of these requirements is exacerbated by

the § 1608 enforcement mechanism. Under that provision, no

product may be sold in California unless it meets the require-

ments of § 1606 and § 1607. Given the size of the California

economy, the § 1608 enforcement mechanism ensures that

every product produced for sale anywhere in the United

States must meet the CEC standards, because manufacturers

do not know whether a given product will eventually be dis-

tributed to California. Congress expressly recognized this

prospect when it enacted NAECA, and intended to prevent it.

** @ *

California’s agency sought to achieve the same result in

EMA—imposing requirements on an entire industry—that

CEC seeks to accomplish here, and this Court granted review

to protect national interests and those of the other 49 States.

It should do so here as well. If California wants to impose

requirements, the statute has a mechanism, 42 U.S.C.

§ 6297(d), but California has not used that safety valve. In-

stead, it seeks to impose its will unilaterally on all appliance

'’ See, e.g., Decl. of Howard Wolfman at 2; Decl. of Robert B. Boteler

at 2; Decl. of Joseph G. Howley, Jr. at 2; Decl. of Daniel J. Canclini at 2;

Decl. of Irvin L. Derks at 2; Decl. of James T. VerShaw at 4; Decl. of

Francis L. Franck at 3; Decl. of Robert J. Rasp at 3.

manufacturers. That is a situation that only this Court can

correct, and it should grant review to do so.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of Certio-

rari should be granted.

STEPHEN R. YUREK

GENERAL COUNSEL

VICE PRESIDENT, POLicy &

PUBLIC AFFAIRS

AIR-CONDITION.NG &

REFRIGERATION INSTITUTE

4100 North Fairfax Drive

Suite 200

Arlington, VA 22203

(703) 524-8800

JOSEPH M. MATTINGLY

VICE PRESIDENT,

SECRETARY AND GENERAL

COUNSEL

GAS APPLIANCE

MANUFACTURERS

ASSOCIATION, INC.

1207 Wilson Blvd

Suite 600

Arlington, VA 22201

(703) 525-7060

Respectfully submitted,

CARTER G. PHILLIPS*

JOSEPH R. GUERRA

Eric A. SHUMSKY

SIDLEY AUSTIN BROWN &

WOOD LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

CHARLES A. SAMUELS

GENERAL COUNSEL

ASSOCIATION OF HOME

APPLIANCE MANUFACTURERS

MINTZ LEVIN COHN FERRIS

GLOVSKY & PoPpeo PC

701 Pennsylvania Avenue,

N.W.

Washington, D.C. 20004

(202) 434-7300

CLARK REID SILCOX

COUNSEL

NATIONAL ELECTRICAL

MANUFACTURERS

ASSOCIATION

1300 North 17th Street

Suite 1847

Rosslyn, VA 22209

(703) 841-3200

JOHN A. HODGES

BRUCE L. MCDONALD

PETER J. RIEHM

WILEY REIN & FIELDING LLP

1776 K Street, N.W.

Washington, D.C. 20006

(202) 719-7000

Counsel for Petitioners

* Counsel of Record

September 12, 2005

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 03-1662!

AiR CONDITIONING AND REFRIGERATION INSTITUTE; GAS

APPLIANCE MANUFACTURERS ASSOCIATION; ASSOCIATION

OF HOME APPLIANCE MANUFACTURERS; NATIONAL ELEC-

TRICAL MANUFACTURERS ASSOCIATION,

Plaintiffs-Appellees,

Vv.

ENERGY RESOURCES CONSERVATION AND DEVELOPMENT

COMMISSION; WILLIAM J. KEeese, Chairman; ROBERT

PERNELL, Commissioner; AURTHUR H. ROSENFELD, Com-

missioner; JAMES D. BoyD, Commissioner; JOHN L.

GEESMAN, Commissioner,

Defendants-Appellants.

Argued and Submitted Nov. |, 2004

Opinion Filed Feb. 3, 2005

Amended June 3, 2005

Appeal from the United States District Court for the

Eastern District of California; William B. Shubb, Chief

Judge, Presiding. D.C. No. CV-02-02437-WBS/PAN.

Before: B. FLETCHER, NOONAN, and THOMAS, Cir-

cuit Judges.

AMENDED OPINION

THOMAS, Circuit Judge.

This case presents the question of whether federal law

preempts California's appliance regulations requiring appli-

ance manufacturers to submit data about their appliances to

California’s Energy Resources Conservation and Develop-

ment Commission (“Commission”), mark their appliances

with basic information such as brand name and energy per-

formance, and be subjected to related compliance and en-

forcement rules. We conclude that federal law does not pre-

empt California’s regulations. We therefore reverse the dis-

trict court’s decision finding the regulations preempted and

permanently enjoining the Commission from enforcing these

regulations, vacate the injunction, and remand.

California boasts an extensive and laudable appliance effi-

ciency program. As part of California’s program, the Com-

mission has, since 1977, required manufacturers to submit

data to it. The data coiiccted by the Commission pursuant to

section 1606 of Title 20 of the California Code of Regulations

is maintained in an electronic database, which contains in-

formation on over 135,000 appliance models. The Commis-

sion’s database provided the foundation of information for the

Environmental Protection Agency’s Energy Star program and

is used frequently by consumers, energy consultants, contrac-

tors, researchers, utility program managers, manufacturers,

and other governmental agencies. As part of California’s

appliance program, the Commission also requires manufac-

turers to put basic information—such as the manufacturer’s

brand name and the appliance’s size and energy perform-

ance—on their appliances. Cal.Code Regs. tit. 20, § 1607(b)-

(dX2). The Commission enforces the data submittal and

marking requirements it places on manufacturers under

section 1608. Cal.Code Regs. tit. 20, § 1608.

Plaintiffs-Appellees, four major trade organizations repre-

senting appliance manufacturers nationwide (“Trade Associa-

tions”), claim that these California regulations are preempted

by the Energy Policy and Conservation Act, Pub. Law No.

94-163, 89 Stat. 871 (1975) (“EPCA”), specifically by 42

U.S.C. §§ 6297(a) and 6316(a)-(b). After these regulations

were adopted but before they went into effect, Trade Associa-

tions filed suit for declaratory and injunctive relief in the

United States District Court for the Eastern District of Cali-

fornia. The district court held that the California regulations

are preempted. The court, first preliminarily and then perma-

nently, enjoined the Commission from enforcing the regula-

tions. The Commission timely appealed.

We review the district court's decision regarding preemp-

tion de novo, Chamber of Commerce v. Lockyer, 364 F.3d

1154, 1160 (9th Cir.2004), and the district court’s grant of

permanent injunction for abuse of discretion, Ting v. AT & T,

319 F.3d 1126, 1134-35 (9th Cir.2003).

Preemption can occur in one of three ways: express pre-

emption by statute, occupation of the field, or conflict be-

tween state and federal regulation. English v. General Elec.

Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65

(1990). All parties agree that this case presents a question of

express preemption. Thus, this case boils down to the inter-

pretation of the statutory provision that allegedly preempts

state law. Medtronic, Inc. v. Lohr, 518 U.S. 470, 484, 116

S.Ct. 2240, 135 L.Ed.2d 700 (1996); Cipollone v. Liggett

Group, Inc. , 505 U.S. 504, 517, 112 S.Ct. 2608, 120 L.Ed.2d

407 (1992).

To determine whether California’s regulations are pre-

empted by EPCA, we are instructed to first “‘identify the

domain expressly pre-empted’ by that language.” Medtronic,

518 U.S. at 484, 116 S.Ct. 2240 (quoting Cipollone, 505 U.S.

at 517, 112 S.Ct. 2608). “Since pre-emption claims turn on

Congress's intent, we begin as we do in any exercise of

statutory construction with the text of the provision in

question, and move on, as need be, to the structure and

purpose of the Act in which it occurs.” New York State

Conference of Blue Cross & Blue Shield Plans v. Travelers

Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695

(1995) (internal citations omitted).

Our interpretation of the federal statute is informed by two

presumptions about the nature of preemption. Medtronic, 518

U.S. at 485, 116 S.Ct. 2240. First, we address claims of

preemption with the starting presumption that Congress did

not intend to supplant state law. /d. Where, as is the case

here, the State regulates in an area where there is no history

of significant federal presence, United States v. Locke, 529

U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000),' we

assume that the “historic police powers of the States were not

to be superseded by the Federal Act unless that was the clear

and manifest purpose of Congress.” /d. (quoting Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146,

91 L.Ed. 1447 (1947)). This presumption against preemption

leads us to the principle that express preemption statutory

provisions should be given a narrow interpretation. /d.;

Cipollone, 505 U.S. at 518, 112 S.Ct. 2608.

Second, our analysis of the scope of the statute’s pre-

emption is guided by the Supreme Court’s oft-stated com-

' Compare infra Part I1.A (discussing legislative history of EPCA),

with Locke, 529 U.S. at 108, 120 S.Ct. 1135 (finding the presumption

against preemption does not apply where the federal interest in the area

the State enacted Icgislation in, interstate navigation, “has been manifest

since the beginning of our Republic”), and Ting; 319 F.3d at 1136

(finding that the presumption against preemption does not apply “because

of the long history of federal presence in regulating long-distance

telecommunications”), and Bank of Am. v. City & County of San Fran-

cisco, 309 F.3d S51, 559 (9th Cir.2002) (finding that the presumption

against preemption does not apply because of the history of significant

federal presence in national banking), and Skysign Int'l, Inc. v. City &

County of Honolulu, 276 F.3d 1109, (9th Cir.2002) (finding that pre-

sumption against preemption docs not apply where aerial signage ordi-

nance specifically targeted navigable airspace, an area where there is a

history of significam federal presence).

ment that “the purpose of Congress is the ultimate touchstone

in every pre-emption case.” Medtronic, 518 U.S. at 485, 116

S.Ct. 2240 (internal quotations marks omitted). “As a result,

any understanding of the scope of a pre-emption statute must

rest primarily on ‘a fair understanding of congressional

purpose."” /d. at 485-86, 116 S.Ct. 2240 (quoting Cipollone,

505 U.S. at $30, n. 27, 112 S.Ct. 2608) (emphasis omitted).

Also relevant to our interpretation of the scope of the

statute's preemption are the “structure and purpose of the

statute as a whole, as revealed not only in the text, but

through [our] reasoned understanding of the way in which

Congress intended the statute and its surrounding regulatory

scheme to affect business, consumers, and the law.” /d. at

486, 116 S.Ct. 2240 (internal citation and quotation marks

omitted).

itl

Thus, we turn to the language of the express preemption

provision at issue. 42 U.S.C. § 6297° provides, in relevant

part:

(a) Preemption of testing and labeling requirements

(1) Effective on March 17, 1987, this part supersedes

any State regulation insofar as such State regulation

provides at any time for the disclosure of information

with respect to any measure of energy consumption or

water use of any covered product if—

(A) such State regulation requires testing or the use of

any measure of energy consumption, water use, or

* 42 U.S.C. § A316(a}b), the other preemption provision at issue in

thes case. incorporat.s § 6297(a) with a few subtle distinctions that are not

relevant to this case. 42 U.S.C. § 6316(a}b) relates to commercial and

industrial appliances whereas § 6297(a) relates to residential appliances

Heremafter, when we refer to 42 U.S.C. § 6297(a), in doing so, we also

refer to § 631&(a)4b)

energy descriptor in any manner other than that provided

under section 6293? of this title; or

(B) such State regulation requires disclosure of in-

formation with respect to the energy use, energy effi-

ciency, or water use of any covered product other than

information required under section 6294* of this title.

42 U.S.C. § 6297.

A. Data Submittal Regulatic

The first California regulation that 42 U.S.C. § 6297(a)

arguably preempts is Cal.Code Regs. tit. 20, § 1606, which

requires appliance manufacturers to submit specified infor-

mation to the Commission for each appliance for sale or sold

in California. Such information includes the name of the

manufacturer, the brand name, the model number, and data

produced during tests the manufacturer is required to perform

under Cal.Code Regs. tit. 20, § 1604. See Cal.Code Regs. tit.

20, §§ 1606(a), Table U.

To determine whether 42 U.S.C. § 6297(a) preempts the

data submittal requirements of Cal.Code Regs. tit. 20, § 1606,

we look to the text of § 6297(a). Section 6297(a) preempts

any state regulation that provides “at any time for the dis-

closure of information with respect to any measure of energy

consumption or water use of any covered product if... such

State regulation requires disclosure of information with

respect to the energy use, energy efficiency, or water use of

any covered product other than information required under

section 6294.” The district court found the text of § 6297(a),

in particular the meaning of the phrase “disclosure of

information,” ambiguous, and so do we.

42 USC § 6293 establishes federal appliance testing requirements.

* 42 USC. § 6294 establishes federal appliance labeling requirements.

Beginning with the presumption that Congress did not

intend to supplant state law, we must narrowly interpret

§ 6297(a) in general, and the phrase “disclosure of infor-

mation” in particular. See Medtronic, 518 U.S. at 485, 116

S.Ct. 2240. A narrow interpretation is consistent with our

direction to find preemption when preemption is the “clear

and manifest purpose of Congress.” /d. The narrow inter-

pretation the Commission advances is supported by the

statutory text and is consistent with Congress’s purpose.

Applying a narrow interpretation of § 6297(a), we hold that it

does not preempt the data submittal requirements contained in

Cal.Code Regs. tit. 20, § 1606.

The rules of statutory construction support the narrow

interpretation of “disclosure of information.” One rule of

statutory construction is that “identical words used in differ-

ent parts of the same act are intended to have the same

meaning.” Commissioner of Internal Revenue v. Lundy, 516

U.S. 235, 250, 116 S.Ct. 647, 133 L.Ed.2d 611 (internal

citations and quotation marks omitted). The phrase “dis-

closure of information” is used twice in § 6297(a)(1) and

should be given the same meaning in both instances. In

§ 6297(aX1), “disclosure of information” concerns infor-

mation with respect to any measure of energy consumption or

water use. In § 6297(a)(1)(B), “disclosure of information”

requires manufacturers to place certain information on

consumer-directed product labels, as required by 42 U.S.C.

§ 6294. See 42 U.S.C. § 6294. In both instances, “disclosure

of information” may be interpreted to generally refer to the

disclosure of information on labels directed to consumers at

point of sale or use. Thus, a narrow interpretac.on of § 6297

(a}(1) is supported by the statutory text, and this interpretation

should be applied.

Furthermore, the statute as a whole compels a narrow

interpretation of “disclosure of information.” Congress did

not use the phrase “disclosure of information” in EPCA when

it referenced manufacturers providing data to the Department

of Energy (“DOE”); instead, Congress used the phrase

“submit information or reports.” 42 U.S.C. § 6296(d). 42

U.S.C. § 6296(d) allows the DOE to require appliance

manufacturers to provide the DOE with information about

energy efficiency.

42 U.S.C. § 6296(d) provides, in relevant part, “the Secre-

tary may require .. . each manufacturer of a covered product

to submit information or reports to the Secretary.” /d.

§ 6296(d)(1) (emphasis added). When Congress referred to

the submittal of data to a government entity in EPCA, it used

the phrase “submit information or reports,” not “disclosure of

information.” The statute as a whole does not support a broad

interpretation of “disclosure of information.” On the con-

trary, it suggests that “disclosure of information” only per-

tains to labeling directed to consumers at point of sale or use.’

In addition, the narrow interpretation of “disclosure of

information” rests on “a fair understanding of congressional

purpose” as evidenced by the relevant legislative history.

* The narrow interpretation of the phrase “disclosure of information” is

also supported by the relevant FTC regulations. 16 C.F.R. Part 305

establishes regulations regarding the consumer-directed labeling of

appliances and the testing required to accurately label appliances. 16

C.F.R. pt. 305. Part 305 also includes regulations pertaining to the form

and content of the labels, §§ 305.11-.14, and the testing manufacturers

must perform in order to label with information regarding their

appliances’ energy efficiency or use, §§ 305.5-.10. The sections pertaining

to the form and contents of the labels are clustered under the heading of

“Required Disclosures.” Section 35.8, which requires manufacturers to

submit annually to the FTC a report listing the annual energy consumption

or energy efficiency rating for each basic mode! in current production, is

titled “Submission of data.” The FTC regulations use “disclosure” to

refer to consumer-directed labeling and “submission” to refer to data-

submittal to a government entity. Therefore. the FTC regulations, like

EPCA, use “disclosure” to refer to consumer-directed labeling and “sub-

mission” or “submit” to refer to data-submuttal to the government

Medtronic, 518 U.S. at 485-86, 116 S.Ct. 2240 (quoting

Cipollone, 505 U.S. at 530, n. 27, 112 S.Ct. 2608) (internal

quotation marks and emphasis omitted). The original version

of the current labeling and testing pre-emption provision was

first enacted in the EPCA, Pub. Law No. 94-163, 89 Stat. 871

(1975). Its purpose appears to be unchanged since then.

Congress enacted EPCA in 1975, in the aftermath of the oil

embargo imposed against the United States by certain

countries in the years prior. Natural Res. Def. Council v.

Herrington, 768 F.2d 1355, 1364 (D.C.Cir.1985). The oil

embargo called attention to the serious economic and national

security problems associated with our nation’s continued

reliance on foreign energy resources. /d. In response, Presi-

dent Ford called for “the strongest and most far-reaching

energy conservation program we have ever had.” /d. (quoting

11 Weekly Comp. Pres. Doc. 40, 41 (Jan. 20, 1975)) (internal

quotation marks omitted). Subsequently, Congress enacted

EPCA, and in doing so, established a comprehensive energy

policy. /d.

EPCA was designed, in part, to reduce the United States’

“domestic energy consumption through the operation of spe-

cific voluntary and mandatory energy conservation pro-

grams.” S.Rep. No. 94-516, at 117 (1975), reprinted in 1975

U.S.C.C.A.N. 1956, 1957. Part of EPCA'’s energy con-

servation program was to “[rjequire energy labeling of major

home appliances and certain other consumer products, and

authorize energy efficiency standards for major appliances.”

Id. at 118. Congress believed that better informed consumers

and voluntary efforts by manufacturers would make energy

efficiency standards unnecessary. H. Rep. No. 94-340, at 95

(1975), reprinted in 1975 U.S.C.C.A.N. 1762, 1857. There-

fore, Congress required manufacturers to label their ap-

pliances and provided that the Secretary of the Federal

Energy Administration should utilize energy efficiency

standards if the labeling program proved ineffective. /d. at

10a

99. Asa result, EPCA’s express preemption provisions dealt

primarily with the possibility that states would adopt different

test procedures or consumer labeling requirements. See Pub.

Law No. 94-163, § 327, 89 Stat. 871, 926-27. EPCA

preempted state regulations insofar as they were “other than”

the applicable federal rules for testing and labeling. /d.

§ 327(a\(1), 89 Stat. at 927. EPCA, however, allowed state

regulations that differed from the federal regulations if the

State regulations were justified by a substantial state or local

need, did not interfere with interstate commerce, and were

more stringent than the federal standard. /d. § 327(b)(2), 89

Stat. at 927.

The National Energy Conservation and Policy Act, Pub.L.

No. 95-619, 92 Stat. 3206 (1978) (“NECPA”), amended

portions of EPCA’s preemption provisions, States were still

allowed to adopt regulations identical to federal regulations.

See EPCA § 327(a)(2), 89 Stat. at 927. States were allowed

to prescribe regulations more stringent than federal regula-

tions—or, if there was no federal regulation, a state could

implement its own standard—only if the Secretary found

there was a significant state or local interest to iustify the

state’s regulation and the regulation would not unduly burden

iMterstate commerce. NECPA § 424(a), 92 Stat. at 3264.

NECPA did not amend EPCA’s preemption provisions re-

garding testing or labeling. /d.

On a larger scale, NECPA created a nationwide con-

servation program for appliances and required the DOE to

prescribe minimum energy efficiency standards for thirteen

covered products. Herrington, 768 F.2d at 1367; see

H.R.Rep. No. 95-1751, at 114 15 (1978). However, instead

of adopting energy efficiency standards, the DOE concluded

in 1982 that establishing minimum energy efficiency stan-

dards for the relevant appliances would not result in signifi-

cant energy conservation and would not be economically

justified. H.R.Rep. No. 100-11, at 27. Thus, the DOE

lla

determined no efficiency standards were required under

NECPA. /d. “While DOE adopted its policy of the ‘no-

standard’ standards, it also initiated a general policy of

granting petitions from States requesting waivers from

preemption. As a result, a system of separate State appliance

standards ha[{d] begun to emerge and the trend [was]

growing.” S.Rep. No. 100-6, at 4. The D.C. Circuit held that

the DOE erroneously concluded that “nostandard” standards

was appropriate and instructed the DOE to adopt federal

efficiency standards. Herrington, 768 F.2d at 1433.

Because the DOE could not establish federal appliance

efficiency standards immediately, major manufacturer trade

associations and the Natural Resources Defense Council

negotiated a compromise solution, which Congress enacted as

the National Appliance Energy Conservation Act of 1987,

Pub.L. No. 100-12, 101 Stat. 103 (1987) (“NAECA”), codi-

fied at 42 U.S.C. §§ 6291-6309. H.R.Rep. No. 100-11, at 27-

28; S.Rep. No. 100-6, at 4-5, reprinted in 1987 U.S.C.C.A.N.

52, 54-55. NAECA established federal energy efficiency

standards for residential appliances; DOE action was not

required to set these standards. NAECA § 5, 101 Stat. at

107-17.

NAECA also amended NECPA’s preemption provisions.

NAECA provided that states could no longer adopt energy

efficiency standards that were identical to the federal

standards. 42 U.S.C. § 6297(c). NAECA also made it more

difficult for states to obtain waivers of preemption for more

Stringent state efficiency standards; in order to obtain a

waiver, NAECA required states to establish by a pre-

ponderance of the evidence that state regulation was justified

by unusual and compelling state or local interests. 42 U.S.C.

§ 6297(d)(1)(B)-(C); see S.Rep. No. 100-6, at 9. The reason

for the broader preemption standards was to counteract the

systems of separate state appliance standards that had

emerged as a result of the DOE’s “general policy of granting

i2a

petitions from States requesting waivers from preemption,”

which caused appliance manufacturers to be confronted with

“a growing patchwork of differing State regulations which

would increasingly complicate their design, production and

marketing plans.” S.Rep. No. 100-6, at 4. As for the pre-

emption provisions regarding testing and labeling, NAECA,

“essentially restate[d] existing law, and provide[{d] that the

Act supersedes State and local regulations regarding testing

and labeling in certain cases.” /d. at 9.

The latest legislation amending EPCA is the Energy Policy

Act of 1992, Pub.L. No. 102-486, 106 Stat. 2776 (1992)

(“EPAct”), codified at 42 U.S.C. §§ 6311-17, which ex-

panded the federal appliance program to include energy

efficiency standards for commercial and industrial appliances.

42 U.S.C. §§ 6295(j)-(k), 6313. EPAct incorporated the

preemption provisions of 42 U.S.C. § 6297, with a few subtle

distinctions, which are not relevant to this case. 42 U.S.C.

§ 6316(a)-(b). EPAct’s legislative history is silent on pre-

emption.

In sum, the legislative history of the relevant Acts supports

a narrow interpretation of the preemption provision. There is

no indication that Congress, in the preemption provision of

EPCA as amended by subsequent Acts, intended to preempt

state regulations requiring the submission of data to state

government agencies. The legislative history instead demon-

strates that Congress intended to preempt state energy effi-

ciency standards, testing procedures, and consumer labeling

requirements. We therefore conclude that because “dis-

closure of information” only refers to consumer-directed

labeling at point of sale or use, Cal.Code Regs. tit. 20, § 1606

is not preempted by 42 U.S.C. § 6297(a\(1).°

* We also hold that Cal.Code Regs. tit. 20, § 1606 is not preempted by

42 U.S.C. § 6316(a)4b), which is substantively the same as § 6297(a\ 1).

13a

B. Marking Regulations

The second set of California’s regulations the Trade Asso-

ciations argue is preempted by federal law are the ap-

pliance-marking requirements of sections 1607(b), (c), (d)(1),

and (d)(2) of Title 20 of the California Code of Regulations.

Section 1607(b)’ and (c)* of Title 20 of the California Code

of Regulations—which require appliances to be labeled with

the manufacturer's name, brand name, or trademark; the

appliance’s mode! number; and date of manufacture—are not

preempted by federal law because the subsections do not

“provide[ | at any time for the disclosure of information with

respect to any measure of energy consumption or water use of

” Cal.Code Regs. tit. 20, § 1607(b) provides:

Except as provided in subsection (c), the following information

shall be permanently, legibly. and conspicuously displayed on an

accessible place on cach unit;

(1) manufacturer's name or brand name or trademark:

(2) model number, and

(3) date of manufacture, indicating (i) year and (ii) month or smaller

(e.g. week) increment. If the date is in a code that is not readily un-

derstandable to the layperson, the manufacturer shall immediately,

on request, provide the code to the Energy Commission

id. § 1607(b).

* Cal.Code Regs. tit. 20, § 1607(c), titled “Exceptions to Subsection

(b),” provides, in relevant part

(1) For plumbing fixtures and plumbing fittings, the information

required by subsection (b) shall be permanently, legibly. and

conspicuously displayed on an accessible place on cach unit or on

the unit's packaging

(2) For lamps, the information required by subsection (b) shall be

permanently, legibly, and conspicuously displayed on an accessible

place on cach unit, on the unit's packaging, or, where the unit is

contained in a group of several units in a single package, on the

packaging of the group

ld. § 1GO7(c)

l4a

any covered product.” 42 U.S.C. § 6297(a)(1).’ The in-

formation required to be placed on appliances under section

1607(b) and (c) is not “information with respect to any mea-

sure of energy consumption or water use” unless one expan-

sively interprets “with respect to” and “measure of energy

consumption,” 42 U.S.C. § 6297(a\(1). In accordance with

the presumptions informing our interpretation of express

preemption provisions, we interpret these terms narrowly as

such an interpretation is consistent with the statutory text.

“Measure of energy consumption” is defined as “energy

use, energy efficiency, estimated annual operating cost, or

other measure of energy consumption.” 42 U.S.C. § 6291(8)

(emphasis added). We decline to interpret “other measure of

energy consumption,” the only relevant term left undefined in

the statute, so broadly that it encompasses the information

required to be placed on appliances under California’s

sections 1607(b) and (c) Under the maxim of statutory inter-

pretation known as ejusdem generis, “or other measure of

energy consumption” embraces only objects similar in nature

to those enumerated by the preceding specific words. Circuit

City Stores, Inc. v. Adams, 532 U.S. 105, 114-15, 121 S.Ct.

1302, 149 L.Ed.2d 234 (2001). “Or other measure of energy

* “Measure of energy consumption” is defined as “energy use, energy

efficiency, estimated annual operating cost, or other measure of energy

consumption.” 42 U.S.C. § 6291(8). “Energy use” is defined as “the

quantity of energy directly consumed by a consumer product at point of

use... .” Ad. § 6291(4). “Energy efficiency” is defined as “the ratio of the

useful output of services from a consumer product to the energy use of

such product... .” /d. § 6291(5). “Estimated annual operating cost” is

defined as “the aggregate retail cost of the energy which 1s likely to be

consumed annually, and in the case of showerheads, faucets, water

closets, and urinals, the aggregate retail cost of water and wastewater

treatment services likely to be incurred annually, in representative use of a

consumer product... .” /d. § 6291(7). “Water use” is defined as “the

quantity of water flowing through a showerhead, faucet, water closet, or

urinal at point of use... .” /d.§ 6291(31 A).

15a

consumption” must be construed to give effect to the terms

preceding the phrase and must be defined by reference to the

terms preceding it. /d. at 115, 121 S.Ct. 1302. Therefore, “or

other measure of energy consumption” does not broaden the

meaning of “measure of energy consumption,” which is

defined, in part, as: “the quantity of energy directly con-

sumed by a consumer product at point of use,” 42 U.S.C.

§ 6291(4); “the ratio of the useful output of services from a

consumer product to the energy use of such product,” id.

§ 6291(5); and “the aggregate retail cost of the energy which

is likely to be consumed annually,” id. § 6291(7). As such,

“measure of energy consumption” does not encompass the

information California requires manufacturers to place on

their appliances, such as the manufacturer's name and the

appliance’s model number and date of manufacture.

The issue then becomes how to interpret “with respect to.”

The interpretation of the phrase “relates to” instructs us on how

to interpret the phrase “with respect to,” as both phrases are

similar in scope and meaning. The Supreme Court has stated

that “the term ‘relate to’ cannot be taken ‘to extend to the

furthest stretch of its indeterminancy,’ or else ‘for all practical

purposes pre-emption would never run its course.””” Egelhof] v

Egelhoff, 532 U.S. 141, 146, 121 S.Ct. 1322, 149 L.Ed.2d 264

(2001) (quoting Travelers, 514 U.S. at 655, 115 S.Ct. 1671).

The Court has also “cautioned against an ‘uncritical literalism’

that would make pre-emption turn on ‘infinite connections.”” /d.

at 147, 121 S.Ct. 1322 (quoting 7» »welers, 514 U.S. at 656, 115

S.Ct. 1671). As Justice Scalia observed, “[e]verything is related

to everything else.” Cal. Div. of Labor Standards Enforcement

v. Dillingham Constr., N.A., Inc., 519 U.S. 346, 335, 117 S.Ct.

832, 136 L.Ed.2d 791 (1997) (Scalia, J., concurring). The issue

is whether the relation is “indirect, remote, and tenuous” or not.

Californians For Safe & Competitive Dump Truck Transp. v

Mendonca, 152 F.3d 1184, 1189 (9th Cir.1998). The relation

between placing a manufacturer's name, the model name,

and the date of manufacture on an appliance and measures of

16a

energy consumption, as defined in EPCA, is indirect, remote,

and tenuous.

Therefore, we conclude that the marking requirements con-

tained in sections 1607(b) and (c) of Title 20 of the California

Code of Regulations are not preempted by EPCA.

We also hold that section 1607(d\(1)'° of the California

regulations is not preempted by EPCA, as the section only

requires compliance with federal marking requirements and,

therefore, does not require the disclosure of information that

is “other than information required” under federal law. 42

U.S.C. § 6297(aX1). As the Fourth Circuit has stated, “if

state law adopts or imposes a labeling requirement that is the

same as the federal standard, even if the state law provides

compensation or other remedies for a violation, so long as

Congress chooses not to explicitly preempt the consistent

law, it will not be said to be in conflict with federal law.”

Worm v. American Cyanamid Co., 970 F.2d 1301, 1307 (4th

Cir.1992). This reasoning is supported by Medironic, in

which the Supreme Court stated that “[t}he presence of a

[state] damages remedy does not amount to the additional or

Cal.Code Regs. tit. 20, § 1607(d\(1) provides:

(d) Energy Performance Information.

(1) Federally- Regulated Consumer Products.

The marking required by 16 C.F.R. Part 305 (2001) shall be dis-

played on all units of all federally-regulated consumer products of

the following classes:

Refrigerators Refrigerator-freezers Freezers Central air conditioners

Heat pumps Dishwashers Water heaters Room air conditioners

Warm aw furnaces Pool heaters Clothes washers Clothes dryers

Fluorescent lamp ballasts Showerheads Faucets Water closets

Urinals General service fluorescent lamps Incandescent reflector

lamps Direct heating equipment Medium -base compact fluorescent

lamps Cooking equipment (kitchen ranges and ovens).

Cal Code Regs. tit. 20, § 1607(d)(1).

17a

different ‘requirement’ that is necessary under the [federal]

Statute; rather, it merely provides another reason for manu-

facturers to comply with identical existing ‘requirements’

under federal law.” 518 U.S. at 495, 116 S.Ct. 2240. Be

cause Cal.Code Regs. tit. 20, § 1607(d\(1) merely provides

appliance manufacturers another reason to comply with

existing requirements under federal law, the California regu-

lation is not preempted.

The final marking regulation Trade Associations argues

is preempted by federal law, Cal.Code Regs. tit. 20,

§ 1607(d)(2),'' also does not require the disclosure of in-

formation “other than information required” under federal

law, and is thus not preempted. Section 1607(d)(2) requires

federally-regulated commercial and industrial equipment to

be marked with information. The relevant preemption pro-

vision is located at 42 U.S.C. § 6316(a)-(b), which was

enacted as part of EPAct.

California regulation section 1607(d)(2) is not pre-empted

because there are no federal labeling rules for the EPAct-

covered equipment that are subject to California's marking

requirements.’ Where EPAct authorizes the DOE to take

'' Cal.Code Regs. tit. 20, § 1607(d)\(2) provides:

(d) Energy Performance Information

(2) Federally-Regulated Commercial and Industrial Equipment:

Each unit of an appliance listed in Table V that is federally-

regulated commercial and industrial equipment shall be marked,

permanently and legibly on an accessible and conspicuous place on

the unit, with the applicable cnergy performance information shown

m Table V, and such information shall also be included on all

printed material that 1s displayed or distributed at the pornt of sale.

Cal.Code Regs. tit. 20, § 1607(d,(2)

'? The DOE has adopted labeling rules for electric motors. 10 C.F.R

§ 431.83. However, the California regulations on EPAct-covered equip-

ment do not include clectric motors, they cover only space heating, air-

conditioning, and water heating equipment. See Cal.Code Regs. tit. 20,

§ 1607(d)(2), Table V

action that would preempt inconsistent state regulations, the

DOE’s inaction, without more, fails to preempt relevant state

regulations.

Sections 6316(a) and (b) preempt “any State regulation

insofar as such State regulation provides at any time for the

disclosure of information with respect to any measure of energy

consumption or water use... if. . . such State regulation

requires disclosure of information . . . of any covered product

other than information required” under federal law. 42 U.S.C.

§ 6297(a1) (emphasis added). Thus, state regulations are

preempted at any time if they require the disclosure of

information other than what is required under federal law.

The DOE’s inaction alone cannot preempt state regu-

lations. See Puerto Rico Dep't of Consumer Affairs v. Isla

Petroleum Corp., 485 U.S. 495, 503, 108 S.Ct. 1350, 99

L.Ed.2d 582 (1988). “When a comprehensive federal scheme

intentionally leaves a portion of the regulated field without

controls, then the pre-emptive inference can be drawn—not

from federal inaction alone, but from inaction joined with

action.” /d. Under EPAct, the DOE must prescribe labeling

rules for classes of covered equipment for which the DOE has

exercised its discretion to prescribe test procedures. 42

U.S.C. § 6315(a). The DOE has not prescribed test pro-

cedures for most classes of covered equipment, and therefore

has not reached the decision of whether to prescribe label-

ing rules. There is no indication that the DOE’s inaction

was a conscious and express decision under 42 U.S.C.

§ 6315(h)'* to not promulgate labeling rules for EP Act-

'' 42 U.S.C. § 6315 provides:

The Secretary [of DOE] shall not promulgate labeling rules for any

class of industrial equipment unless he has determined that—

(1) labeling in accordance with this section is technologically and

economically feasible with respect to such class;

(2) significant energy savings will likely result from such labeling,

and

19a

covered equipment. “{I]t is essential that an agency declare,

at a high degree of specificity, its intention that its in action

preempt state law before we may assume such a desire and

give it legal effect.” Baltimore & Ohio R.R. Co. v. Oberlv,

837 F.2d 108, 115 (3d Cir.1988). As the DOE has not done

so, we cannot hold that Cal.Code Regs. tit. 20, § 1607(d)(2) is

preempted because it requires something “other than” what

federal law does.

C. Compliance and Enforcement Regulations

Lastly, Trade Associations argue that California's pro

cedural regulations, found at Cal.Code Regs. tit. 20,

§ 1608, “* that enforce the previously discussed substantive

(3) labeling in accordance with this section is likely to assist

consumers in making purchasing decisions.

42 U.S.C. § 631 S(h).

* Cal.Code Regs. tit. 20, § 1608, provides in relevant part:

(a) General Requirements for the Sale or !nstallation of All

Apphances. Any unit of any appliance within the scope of Section

1601 may be sold or offered for sale in Califorma only if

(1) the apphance appears in the most recent database established

pursuant to Section 1606(c), unless the only reason for the appli-

ance's absence from the database is its failure to comply with an

applicable standard im Section 1605.1[the applicable federal

efficiency standard),

(2) the manufacturer has.

(A) tested the appliance as required by Sections 1603 and 1604;

(B) marked the unit as required by Section 1607,

(b) Appliances Not in Database.

if the Executive Director determmes that an appliance that is not in

the database 1s being sold or offered for sale in California, he or she

shall take appropnate legal action to restrain and discourage such

sale or offering, including, but not limited to testing units of the

appliance at the manufacturer's cost and secking appropriate

judicial action.

Cal Code Regs. tit. 20, § 1608.

20a

regulations are preempted because they impermissibly en-

force federal requirements. If the Commission's substantive

regulations, as we have found, are not preempted by federal

law, then the Commission’s relevant compliance and en-

forcement provisions are also not preempted. The power to

regulate must include the complementary power to enforce

those regulations. California’s compliance and enforcement

provisions are not preempted by federal law.

For these reasons, we agree with the Commission that the

relevant California regulations which require manufacturers

to submit data about their appliances, mark their appliances,

and be subjected to related compliance and enforcement rules

are not preempted by federal law. We therefore reverse the

district court’s decision finding these regulations preempted,

vacate the injunction preventing the Commission from apply-

ing these regulations, and remand for further proceedings

consistent with this opinion.

REVERSED, VACATED, AND REMANDED.

Furthermore, section 1608(c)4g) requires the Executive Director of

the Commission to periodically inspect appliances sold or offered for sale

in Califorma to determine whether they conform with the relevant energy

efficiency and consumption standards. Cal.Code Regs. tit. 20,

§ 1608(cy 1). The Commission pays the costs of the initial testing.

Cal. Code Regs. tit. 20, § 1608(f). If a tested, federally-regulated ap-

pliance performs worse than what is required under the applicable federal

standard, the manufacturer must pay the cost for additional testing.

Cal.Code Regs. tit. 20, §§ 1608(¢2), (g), (ff). The Executive Director

informs the appropriate federal agency if the appliance’s performance

cither is at variance with the results the manufacturer reported to the

applicable federal agency or is not in compliance with the fedcral

standard. Cal.Code Regs. tit. 20, § 1608(g). A federally-regulated

appliance will be removed from the Commission's database due to its

failure to comply with the applicable federal standard. Cal.Code Regs. tit.

20, §$§ 160S(ay 1), 1608(¢ 44), (42K B), (eM 2KC).

2la

NOONAN, Circuit Judge, dissenting:

The statutes at issue, inferentially the result of negotiation

and compromise, deliberately spell out what is preempted by

federal law. State regulations preempted are those that

require “disclosure of information with respect to the energy

use, energy efficiency or water use . . . other than the

information required under section 6294 of this title.” 42

U.S.C. § 6297(aX1)(B). Where federal regulations do not

require disclosure of such information to the federal

government, a state is expressly prohibited from requiring

such disclosure to consumers or to a state authority.

The majority opinion holds that the prohibition applies

only to disclosure to consumers. The holding is a radical

reduction of the key statutory term. “Disclosure,” Webster's

Third New International Dictionary (3d ed.1993) informs us,

is “the act or an instance of opening up to view, knowledge or

comprehension.” Disclosure to a state agency is as much an

opening up to view of the data as disclosure to consumers

would be. Congress has chosen a broad term to prevent the

imposition by a state of the burden of disclosure. Just as the

meaning of “disclose” is “to expose to view” or “to make

known,” so the substantive noun referencing such an act is so

extensive that it encompasses every compulsory revelation of

the relevant information. Palpably the statute is meant to

preempt the state from entering the federal domain.

1 do not ask for “a broad reading” of “disclosure,” but for

an exact reading of a broad term. Obviously where the

information is going to consumers as required by 42 U.S.C.

§ 6294, the meaning of disclosure is narrowed by the

audience referenced. But narrowing in such a context does

not limit the generality of the statutory term when no special

context restricts it. That Congress did not use the term

“disclosure” when describing reports to DOE does not have

bearing on Congress’s intent when it found a single com-

22a

pendious way to say that manufacturers need not inform

either the government or consumers.

Impatience with the restraints imposed by the precise pre-

emptive words of the statute is also manifest when the

majority deals with the phrase “other than” as the phrase

refers to regulations other than federal regulations. 42 U.S.C.

§ 6316(a), (a)(4). Where there are no federal regulations on

the subject because the DOE has not promulgated any

regulations, then any state regulations are “other than” those

federally required. The court indulges idiosyncratic imagi-

nation in supposing that there must be federal regulations in

existence for “other than” to apply. Au contraire, if nothing

exists, any state regulations are other than what exists as

federal regulation. The fundamental tenet of express pre-

emption is that Congress may preclude state involvement,

even where it chooses not to regulate. Through its mis-

reading of “other than” the court has imposed a heightened

burden on the manufacturers to show implied preemption,

despite Congress’ express statement of preemption.

The court employs a presumption against preemption—a

presumption only triggered by a showing the field to be one

traditionally occupied by the states. United States v. Locke,

529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2001).

California alone regulates the uses at issue. California is avi

big enough single-handedly to generate the presumption. The

fate of California’s “Fleet Rules” may be augury of what is to

come. See Engine Manufacturers Ass'n v. South Coast Air

Quality Management District, 541 U.S. 246, 124 S.Ct. 1756,

158 L.Ed.2d 529 (2004).

| would affirm the judgment of the district court.

23a

APPENDIX B'

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

[Filed June 11, 2003)

No. CIV. S-02-2437 WBS PAN

AIR-CONDITIONING AND REFRIGERATION INSTITUTE; GAS

APPLIANCE MANUFACTURERS ASSOCIATION; ASSOCIATION

OF HOME APPLIANCE MANUFACTURERS; and NATIONAL

ELECTRICAL MANUFACTURERS ASSOCIATION,

Plaintiffs,

Vv.

ENERGY RESOURCES CONSERVATION AND DEVELOPMENT

COMMISSION; WILLIAM J. KEese, Chairman; and ROBERT

PERNELL, ARTHUR H. ROSENFELD, JAMES D. BoyD, and

Joun L. GEESMAN, Commissioners, in their official

capacities,

Defendants.

MEMORANDUM AND ORDER

In this action for declaratory and injunctive relief, plain-

tiffs, four nationwide trade organizations representing manu-

facturers of residential and commercial appliances and equip-

ment, allege that defendants have adopted appliance effi-

ciency regulations that are preempted by federal legislation.

On December 13, 2002, the court granted plaintiffs’ motion

for a preliminary injunction regarding certain of the chal-

lenged regulations. Plaintiffs now move for judgment on the

' This appendix comprises the district court's Memorandum and order

issuing a2 permanent injunction, as well as a brief Erata that the court filed

on June 23, 2003

24a

pleadings pursuant to Federal Rule of Civil Procedure 12(c)

and for final declaratory and injunctive relief.

I. Factual and Procedural Background

The energy efficiency of appliances is governed by two

sets of federal legislation: (1) the Energy Policy and Conser-

vation Act (“EPCA”), as amended by the National Appliance

Energy Conservation Act of 1987 (“NAECA”), Pub. L. No.

100-12, 101 Stat. 103 (codified at 42 U.S.C. § 6291 et seq.);

and (2) the Energy Policy Act of 1992 (“EPACT’”), Pub. L.

No. 102-486, 106 Stat. 2776 (codified at 42 U.S.C. § 6311 ef

seq.). NAECA contains efficiency standards, testing proce-

dures, and labeling requirements, among other regulations,

for certain residential appliances, referred to as “covered

products.” These inciude appliances such as refrigerators,

room air conditioners, and fluorescent lamp ballasts. 42

U.S.C. § 6292(a) (enumerating “covered products”). EPACT

contains similar regulations for certain types of industrial

equipment, referred to as “covered equipment.” These include

certain electric motors, packaged terminal air conditioners

and heat pumps, storage water heaters, and instantaneous

water heaters. 42 U.S.C. § 6311(1) (defining “covered equip-

ment”). Together, NAECA and EPACT provide the statutory

framework under which the Federal Trade Commission

(“FTC”) and the Department of Energy (“DOE”) exercise

authority and promulgate regulations relating to the manufac-

ture and marketing of appliances and equipment.

EPCA “was enacted in 1975 as part of a ‘comprehensive

national energy policy.” Natural Res. Def. Council v.

Herrington, 768 F.2d 1355, 1362 (D.C. Cir. 1985) (quoting S.

Rep. No. 516, 95th Cong., Ist Sess. 116 (1975), U.S. Code

Cong. & Admin. News 1975 p. 1762 (conference report)).

NAECA and EPACT both contain preemption provisions.

The NAECA preemption provision reads as follows:

(1) Effective on March 17, 1987, this part supersedes

any State regulation insofar as such State regulation

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provides at any time for the disclosure of informa-

tion with respect to any measure of energy con-

sumption of any covered product if—

(A) such State regulation requires testing or the

use of any measure of energy consumption,

water use, or energy descriptor in any manner

other than that provided under section 62937 of

this title; or

(B) such State regulation requires disclosure of

information with respect to the energy use,

energy efficiency, or water use of any covered

product other than information required under

section 6294? of this title.

42 U.S.C. § 6297(a)(1)(A), (B). In addition, NAECA pro-

vides general rules of preemption for state energy conserva-

tion standards both before and after a federal standard be-

comes effective for a product.* 42 U.S.C. §§ 6297(b), (c).

EPACT incorporates all the preemption provisions of 42

U.S.C. § 6297 and makes them applicable to “covered equip-

ment.” 42 U.S.C. § 6316.

In August 2001, the California legislature instructed defen-

dant California Energy Commission (“CEC”) to “[a]dopt and

implement updated and cost-effective standards” for all appli-

ances “whose use . . . requires a significant amount of energy

on a statewide basis.” Cal. Pub. Res. Code § 25553(b). By

notice published on November 23, 2001, the CEC be-gan its

rule-making on the regulations at issue in this case. The

regulations were adopted by the CEC on February 6, 2002,

and, after several revisions, approved by the California Office

* 42 U.S.C. § 6293 contains provisions relating to testing procedures

used in assessing appliance efficiency.

* 42 U.S.C. § 6294 contains provisions relating to appliance labeling.

4. ‘ ‘ P

The general rules provide for certain enumerated exceptions that are

not relevant to this action.

26a

of Administrative Law on October 28, 2002. The appliance

regulations were scheduled to go into effect on November 27,

2002.

On November 7, 2002, plaintiffs filed this suit for declara-

tory and injunctive relief. Plaintiffs’ complaint sets forth eight

specific challenges to the CEC regulations.

Count One alleges that the CEC section 1607 marking

requirements for NAECA “covered products” are

preempted by 42 U.S.C. § 6297.

Count Two alleges that the CEC section 1607 marking

requirements for EPACT “covered equipment” are

preempted by 42 U.S.C. § 6316.

Count Three alleges that CEC section 1606 informa-

tion disclosure and pre-market approval requirements

are preempted by 42 U.S.C. § 6297.

Count Four alleges that CEC sections 1604(f) and

1605.3(f) establish test procedures and efficiency

standards that are preempted by 42 U.S.C § 6297(a),

(b), and (c).

Count Five alleges that CEC section 1605.1(c)(1)

misrepresents federal standards with respect to four

air conditioner products.

Count Six alleges that federal law prohibits the CEC

from enforcing federal requirements concerning

appliance efficiency.

Count Seven alleges that the CEC’s interpretation of

the term “new construction” in section 1606(H)\(1 F)

iS preempted as impermissibly broad.

Count Eight alleges that the CEC’s requirements

unduly burden interstate commerce.

Plaintiffs moved for a preliminary injunction regarding

Counts One, Two, Three, Four, and Five of the complaint. On

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December 13, 2002, the court enjoined enforcement of the

following regulations:

e CEC section 1607(d)(2) (marking requirements for

NAECA “covered equipment’):

e CEC section 1606's information disclosure and pre-

market approval requirements, and the related en-

forcement provisions of CEC sections 1608(a) and

(b); and

e CEC sections 1605.3(f) and 1604(f)(5), as they relate

to under-20-gallon water heaters.

The court denied the remainder of plaintiffs’ motion for pre-

liminary injunction without prejudice on the ground that

plaintiffs had not sufficiently demonstrated irreparable harm

as to CEC sections 160'(b), (c), and (d)(1)(B), CEC section

1606(a3)(E)’s rounding rule, and CEC section 1605.1(c)(1),

in light of a planned emergency rule-making session.

Subsequent to the court's issuance of the preliminary in-

junction, the CEC engaged in an emergency rule-making

session to address the issues raised by this litigation. The

CEC adopted several amendments to the regulations. Both

parties agree that, as a result of the amendments, plaintiffs’

challenges te CEC section 1607(d\(1)(B), which was part of

Count One, and Counts Four and Five are now moot. Regard-

ing this motion for judgment on the pleadings, therefore, the

court need only address the remaining issues in Count One

and Counts Two, Three, Six, Seven, and Eight.

ll. Discussion

A. Applicable Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(c), “{ajfter

the pleadings are closed but within such time as not to delay

the trial, any party may move for judgment on the pleadings.”

“Generally, district courts have been unwilling to grant a Rule

12(c) dismissal ‘unless the movant clearly establishes that no

material issue of fact remains to be resolved and that he is

28a

entitled to judgment as a matter of law.’” Doleman v. Meiji

Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984) (quot

ing C. Wright & A. Miller, Federal Practice and Procedure:

Civil, § 1368 at 690 (1969)).

The same standard applies to motions made under Rule

12(c) as applies to motions made under Rule 12(b)(6). See 2

James Wm. Moore et al. Moore's Federal Practice § 12.38

(3d ed. 2002). Therefore, on a motion for judgment on the

pleadings, the factual allegations of the non-moving party are

taken as true. Doleman, 727 F.2d at 1482 (citing Austad v.

United States, 386 F.2d 147, 149 (9th Cir. 1967)). “Courts

dismiss complaints under Rule 12(c) for either of two rea-

sons: (1) lack of a cognizable legal theory, or (2) insufficient

facts under a cognizable legal theory.” Young v. Car Rental

Claims, Inc., _ F. Supp. 2d _, No. CV02-00770, 2003 WL

1786471, at *2 (D. Haw. March 31, 2003). When deciding a

Rule 12(c) motion, the court “may consider pleadings, docu-

ments attached as exhibits or incorporated by reference in the

pleadings, and matter of which the Court may take judicial

notice; the Court may also consider documents not explicitly

incorporated in or attached to the complaint if the complaint

necessarily relies on these documents and their authenticity is

not questioned.” Milne v. Slesinger, No. CV02-08508, 2003

WL 21076983, at *3 (C.D. Cal. May 8, 2003).

Under the Supremacy Clause of the Constitution, Congress

has the power to pass legislation that preempts state law. See

U.S. Const. art. VI, cl. 2; Crosby v. Nat'l Foreign Trade

Council, 530 U.S. 363, 372 (2000) (“A fundamentai principle

of the Constitution is that Congress has the power to preempt

state law.”). Such preemption may be either express cr im-

plied. Here, plaintiffs argue only express, not implied, pre-

emption. Express preemption may be found where Congress

has explicitly stated “the extent to which its enactments

preempt state law.” English v. Gen. Elec. Co., 496 U.S. 72, 79

(1990) (“Pre-emption is fundamentally a question of congres-

sional intent, and when Congress has made its intent known

29a

through explicit statutory language, the courts’ task is an easy

one.”’) (internal citation omitted)).

In determining the scope of an express preemption provi-

sion, the court is guided by two presumptions. Medtronic v.

Lohr, 518 U.S. 470, 485 (1996). First, the court presumes that

“‘the historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear and

manifest purpose of Congress.’” /d. (quoting Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947)). Second, “‘{t}he

purpose of Congress is the ultimate touchstone’ in every pre-

emption case.” /d. (quoting Retail Clerks v. Schermerhorn,

375 U.S. 96, 103 (1963)). Congressional intent is “primarily

discerned from the language of the pre-emption statute and the

‘statutory framework’ surrounding it.” /d. (citation omitted).

B. Plaintiffs’ Claims

1. Count One: CEC § 1607 Marking Requirements for

NAECA “Covered Products”

a. CEC §§ 1607(b) and (c)

Under CEC section 1608(a\2\(B), all the marking require-

ments set forth in CEC section 1607 must be met for “any

unit of any appliance . . . sold or offered for sale in Califor-

nia.” CEC section 1607(b) requires that the manufacturer's

name, brand name or trademark, the mode! number, and the

date of manufacture (year and month, or smaller increment)

be “permanently, legibly, and conspicuously displayed on each

unit.” If the date is in a code that is “not readily understand-

able to the layperson,” section 1607(b) requires manufactur-

ers to provide the code immediately, on request, to the CEC.

Section 1607(c) further provides that: (1) for plumbing fix-

tures and plumbing fittings, the required information be dis-

played on an accessible place on each unit or on the unit's

—_—

* The amended section 1607(b) no longer requires that this information

appear on the product's nameplate

packaging; (2) for lamps, the required information be dis-

played on an accessible place on each unit, or the unit's pack-

aging, or “where the unit is contained in a group of several

units in a single package, on the packaging of the group”;

and (3) for fluorescent lamp ballasts, that the date

of manufacture indicate year and three-month or smaller in-

crement.

In analyzing whether these requirements are preempted, the

court must begin, as it does in any statutory analysis, with the

plain language of the statute. See United States v. Hanousek,

176 F.3d 1116, 1120 (9th Cir. 1999) (“If the language of the

statute is clear, we need look no further than that language in

determining the statute's meaning.”). Relevant to the court's

analysis of the plain language of a statute is “‘the structure

and purpose of the statute as a whole,’ as revealed not only in

the text, but through the reviewing court's reasoned under-

standing of the way in which Congress intended its regulatory

scheme to affect business, consumers, and the law.” Med-

tronic, 518 U.S. at 488.

NAECA provides, in pertinent part, for preemption of state

regulations that require “the disclosure of information with

respect to any measure of energy consumption or water use of

any covered product if—such State regulation requires disclo-

sure of information with respect to the energy use, energy

efficiency, or water use of any covered product other than

information required under section 6294 of this title.” 42

U.S.C. § 6297(a\( 1B). CEC sections 1607(b) and (c) clearly

require the disclosure of information. See Section II(B)(3),

infra (discussing the meaning of “disclosure of information”).

Therefore, the court must determine: (1) if this disclosure of

information is “with respect to any measure of energy con-

sumption or water use” and (2) if it is, whether the disclosure

of information required by the CEC regulations is “other than

information required by section 6294.”

3la

On their face, CEC sections 1607(b) and (c), which require

disclosure of the manufacturer's name, the model number,

and the date of manufacture, do not appear to call for the dis-

closure of information with respect to any measure of energy

consumption or water use. However, at oral argument on

plaintiffs’ motion for preliminary injunction, defendants stated

that it was necessary to have the date of manufacture on the

products to determine compliance with energy consumption

standards. (Dec. 5, 2002 Hr’g Tr. at 41:22-42:14). In addition,

in defendants’ opposition, they state that “[a]ll of the mark-

ing requirements [in section 1607] help foster EPCA’s pri-

mary goal of energy efficiency,” and that “(t]he purpose of

[these] regulations is to allow compliance and enforcement

personnel . . . to determine quickly which efficiency standard

is applicable . . . .” Therefore, because the purpose of the

regulations appears to be facilitating determinations of whether

products comply with energy efficiency standards, CEC sec-

tions 1607(b) and (c) do require disclosure of information

‘with respect to any measure of energy consumption.

Thus, the court must determine whether this disclosure of

information is “other than information required under section

6294.” Section 6294 of NAECA provides for labeling re-

quirements for “covered products.” The requirements of

NAECA, including those of section 6294, are implemented

through FTC regulations. 16 C.F.R. § 305.1 (setting forth the

scope of the regulations implementing NAECA).

The FTC regulations require, among other things, that

the name of the manufacturer and the model number ap-

pear on the labels of most “covered products.” 16 C.F.R.

§ 305.1 1(ay(5)(B), (a)(S)(C). Regarding lighting products, the

FTC regulations do not require the manufacturer’s name

or the model number to appear on the label. 16 C.F.R.

§ 305.1 1(d), (e). The FTC regulations do not require that the

labels of “covered products” include the date of manufacture.

Rather, the federal regulations require that the date of manu-

facture be reported to the FTC whenever a new basic model is

32a

introduced on the market, or, for fluorescent lamp ballasts,

with the first submission for each basic model. 16 C.F.R.

§ 305.8(a)(1), (a2). The federal regulations also provide

manufacturers with options regarding the placement of labels

on “covered products” and allow the information to be

displayed on a hang tag instead of an affixed label. 16 C.F.R.

§ 305.1 1(6), (7).

The requirements of CEC sections 1607(b) and (c) go be-

yond the federal requirements in two ways: (1) by providing

that the date of manufacture be marked on “covered prod-

ucts” when the FTC regulations require only that this in-

formation be submitted to the FTC in certain circumstances;

and (2) by providing that the manufacturer’s name and model

number be marked on the products themselves rather than on

a label or hang tag (or in the case of lighting products not

provided on a label at all), as required by the FTC regula-

tions. Therefore, CEC sections 1607(b) and (c) require the

disclosure of information “other than” what is required by

section 6294 and its implementing regulations.

Accordingly, because CEC sections 1607(b) and (c) require

disclosure of information with respect to any measure of en-

ergy consumption and because that disclosure is “other than”

what is required by section 6294, CEC sections 1607(b) and

(c)—creating marking requirements for “covered products”—

are preempted under the plain language of NAECA.

b. CEC § 1607(d) (1)

CEC section 1607(d)(1) states that “(t]he marking required

by 16 CFR Part 305 (2001) shall be displayed on all unites

[sic] of all federally-regulated consumer products of” certain

classes. Plaintiffs contend that this regulation is an imper-

missible attempt to enforce a federal standard. Defendants

acknowledge that the CEC does not have the authority to

enforce federal efficiency standards at the point of sale. See

Section 11(B)(4), infra, (further discussing state enforcement

of federal standards). As discussed above, marking require-

33a

ments relate to energy efficiency standards in that they fa-

cilitate compliance determinations. See Section 11(B)(1 a),

supra. Under CEC section 1608(a\2)(B), all the marking re-

quirements set forth in CEC section 1607 must be met for

appliances sold or offered for sale in California. Therefore, if

a product did not comply with the federal marking require-

ments incorporated into CEC section 1607(d\1), the CEC

could potentially block the product's sale in California. Be-

cause such blockage would constitute impermissible enforce-

ment of a federal standard, CEC section 1607(d\1) is pre-

empted.

2. Count Two: CEC § 1607 Marking Requirements for

EPACT “Covered Equipment”

CEC section 1607(d\(2) requires that “covered equipment”

be marked with “applicable energy performance information

shown in Table V™ of the regulation. With regard to this

regulation, defendants reiterate the argument they made at the

preliminary injunction stage—that, because the DOE has not

prescribed labeling rules for most “covered equipment,” the

CEC is merely filling a regulatory gap left by DOE inaction."

Under 42 U.S.C. § 6315, the DOE is authorized to prescribe

labeling rules for classes of “covered equipment” for which a

test procedure has been prescribed. The DOE's power to

prescribe test procedures under EPACT is discretionary. 42

U.S.C. § 6314(a). Therefore, the lack of DOE regulations

regarding the labeling of “covered equipment” is due to the

fact that, currently, the DOE has not prescribed test proce-

dures for most classes of “covered equipment.”

The EPACT preemption provision states that a state regu-

lation that provides “at anv time for the disclosure of informa-

tion with respect to any measure of energy consumption” is

preempted where the required disclosure is of information

* The DOE has prescribed marking requirements for electric motors

See 10 CFR. §§ 431.81, 431.83

34a

“other than” what is required by EPACT'’s labeling provision.

42 U.S.C. § 6316 (incorporating the NAECA preemption

provision found in 42 U.S.C. § 6297) (emphasis added).

Therefore, the statutory language does not contemplate that

preemption of state regulations regarding the marking of

“covered equipment” is dependent on the passage of federal

regulations regarding labeling.

In addition, the touchstone of any preemption analysis is

Congressional intent. See Medtronic, 518 U.S. at 485. As

discussed above, EPCA, the statute preceding NAECA and

EPACT, was enacted as part of a comprehensive national

energy policy. See S. Rep. No. 516 (1975). Furthermore,

NAECA resulted from a situation where “appliance manu-

facturers were confronted with the problem of a growing

patchwork of differing State regulations which could in-

creasingly complicate their design, production and marketing

plans. Regulations in a few populous States could as a practi-

cal matter determine the product lines sold nationwide, even

in States where no regulations existed.”’ S. Rep. No. 100-6 at

4 (1987). EPACT incorporates NAECA’s preemption provi-

sions. Thus, Congress clearly intended to create some uni-

formity in regulations under the EPACT regime.

Therefore, as discussed at length in the court's December

13, 2002 Order, where: (1) preemption is effective “at any

time™; (2) Congress clearly intended to create a comprehen-

sive energy policy scheme and a statute with some preemp-

tive effect; and (3) am agency is vested with discretion in

promulgating regulations, as the DOE is here, DOE inaction

” Defendants state that the language regarding the “patchwork of dif-

fering state regulations” refers only to Congressional concern about poten-

tally differing state regulations establishing efficiency standards. Even if

this statement was made in the context of a discussion of efficiency stan-

dards, there 1s no evidence that congressional concern about the problem-

atic situation that would be created if different states enacted different

regulatwons was limited solely to efficrency standards

3Sa

does not create a regulatory gap that the states are free to fill

as they like. Rather, in light of the circumstances listed above

and the EPACT statutory framework, the decision by the

DOE to forego, for the time being, promulgating test proce-

dures and accompanying regulations for most classes of “cov-

ered equipment,” implies a determination that the area is

best left unregulated.” See Arkansas Elec. Coop. Corp. v.

Arkansas Public Serv. Comm'n, 461 U.S. 375, 384 (1983)

(“[A] federal decision to forego regulation in a given area

may imply an authoritative federal determination that the area

is best left wnregulated, and in that event would have as much

pre-emptive force as a decision fo regulate.” (emphasis in

original)); see also Dec. 13, 2002 Order Section 11(B)(!).

Accordingly, CEC section 1607(d)(2) is preempted by

EPACT.

* According to a declaration submitted by defendants, the DOF drafted

a final rule for test procedures for “covered equipment” in 2000 “during

the course of an cxtensive rulemaking,” but the rule has not yet been pub-

lished. (Martin Supp. Decl. 4 20). The mere fact that a forthcoming

federal rule may preempt a state rule in the future does not mean that the

current state rule must “give way under the Supremacy Clause.” See Ray

v. Atlantic Richfield Co., 435 U.S. 151, 172 (1978). However, the fact that

the DOE has engaged m rulemaking on test procedures for “covered

equipment” bolsters the conclusion that the current lack of DOE regula-

tions in this area is the result of an exercise of DOE discretion. Moreover,

the preemption provisions at issue in the cases defendants cite in support

of their argument that DOE inaction should have no preemptive effect are

different from the preemption clause at issue here, which, the court has

determined, 1s not dependent upon the promulgation of federal regula-

tions. See Toy Mfrs. of Am., Inc. v. Blumenthal, 986 F.2d 615, 620 (2d Cir.

1993) (stating that preemption provision in the Federal Hazardous Sub-

stances Act was contingent on existence of federal regulation addressing

same issues as state regulation), New Jersey State Chamber of Commerce,

v. Hughey, 774 F.2d 587, 592 (3d Cir. 1985) (stating that OSHA's pre-

emption provision expressly gives statcs the authority to regulate matters

not governed by a federal standard).

36a

3. Count Three: CEC § 1606 Information Disc'osure

and Pre-Market Approvul Requirements

a. Information Disclosure and Pre-Market Approval

Requirements

CEC section 1606 requires manufacturers to submit speci-

fied information to the CEC for each appliance offered for

sale or sold in California. In particular, CEC section |606(a),

Table U, sets forth the specific information that must be

submitted for various appliances, including both “covered

products” and “covered equipment’. The recent amendments

to this regulation make the submission of some items of infor-

mation contained in Table U voluntary, rather than manda-

tory. CEC sections 1606(a\ 1A) and (B) provide that the

CEC’s executive director will specify formats and schedules

for information submittal. CEC section 1606(b) then provides

for a procedure by which the executive director will review

the submitted statements and determine whether or not an

appliance complies with CEC regulations.”

The parties dispute whether the phrase “disclosure of in-

formation,” which is used in both the introductory and modi-

fying clauses of section 6297, should be interpreted broadly

or narrowly. Defendants contend that: (1) “disclosure of in-

formation” should be interpreted narrowly as referring only to

labeling requirements and “other point of sale information

disclosure to consumers”, and (2) even if the CEC regulations

require “disclosure of information” within the meaning of

NAECA’s preemption provision, they do not require data

regarding measures of energy consumption or water use. The

” CEC section 1606(b\( 2A) delineates time periods within which the

executive director must inform manufacturers as to whether thew products

are compliant. For cxample, through February 28. 2004, if the manufac-

turer's submission of information ts filed electronically, the executive di-

rector must inform the manufacturer of the determination withen thirty

calendar days after the receipt of the submission

37a

meaning of the phrase “disclosure of information” is some-

what unclear from the plain language of section 6297. There-

fore, the court must look to the statutory framework to deter-

mine the meaning of this phrase. Furthermore, where the

statutory language is ambiguous, the court “may look to

legislative history as a guide to its meaning.” United States v.

McElvea, \58 F.3d 1016, 1018-19 (9th Cir. 1998).

The statutory and regulatory framework of NAECA con-

templates disclosures of information regarding energy con-

sumption that go beyond disclosures of information on labels.

See Dec. 13, 2002 Order at Section 1(C)(1 a). For example,

section 6296(d) of NAECA states that the DOE may require

manufacturers of “covered products” to submit information or

reports to the DOE regarding, among other things, energy

efficiency, energy use, or water use of “covered products.”

In addition, the FTC regulations implementing NAECA

provide both labeling requirements and requirements for the

submission of data to the FTC including data regarding “the

estimated annual energy consumption . . . or energy effi-

ciency rating . . . for each basic model in current production.”

16 C.F.R. § 305.8(a)(1). The FTC regulations also require the

submittal of the “model numbers for each basic model; the

total energy consumption, determined im accordance with

§ 305.5, used to calculate the estimated annual energy con-

° Defendants contend that section 6296 is of “dubious relevance” to

the preemption inquiry because section 6297 refers only to sections 6293

and 6294, the testing and labeling provisions of NAECA, in its modifying

clauses. However, when a statutory phrase is ambiguous. the court must

look to the overall statutory framework to discern the meaning of the

phrase. See Medtronic, 518 U.S. at 488. Moreover, the provisions of sec-

tion 6296 are inextricably related to those of section 6294. For example,

manufacturers of “covered products” to which a rule under section 6294

applies must, upon request, “provide the data from which the information

included on the label and required by the rule was derived.” 42 U S.C

§ 6296(b) 2).

38a

sumption or energy efficiency rating; the number of tests

performed; and, its capacity... .” /d.

While defendants are correct that section 6294(c) refers to

labels and other information provided to consumers at the

point of sale, as the above discussion makes clear, NAECA

and its implementing regulations encompass disclosures of

information that go beyond disclosures made to consumers at

the point of sale and include disclosures to federal agencies.

Accordingly, the phrase “disclosure of information” cannot

be read narrowly as defendants suggest. Rather, “disclosure

of information” encompasses disclosures of information such

as the ones required by CEC section 1606.

The court must therefore determine whether CEC section

1606 requires the disclosure of information with respect to

measures of energy consumption or water use such that

CEC section 1606 is preempted by NAECA. NAECA defines

“measure of energy consumption” as “energy use, energy

efficiency, estimated annual operating cost, or other meas-

ure of energy consumption.” 42 U.S.C. § 6291(8) (emphasis

added). The statute defines “energy use” as “the quantity of

energy directly consumed by a consumer product at point of

use”, and “energy efficiency” is defined as “the ratio of the

useful output of services from a consumer product to the

energy use of such product.” 42 U.S.C. §§ 6291(4), (5).

According to defendants, taking these statutory definitions

together, “section 6297(a)(1) could preempt a State regulation

on ‘the disclosure of information with respect to any measure

of energy consumption . . . of any covered product’ only if

the information specifically describes how much energy the

product ‘directly consume[s]’ . . . or, for measures of energy

efficiency, how much useful output the appliance produces in

relationship to its energy use.” Defendants’ definition, how-

ever, ignores the “or other measure of energy consumption”

language contained in the statutory definition. Moreover, as

discussed in the context of the marking of “covered pro-

39a

ducts,” information that is not apparently related to measures

of energy consumption, such as the date of manufacture, may

still relate to compliance with measures of energy con-

sumption. See Section | 1(B)(1 (a), supra.

Finally, as the court noted in its previous order, allowing

each state to require manufacturers to submit different pieces

of information about their products opens the door to the

creation of the precise situation that Congress sought to avoid

in passing NAECA—-subjecting manufacturers to a patch-

work of potentially inconsistent state regulations. See Dec.

13, 2002 Order at Section I(C)\(1l)(a)(i); see also Section

11(B\(2), supra. Therefore, because CEC section 1606 pro-

vides for “the disclosure of information with respect to any

measure of energy consumption or water use,” its infor-

mation-reporting requirements, and the related pre-market

approval requirements in CEC section 1608(a), are preempted

by NAECA.

While the DOE has not promulgated a regulatory scheme

for “covered equipment” under EPACT similar to the one the

FTC has promulgated under NAECA, EPACT expressly

applies the NAECA preemption provision and the relevant

provisions of section 6296 to “covered equipment.” 42 U.S.C.

§§ 6316(b)(1). As discussed in Section II(B)(2), supra, pre-

emption under EPACT is not contingent on the promulgation

of regulations by the DOE. Therefore, the CEC 's information

submittal requirements are also preempted as applied to

“covered equipment.”

b. The Rounding Rule

CEC section 1606(a)(3)(E) (the “rounding rule”) provides

rules regarding how test data required to be submitted under

Table U must be reported. Because the court has determined

that the information submittal requirements for “covered pro-

ducts” and “covered equipment” are preempted, the issue of

how test data must be reported to the CEC is moot. Accord-

40a

ingly, the court need not address whether the rounding rule is

preempted.

4. Count Six: CEC Enforcement of Federal Require-

ments

Plaintiffs claim that the CEC cannot enforce federal

requirements regarding “covered products” and “covered

equipment.” In particular, plaintiffs allege that the CEC regu-

lations impermissibly allow state enforcement of federal

energy efficiency standards.'' Defendants acknowledge that,

pursuant to section 6297(c),'? the CEC does not have the

authority to enforce federal efficiency standards at the point

of sale, and CEC section 1608(a)(4) has been amended tc

clarify that the CEC cannot block the sale of a product in

California based solely on the product's fmiure to comply

with a federal standard. Therefore, the court must consider

whether any of the remaining enforcement provisions in the

CEC regulations are preempted.

CEC section 1608(e) sets forth provisions for the “en-

forcement testing of appliances.” Under section 1608(e¢), the

CEC executive director “shall periodically cause” the testing

of appliances—pursuant to federal testing procedures—to

determine whether these products comply with federal and

State standards that are set forth in section 1605 of the

regulations. If it is determined, after calculating the mean

results of two tests, that a product is not compliant, that

’ Plaintiffs’ ob ections to the CEC’s enforcement of federal marking

requirements are discussed at Section 11(B)!)(b), supra

* Section 6297(c), in pertinent part, provides that, with certain excep-

tions not relevant here, when a federal energy conservation standard be-

comes effective for a covered product pursuant to section 6295, “no State

regulation concerning the energy efficiency, energy use, or water use of

such covered product shall be effective with respect to such product

Although defendants seck to confine the limitation on thew enforcement

powers to enforcement at the pont of sale, no such limitation ts evident

from the language of the statute

4la

product will be removed from California’s database. CEC

$§ 1608(e\1), (2). In the case of a federally regulated appli-

ance, if the test results for a product do not meet a federal

standard or are at variance with what the manufacturer has

reported to the DOE or the FTC, the regulations provide that

the CEC shall inform the proper federal agency. CEC

§ 1608(2). The cost of testing, after the initial test, is borne by

manufacturers.

Although the CEC regulations do not provide that products

that do not comply with federal standards will be banned

from sale in California, CEC section 1608 still sets up a man-

datory testing regime for federally regulated appliances that

results in certain negative consequences for failure to comply.

Such mandatory testing requirements that are designed to en-

sure compliance with federal standards are not meaningfully

distinguishable from the enforcement of federal energy effi-

ciency standards. Accordingly, the enforcement provisions of

CEC section 1608, as they apply to “covered products” and

“covered equipment,” are preempted.

5. Count Seven: The CEO's Interpretation of the Term

“New Construction”

Section 6297(c\(3) contains an exception to the preemption

of state regulations “concerning the energy efficiency, energy

use, or water use” of a covered pruduct if the state regulation

is “in a building code for new construction... .” CEC sec-

tion 1606(h)( 1X F) uses the term “new construction” in a sec-

tion containing a statement that is requirea io be placed in a

trade directory that can be used for any purpose the CEC

database created pursuant to section 1606(c) is used for.'’ The

California building code applies both to new buildings and to

The relevant part of section 1606(h\1)F) states that a trade di-

rectory must contain a statement saying that “UNLESS INDICATED

OTHERWISE, any appliance listed in this directory may be sold,

offered for sale, or installed in new construction im California.”

42a

any new construction in existing buildings for which a build-

ing permit is required. Cal; Code Regs. tit. 24, §§ 100(d)(2),

100(d)(3), 100(a) (2001) .'

“New construction” is not defined by NAECA or EPACT

and has not been interpreted in the implementing regulations

for either statute. Moreover, the meaning of the phrase is not

apparent from the text of the statutory provision in which it

appears, and the parties have not cited to any relevant legisla-

tive history regarding the construction of this phrase. Piain-

tiffs urge the court to adopt the definition of “new construc-

tion” that has been used in other federal regulations—that

“new construction” refers to the building of a new structure

and/or an addition to an existing structure that increases the

floor area by more than 100 percent—not to any new con-

struction in existing buildings for which a building permit is

required. See Pls.’ P. & A."s at 26 n.39 (citing U.S. Dep't of

Housing and Urban Development regulations 24 C.F.R.

§ 583.5 and 24 C.F.R. § 884.01; Dep't of Veterans Affairs

regulation 38 C.F.R. § 17.701; and Federal Emergency Man-

agement Agency regulation 44 C.F.R. § 9.4).

However, when passing legislation, Congress is generally

presumed “knowledgeable about existing law pertinent to the

legislation it enacts.” Goodyear Atomic Corp. v. Miller, 486

“la a series of related arguments, defendants contend that because

plaintiffs have not shown that they have been injured or “adversely

affected” by the CEC’s definition of new construction: (1) plaintiffs do

not have standing to assert this claim; (2) that the claim is not npe, and

(3) that the court does not have subject matter jurisdiction under 42 U.S.C.

§ 6306(c). Although the declarations submitted by plaintiffs do not spe-

cifically address the injury that may be caused by the definition of “new

construction,” plaintiffs have detailed the various burdens on manufactur-

ers that are created by a state regulatory scheme that is different from a

federal regulatory scheme. Accordingly, the court is satisfied that plain-

tiffs have demonstrated injury such that the court may reach the merits

of plaintiffs’ claim that the CEC’s definition of “new construction” is

preempted.

43a

U.S. 174, 184-85 (1988) (stating that, “in the absence of

affirmative evidence in the language or the history of the

statute,” the Court was unwilling to assume that Congress

was ignorant of relevant state laws). When NAECA was

passed, the California building code used the phrase “new

construction” in the same context as the phrase is used in the

current code. The parties dispute whether the scope of the

phrase is exactly the same in the current California code as it

was in the California building code that was in existence

when NAECA was passed.

Regardless, plaintiffs have not demonstrated that Congress

intended a more restrictive meaning of “new construction”

than that contained in the California Code or that Congress

was ignorant of California's use of the phrase “new con-

struction” in its building code.'* In light of the presumption

that Congress is aware of relevant state laws when it enacts

federal legislation, the court cannot determine, on the record

currently before it, that California's definition of “new con-

struction” is preempted.'*

6. Count Eight: Burden on Interstate Commerce

Finally, plaintiffs contend that the CEC regulations at issue

in this litigation constitute an impermissible burden on inter-

state commerce. This claim is moot as to those regulations

that the court has determined are preempted. Therefore, the

* Indeed, Congress was clearly aware of the cxssting Califorma energy

efficiency standards when it passed NAECA because t referred to them in

section 6295(b) 3 (AKuyl) of NAECA

° In addition, as plaintiffs’ citateons to other federal statutes where the

term “new construction” has been defined in implementing regulations

evidences, the federal government rs capable of specifically defimng “new

construction” where # wishes to do so. In the absence of any mdication

that Congress intended to impart a specific definition to “new construc-

tion” in the statute at ewe here, the court rs wrwilling to write plaintiffs’

definition of that phrase rato the statute

44a

court must consider this claim only as to the California defi-

nition of “new construction.”

In order to establish a claim under the dormant Commerce

Clause, a party must show that: (1) “the state law or regula-

tion in question penalizes interstate commerce” and (2) that it

“does so without sufficient economic justification.” Nat'l

Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 857 (9th Cir.

2002) (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142

(1970)). Plaintiffs have advanced no arguments in support of

their claim that the CEC regulations burden interstate com-

merce. Moreover, it is far from clear that using a broad

definition of “new construction” in California penalizes inter-

State commerce. Accordingly, the court cannot conclude that

the California definition of “new construction” violates the

dormant Commerce Clause.

IT IS THEREFORE ORDERED that:

(1) plaintiffs’ motion for judgment on the pleadings be,

and the same hereby is, DENIED as to the term “new con-

struction” as used in CEC section 1606(h1)(F) and Title 24

of the California Code of Regulations; and

(2) plaintiffs’ motion for judgment on the pleadings be,

and the same hereby 1s, GRANTED as to CEC sections 1606,

1607(b) and (c), 1607(d\ 1) and (d\2), and the related en-

forcement and pre-market approval provisions of CEC

section 1608. Defendants are permanently enjoined from

enforcing those regulations as against plaintiffs.

DATED: June 10, 2003

/s/ William B. Shubb

WiLLtAM B. SHuses

UNITED STATES DISTRICT JUDGE

45a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed June 3, 2005]

No. 03-16621

D.C. No. CV-02-02437-WBS/PAN

Aim CONDITIONING AND REFRIGERATION INSTITUTE; GAS

APPLIANCE MANUFACTURERS ASSOCIATION, ASSOCIATION

oF Home APPLIANCE MANUFACTURERS; NATIONAL

ELECTRICAL MANUFACTURERS ASSOCIATION,

Plaintif}s-Appellees,

ENERGY RESOURCES CONSERVATION AND DEVELOPMENT

COMMISSION; WILLIAM J. KEeese, Chairman; ROBERT

PERNELL, Commissioner, AURTHUR H. ROSENFELD,

Commissioner, James D. Boyd, Commissioner; JOHN L.

GEESMAN, Commissioner,

Defendants -Appetiants.

ORDER

Before: B. FLETCHER, NOONAN, and THOMAS, Circuit

Judges

The attached amended opinion is substituted for the origi-

nal opinion filed by the panel. With the amendments, Judge

B. Fletcher and Judge Thomas have voted to deny the petition

for rehearing. Judge Noonan has voted to grant the petition

for rehearing

46a

The petition for rehearing en banc was circulated to the

entire court. No judge of the court called for a vote on the

petition for rehearing en banc within the time established to

do so

The petition for rehearing and petition for rehearing en

banc are DENIED.

No further petitions for rehearing will be entertained.

47a

APPENDIX D

FEDERAL STATUTE

42 U.S.C. § 6316. Administration, penalties, enforcement,

and preemption

(a) Application of certain sections to same extent and in same

manner as applicable in part A

The provisions of section 6296(a), (b), and (d) of this title, the

provisions of subsections (1) through (s) of section 6295 of

this title, and section’ 6297 through 6306 of this title shall

apply with respect to this part (other than the equipment

specified in subparagraphs (B), (C), (D), (E), and (F) of

section 6311(1) of this title) to the same extent and in the

same manner as they apply in part A of this subchapter. In

applying such provisions for the purposes of this part—

(1) references to sections 6293, 6294, and 6295 of this

title shall be considered as references to sections 6314,

6315, and 6313 of this title, respectively;

(2) references to “this part” shall be treated as referring

to part A-1 of this subchapter;

(3) the term “equipment” shall be substituted for the

term “product”;

(4) the term “Secretary” shall be substituted for “Com-

mission” each place it appears (other than in section

630X(c) of this title);

(5) section 6297(a) of this title shall be appiied, in the

case of electric motors, as if the National Appliance

Energy Conservation Act of 1987 was the Energy Policy

Act of 1992;

(6) section 6297(b)(1) of this title shall be applied as if

electric motors were fluorescent lamp ballasts and as if

' So in original. Probably should be “sections”

48a

the National Appliance Energy Conservation Amend-

ments of 1988 were the Energy Policy Act of 1992;

(7) section 6297(b)(4) of this title shall be applied as if

electric motors were fluorescent lamp ballasts and as if

paragraph (5) of section 6295(g) of this title were section

6313 of this title; and

(8) notwithstanding any other provision of law, a

regulation or other requirement adopted by a State or

subdivision of a State contained in a State or local

building code for new construction concerning the

energy efficiency or energy use of an electric motor

covered under this part is not superseded by the

standerds for such electric motor established or

prescribed under section 6313(b) of this title if such

regulation or requirernent is identical to the standards

established or prescribed under such section.

(b) Application of certain sections with respect to certain

equipment to same extent and in same manner as applicable

in part A

(i) The provisions of section 6296(a), (b), and (d) of this

title, section 6297(a) of this title, and sections 6298 through

6306 of this title shall apply with respect to the equipment

specified in subparagraphs (B), (C), (D), (E), and (F) of

section 6311(1) of this title to the same extent and in the same

manner as they apply in part B of this subchapter. In

applying such provisions for the purposes of such equipment,

paragraphs (1), (2), (3), and (4) of subsection (a) of this

section shall apply.

(2KA) A standard prescribed or established under section

6313(a) of this title shall, beginning on the effective date of

such standard, supersede any State or focal regulation

concerning the energy efficiency or energy use of a product

for which a standard is prescribed or established pursuant to

such section.

49a

(B) Notwithstanding subparagraph (A), a standard prescribed

or established under section 6313(a) of this title shall not

supersede a standard for such a product contained in a State

or local building code for new construction if—

(i) the standard in the building code does not require

that the energy efficiency of such product exceed the

applicable minimum energy efficiency requirement in

amended ASHRAE/IES Standard 90.1; and

(ii) the standard in the building code does not take effect

prior to the effective date of the applicable minimum

energy efficiency requirement in amended ASHRAE/

IES Standard 90.1.

or established under section 6313(a) of this title shall not

supersede the standards established by the State of California

set forth in Table C-6, California Code of Regulations, Title

24, Part 2, Chapter 2-53, for water-source heat pumps below

135,000 Btu per hour (cooling capacity) that become effective

on January |, 1993.

(D) Notwithstanding subparagraph (A), a standard prescribed

or established under section 6313(a) of this title shall not

supersede a State regulation which has been granted a waiver

by the Secretary. The Secretary may grant a waiver pursuant

to the terms, conditions, criteria, procedures, and other

requirements specified in section 6297(d) of this title.

50a

APPENDIX E

STATE REGULATIONS’

Cal. Code Regs. tit. 20, § 1606. Filing by Manufacturers;

Listing of Appliances in

Database.

(a) Filing of Statements.

Each manufacturer shall file with the Executive Director a

statement for each appliance that is sold or offered for sale in

California. The statement shall contain all of the information

described in paragraphs (2) through (4) of this subsection and

shall meet all of the requirements of paragraph (1) of this

subsection and all other applicable requirements in this

Article. For models tat are in the active database before

November 27, 2002, no information needs to be submitted

until (i) any of the characteristics in Table V is changed or (ii)

the model is discontinued.

The effective dates of this section shall be the same as the

effective dates shown in Section 1605.1, 1605.2 or 1605.3 for

appliances for which there is an energy efficiency, energy

consumption, energy design, water efficiency, water

consumption, or water design standard in Section 1605.1,

1605.2, or 1605.3. For appliances with no energy efficiency,

energy consumption, energy design, water efficiency, water

consumption, or water design standard in Section 1605.1,

1605.2, or 1605.3, the effective date of this section shall be

January |, 2006.

Exceptions: This subsection ts not applicable to: |. torchicres,

and 2. non-commercial cooking products until, as determined

by the Executive Director, there takes effect a federal

standard or a federal reporting requirement for annual

' The California regulations are reproduced here in their current form.

These regulations have been amended since the lawsuit was instituted, but

not in any way matenal to the issues presented here

Sla

cooking energy consumption or for a similar measure of

energy performance, and 3. power supplies, and 4. consumer

audio and video equipment, and 5. refrigerators without doors

and freezers without doors that are not specifically designed

for display and sale of bottled or canned beverages, and 6.

walk-in refrigerators and walk-in freezers, and 7. under-

cabinet luminaires, and 8. low-profile ceiling fans.

(1) General Rules.

(A) Format and Categories. Each statement shall be in a

format (including but not limited to computer formats) and in

categories specified by the Executive Director.

(B) When Different Statements are Required. The Executive

Director may establish, modify, and enforce schedules for the

submittal of statements where it is reasonably necessary for

orderly processing of submittals, for example when

manufacturers or third parties often submit many statements

simultaneously.

manufacturer may use asterisks as a substitute for letters,

numbers, blanks, or other characters in the model number,

provided that an asterisk (i) shall be used only for a part of the

mode! number that does not indicate energy consumption,

energy efficiency, water consumption, or water efficiency, or

a design or feature affecting such efficiency or consumption;

(ii) shall represent a single letter, number, blank, or other

character at the asterisk’s location in the model number; and

(iii) shall not be used for any of the first four letters, numbers,

blanks, or other characters in the model number.

(D) Different Functions. Except as provided in Section

1606(a)(1)(G), if the same appliance is sold or offered for sale

as more than one type of appliance shown in Table V (for

example, if the appliance can serve both water heating and

pool heating functions), the manufacturer shall submit a

separate statement for each appliance type. Each appliance

52a

type for which a statement is submitted must match all the

common identifiers shown in Table V.

(E) Multiple Statements. A manufacturer may file statements

for more than one appliance in a single submittal to the

Executive Director. If a submittal contains statements for

more than one appliance, there shall be only one statement for

each appliance, except as provided in Sections 1606(a)(1)(D)

and 1606(a)(1)(G). The Executive Director shall allow

multiple statements tc be submitted on the same sheet of

paper or in the same electronic file under conditions she or he

determines are reasonably necessary to ensure accuracy and

compatibility with the database.

(F) Split System Central Air Conditioners. The statement for

split system air conditioners shall be for the combination of

the compressor-containing unit and the non-compressor-

containing unit most likely to represent the highest national

sales volume, consistent with Section 1604(c)(3).

(G) Combination Space-Heating and Water-Heating Appli-

ances. Manufacturers of combination space-heating nd

water-heating appliances shail file two statements for each

such appliance. The first statement shall contain the

information listed in Table V for combination space-heating

and water-heating appliances, and all other information

shown in Table V for “all appliances;” and the second

statement shall contain the information listed in Table V for

the primary function of the appliance according to the

determination required by Sections 1695(e) and 1605(f), and

containing all other information shown in Table V for “all

appliances.” Each appliance type for which a statement is

submitted must match all the common identifiers shown in

Table V.

(2) Manufacturer Information

(A) The name, address, telephone number, and, if available,

fax number, URL (web site) address, and e-mail address of

the manufacturer.

53a

(B) The name, address, telephone number, and, if available,

fax number and e-mail address of the individual to contact

concerning the statement pursuant to Section 1606(a)(4).

There shall be only one individual to contact for each

category (box) in the “Appliance” column of Table V, except

that the individual may, during his or her absence, delegate

his or her duties in this regard.

fax number and e-mail .ddress of the person signing the

declaration pursuant to Section 1606(a)(4).

(3) Testing and Performance Information.

(A) A statement that the appliance has been tested in

accordance with all applicable requirements of Sections 1603

and 1604. If Section 1604 provides more than one test method

that may be used, the manufacturer shall identify which

method was used.

(B) The name and address and, if available, telephone

number, fax number, URL (web site) address, and e-mail

address of the laboratory or other institution where the testing

required by Sections 1603 and 1604 was performed.

freezers, commercial freezers, large storage water heaters, and

plumbing fittings, the test reports upon which the

manufacturer relies in filing information pursuant to

paragraph (D) immediately below.

(D) The applicable information listed in Table U; provided,

however, that submittal of information marked with “I” is

voluntary. Where there is text in the “Permissible Answers”

column, the information provided must be one of the answers

shown.

Exception: This subsection (D) does not apply to any water

heater (1) that is within the scope of 42 U.S.C. sections

6292(a)(4) or 6311(1)(F), (2) that has a rated storage volume

S4a

of less than 20 gallons, and (3) for which there is no federal

test method applicable to that type of water heater.

(E) How Tested Data Must Be Reported.

1. For any numerical value required by Table V that is

produced by a test specified in Section 1604, the reported

value shall be no higher for the value for which the consumer

would prefer a high number, and no lower for the value for

which the consumer would prefer a low number, than the

values obtained by testing; unless different specific

instructions are specified in the test method specified in

Section 1604.

2. For any numerical value required by Table V that is

produced by calculation from measured numerical test results,

the reported value shall be no higher for the values where the

consumer would prefer a high number than the exact result of

the calculation, and ne lower than the exact result of the

calculation where the consumer would prefer a low number,

than the values obtained by calculating, unless different

specific instructions are specified in the test method specified

in Section 1604.

3. Manufacturers may report:

a. numbers higher than tested values, where the consumer

would, all other things being equal, prefer lower values (or is

indifferent), and

b. numbers lower than tested values, where the consumer

would, all other things being equal, prefer higher values (or is

indifferent).

Example: An air conditioner is tested using the appropriate

test method specified in Section 1604, and the test method

does not include specific instructions about the precision of

reporting.

e Cooling capacity is measured as: 36,014 Btu per hour.

e For cooling capacity, consumers prefer higher values.

5Sa

e The manufacturer may not report any value over 36,014

Btu per hour.

e The manufacturer chooses to report 36,000 Btu per hour.

Electrical energy use is measured at 3,487 watts.

For electrical energy use, consumers prefer lower values.

e The manufacturer may not report any value under 3,487

watts.

e The manufacturer chooses to report 3,500 watts.

e Using the data the manufacturer chooses to report, EER =

36,000/3,500 = 10.285714.

e For EER, consumers prefer higher values.

e The manufacturer may not report any value of EER over

10.285714 (if EER is reported with only one decimal place.

the maximum value would be 10.2).

e The manufacturer chooses to report EER = 10.2 Btu per

watt hour.

e If the manufacturer had chosen to report the cooling

capacity as 36,014 Btu per hour, and the electrical energy use

as 3,487 watts, the calculated EER would have been

36,014/3,487 = 10.328076. In this c«se the manufacturer

could not report any value of EER over !0.328076 (if EER is

reported with only one decimal place, the maximum value

would be 10.3).

Table V Data Submittal Requirements

[TABULAR OR GRAPHIC MATERIAL SET FORTH AT

, THIS POINT IS NOT DISPLAYABLE}

(4) Declaration.

(A) Each statement shall include a declaration, executed

under penalty of perjury of the laws of California, that (1) all

the information provided in the statement is true, complete,

accurate, and in compliance with all applicable provisions of

56a

this Article; (2) if the statement is being filed electronically,

that the requirements of Section 1606(g) have been and are

being complied with; and (3) for appliances for which there is

an energy efficiency, energy consumption, energy design,

water efficiency, water consumption, or water design standard

in Section 1605.1, 1605.2, or 1605.3, that the appliance

complies with the applicable standards.

(B) If the manufacturer is a corporation, partnership, or other

business entity, the declaration shall be signed by an

individual authorized to make the declaration and file the

Statement on behalf of the business entity, and the declaration

shall contain an affirmation that the individual signing is so

authorized.

follows:

|. Statements filed on paper.

a. If the statement is filed by a manufacturer, then the

manufacturer shall file a wet-signed paper declaration with

the Executive Director and the Executive Director shall keep

the declaration.

b. If the statement is filed by a third party under Section

1606(f), then the manufacturer shall file a wet-signed paper

declaration with the third party and the third party shal: keep

the declaration and shall provide it to the Executive Director

on request.

2. Statements filed electronically.

a. If the information is filed by a manufacturer, then either:

(i) the manufacturer shall file a wet-signed paper declaration

with the Executive Director and the Executive Director shall

keep the declaration;

(ii) if the Executive Director has approved the use of a

unique digital identifier for this purpose, the manufacturer

shall include in the statement a declaration digitally signed

57a

under Government Code 16.5 and Title 2, California Code of

Regulations, Division 7, Chapter 10 (beginning with Section

22000); or

(iii) the manufacturer shall execute a wet-signed paper

declaration, electronically scan and copy the declaration,

include the electronic copy of the declaration with the

statement filed with the Executive Director, and keep the wet-

signed paper declaration and provide it upon request to the

Commission; and the Commission shall keep the clectronic

copy of the declaration.

b. If the information is filed by a third party under Section

1606(f), then either:

(i) the manufacturer shall file a wet-signed paper declaration

with the third party and the third party shall keep the

declaration and shall provide it to the Executive Director on

request;

(ii) if the Executive Director has approved the use of a

unique digital identifier for this purpose, the manufacturer

shall execute a declaration digitally signed under Government

Code 16.5 and Title 2, California Code of Regulations,

Division 7, Chapter 10 (beginning with Section 22000), and

provide the electronic declaration to the third party; and the

third party shall keep a copy of the electronic declaration and

shall provide it to the Executive Director on request; or

(iii) the manufacturer shall execute a wet-signed paper

declaration, electronically scan and copy the declaration,

include both the wet-signed paper declaration and the

electronic copy of the declaration with the electronic

information provided to the third party; the third party shall

include the electronic copy with information filed with the

Executive Director, shall keep an electronic copy, and shall

provide ihe wet-signed paper declaration to the Executive

Director upon request; and the Executive Director shall keep

a copy of the electronic declaration.

58a

(b) Review of Statements by the Executive Director.

In this subsection, “manufacturer” also includes a third party

filing a statement under Section 1606(f).

(1) Determination. The Executive Director shall determine

whether a statement is complete, accurate, and in compliance

with all applicable provisions of this Article, and whether the

appliance for which the statement was submitted complies

with all applicable standards in Sections 1605.!, 1605.2, and

1605.3.

(2) Informing Manufacturer of Determination.

(A) The Executive Director shall inform the manufacturer of

the determination within these time limits:

through February 28, 2004: if the statement was filed elec-

tronically, within 30 calendar days after receipt by the Execu-

tive Director; if the statement was filed on paper, within 45

calendar days after receipt by the Executive Director, and

beginning March |, 2004: if the statement was filed electron-

ically, within 14 calendar days after receipt by the Executive

Director; i: the statement was filed on paper, within 21!

calend days after receipt by the Executive Director.

(B) The Executive Director's determination shall be sent to

the manufacturer clectronically if the statement was filed

electronically and cither electronically or on paper if the

statement was filed on paper.

(3) Nature of Determination.

(A) Statement is Incomplete. If the Executive Director

determines that a statement is not complete, or that the

statement does not contain enough information to determine

wwether it rs accurate or whether the appliance complies with

an applicable standard, the Executive Director shall return the

statement to the manufacturer with an explanation of its

defects and a request for any necessary additional

information. The manufacturer shall refile the statement with

59a

all information requested by the Executive Director and with

any other information it wants to file. The Executive Director

shall review the refiled statement according to the time limits

in Section 1606(b)(2).

(B) Statement is Inaccurate or Appliance Does Not Comply.

If the Executive Director determines that the statement is

inaccurate or that the appliance does not comply with an

applicable standard, the Executive Director shall reject the

Statement and retum it to the manufacturer with an

explanation of its defects. The manufacturer may submit

another statement for the appliance at any titne.

Complies. If the Executive Director determines that the

Statement is complete and accurate and that the appliance

complies with all applicable standards, the Executive Director

shall immediately include the appliance in the database and

shall so inform the manufacturer. (Section |608(a) states that

no appliance within the scope of these regulations may be

sold or offered for sale in California unless the appliance is in

the database.)

(1 Creation of Database. The Executive Director shall main-

tain a paper or electronic database. The database shall consist

of two parts:

(A) “Active Database.” The active database shall contain, at

least, information on all appliances that are currently in

production, for which complete and accurate statements have

been received pursuant to Section 1606(a), and that have not

been removed from the database pursuant to Sections

1606(d)-(h), or 1608(b)-(e).

(B) “Historical Database.” The historical database shall

contain, at least, information on all appliances that (1) are no

longer in production, for which complete and accurate

statements have been received pursuant to Section 1606(a) or

60a

(2) all appliances that have been removed from the active

database pursuant to Sections 1606(d)-(h), Section 1608(b),

or 1608(c).

(2) Status of Database. The database is the directory pub-

lished by the Commission within the meaning of Title 24,

California Code of Regulations, Part 6, Subchapter |. Section

100(g). The database in existence on the effective date of this

paragraph is the directory referred to in this paragraph, until

that existing database is modified by the Executive Director

pursuant to this Article.

(3) Annual Confirmation of Database Listings. At least

annually the Executive Director shall, by writing to the most

recent address filed pursuant to Section 1606(a)(2)(B),

request each manufacturer of an appliance listed in the

database to confirm the validity, or to correct in compliance

with this Article, all of the information in each of its database

listings, including but not limited to the appliance’s

compliance with any applicable standard adopted since the

most recent filing by the manufacturer. If, within 30 days

after the mailing, there is any appliance for which the

Executive Director has not received a repiy from the

manufacturer that confirms the validity of, or corrects, all of

the information in the database listing, the Executive Director

shall write via certified mail, to the same address. If within 30

days of the latter mailing there is no such reply, the appliance

shall be removed from the database and moved into the

Historical Database, and it may be presumed that the

appliance is no longer in production.

(d) Assessment of Completeness, Accuracy, and Compliance

of Manufacturer St2% nts. Notwithstanding any other

provision of these reg '#'1ons, the Executive Director may at

any time challenge ‘.. completeness, accuracy, and com-

pliance with the requirements of this Article, of any statement

or confirmation filed pursuant to this Section. If the statement

is incomplete or inaccurate, or if the Executive Director

determines that the statement otherwise fails to comply with

6la

any of the requirements of this Article, then he or she shall,

ten days after providing written notice by certified mail to the

person designated in Section 1606(a)(2)(B), remove the

appliance from the database described in Section 1606(c).

(e) Modified and Discontinued Appliances.

(1) If any of the characteristics listed in Table U are changed,

the manufacturer shall file a statement containing the

identifiers listed in Table U for the appliance and updated

information for all of the characteristics that have been

changed. Upon receipt of such a statement, the Executive

Director shall review the statement under Section 1606(b). If

the statement is complete, accurate, in compliance with all

applicable standards, the Executive Director shall modify the

database accordingly. )

(2) After any appliance has ceased being sold or offered for

sale in California the manufacturer shall file a statement so

stating and containing the Identifiers listed in Table U for the

appliance. Upon receipt of such a statement, the Executive

Director shall review the statement under Section |606(b). If

the statement is complete, accurate, and in compliance with

all applicable provisions of this Article, the Executive

Director shall move the appliance from the Active Database

to the Historical Database.

(f) Filing by Third Parties.

(1) A third party may file on behalf of a manufacturer the

information required by Sections 1606(a)(2), 1606(a)(3),

1606(a)(4), 1606(c)(3), or 1606(e) if-

(A) before or with its first submittal, and at least annually

thereafter, the third party submits to the Executive Director,

under penalty of perjury, persuasive evidence that:

1. the third party has read and understood all the provisions

of this Article, of federal law, and of all other documents

applicable to each appliance category in Subsections (a)-(t) of

62a

Section 1601 for which the third party will file information;

and

2. the th

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