Amicus Curiae Brief — Air Conditioning & Refrigeration Institute v. Energy Resources Conservation & Development Commission

tion of express preemption provisions of federal laws, nor the

court's application of those principles to the circumstances of

this case, presents any issue warranting this Court's review.

The petition for a writ of certiorari should be denied.

A. The Court Of Appeals’ Analysis Of The California Regula-

tions At Issue Here Does Not Warrant Further Review

1. Petitioners contend (Pet. 17-18) that Cal. Code Regs.

tit. 20, § 1606, which requires appliance manufacturers to

provide the CERDC with data concerning their products’

energy consumption, is preempted by 42 U.S.C. 6297(a)(1).

Under Section 6297(a)(1), a state regulation is preempted

“insofar as such State regulation provides at any time for the

disclosure of information with respect to any measure of en-

ergy consumption or water use of any covered product if,”

inter alia, “such State regulation requires disclosure of infor-

mation with respect to the energy use, energy efficiency, or

water use of any covered product other than information re-

quired under section 6294 of this title.” 42 U.S.C. 6297(a)Q1),

6297(a)(1B). The court of appeals correctly rejected petition-

ers’ preemption challenge to Cal. Code Regs. tit. 20, § 1606,

holding that the relevant state requirements do not mandate

the “disclosure of information” within the meaning of Section

6297(aX1). Pet. App. 12a. Although the phrase “disclosure of

information” might in some contexts encompass the submis-

sion of data to a state regulatory agency, abundant evidence

in the text, structure, and history of the specific federal enact-

ments at issue here indicates that the phrase has a more lim-

ited meaning in Section 6297(a)(1).

a. Section 6297(a) itself is entitled “Preemption of testing

and labeling requirements.” 42 U.S.C. 6297(a). “(T]he title of

a statute or section can aid in resolving an ambiguity in the

legislation’s text,” 7NS v. National Ctr. for Immigrants’

Rights, Luc., 302 U.S. 183, 189 (1991), and the reference to

7

“labeling requirements” in Section 6297(a)'s title suggests

that the term “disclosure” in the same Section is limited to the

provision of information to potential purchasers at the point

of sale. That inference is reinforced by the fact that the stat-

ute preempts state requirements for the “disclosure” of infor-

mation “other than information required under section 6294.”

42 U.S.C. 6297\a)A1\(B). Section 6294 of Title 42 is entitled

“Labeling” and directs the FTC to promulgate rules govern-

ing the information that must be placed on appliance labels.

Section 6294, moreover, uses the words “discloses” and “dis-

closure” in describing the required contents of product labels

under the FTC's rules. See 42 U.S.C. 6294(c)(1) and (4).

By contrast, the EPCA provisions that mandate the sub-

mission of information to the FTC or DOE do not use the

word “disclosure” or any variant thereof. See Pet. App. 7a-

Sa. Rather, those provisions direct manufacturers under

specified circumstances to “notify the Sécretary or the Com-

mission” of models in production to which the agencies’ rules

apply, 42 U.S.C. 6296(b)\(1); to “provide” certain data upon

request, 42 U.S.C. 6296(b)(2); and to “submit information or

reports to the Secretary,” 42 U.S.C. 6296(d). Because Section

6297(a)(1)(B) cross-references Section 6294, and because the

terms “disclose” and “disclosure” are used in Section 6294 but

not in Section 6296, Section 6297(a)(1)’s reference to state

regulations governing “disclosure of information” is most

naturally read as limited to state laws that are of the same

character as Section 6294—.¢., state labeling directives. See

Pet. App. 7a; compare Commissioner v. Lundy, 516 US. 235,

250 (1996) (“The interrelationship and close proximity of these

provisions of the statute presents a classic case for application

of the normal rule of statutory construction that identical

words used in different parts of the same act are intended to

have the same meaning.”) (citations and internal quotation

marks omitted).

8

b. Although the EPCA reflects Congress’s determination

that energy conservation is a matter of national concern, the

statute also contemplates that States will play an important

role in this area. See 42 U.S.C. 6321(a)(1) and (2) (congressio-

nal findings). In particular, States are encouraged to develop

energy-conservation plans, see 42 U.S.C. 6322, which may

include “programs to promote energy efficiency in residential

housing” through such measures as “the adoption of incen-

tives for builders, utilities, and mortgage lenders to build,

service, or finance energy efficient housing,” 42 U.S.C.

6322(d)(8), 6322(d)(8)(B). States and localities are specifically

authorized to adopt building codes that “permit| | a builder to

meet an energy consumption or conservation objective for a

building by selecting items whose combined energy efficien-

cies meet the objective.” 42 U.S.C. 6297(f)(3)(A); see H.R.

Rep. No. 11, 100th Cong., Ist Sess. 39 (1987) (explaining that

Section 6297(f) “allows States flexibility to implement per-

formance-based building code approaches” that “authorize

builders to adjust or trade off the efficiencies of the various

building components so long as an energy goal is met”). As a

practical matter, effective implementation of such building-

code provisions would be substantially impeded if States could

not direct appliance manufacturers to submit energy-effi-

ciency data beyond the information required by Section 6294

and the FTC’s rules to be included on a product’s label.’ Sec-

' Respondents’ brief in the court of appeals explained that, under

California's building code,

~——— builders can get “extra credit” for installing equipment of more-than-

minimum specifications (e.g., a highly efficient air conditioner), and

then “trade off” the extra credit by using more energy in another

part of the building (e.g., reducing the amount of insulation in the

ceiling or increasing the number or size of windows) in a way that

reduces costs or makes the building more attractive to buyers. If

states were unable to require manufacturers to submit relevant data,

Y

tion 6297(a)(1) should not be construed in such a manner that

it hinders state efforts to implement energy-conservation

programs that are affirmatively encouraged by other provi-

sions of the EPCA.

¢c. The court of appeals’ construction of the EPCA term

“disclosure” is also consistent with the longstanding position

of the FTC. In comments submitted during an FTC rule-

making conducted in 1989, the State of New York urged the

FTC to require manufacturers of covered lamp-ballast prod-

ucts to submit energy usage data to the Commission. 54 Fed.

Reg. 28,032. As one reason for that request, the State ex-

pressed concern that the FTC's failure to require submission

of those data could preclude the State from mandating compa-

rable submissions. The State explained that 42 U.S.C.

6297(a)(1)(B) might be construed to “preempt state regula-

tions that require the reporting of information concerning the

energy use or efficiency of covered products other than infor-

mation required to be reported pursuant to § 305.8 of the Com-

mission’s Appliance Labeling Rule [16 C.F.R. 305.8).” 54 Fed.

Reg. at 28,032.

In response, the FTC expressed the view that

the most logical and reasonable reading of [42 U.S.C.

6297(a)(1)(B)| is that it does not preempt the states from

requiring ballast manufacturers to report energy usage

and efficiency information. This section of EPCA applies

to the preemption of state testing and labeling require-

ments. Consequently, when this section states that it pre-

empts state disclosure regulations that differ from the

Rule’s disclosure requirements, it is referring to testing

it would be very difficult to make the calculations necessary to

implement the trade-offs.

Resp. CLA. Br. 30-51 (citations omitted).

10

and disclosures on a covered product labei, not to

information-reporting requirements.

Id. at 28,0233. As the court of appeals explained, the reading

of 42 U.S.C. 6297(a)(1)(B) espoused in the 1989 preamble is

also consistent with the text of the FTC's current EPCA reg-

ulations, which “use ‘disclosure’ to refer to consumer-directed

labeling and ‘submission’ to refer to data-submittal to a gov-

ernment entity.” Pet. App. 8a n.5.'

d. The history of 42 U.S.C. 6297(a)(1) confirms that the

provision in its current form does not restrict the States’ au-

thority to require manufacturers of covered appliances to

submit energy-related data to state regulatory bodies. As

originaliy enacted in 1975, Section 6297(a)(1) provided that

any state regulation requiring “the disclosure of information

with respect to any measure of energy consumption of any

covered product” was preempted “if there is a rule under

section 6294 of this title |i.e., an FTC labeling rule] applicable

to such covered product and such State regulation requires

disclosure of information other than information disclosed in

' The preemption theory hypothesized by the State of New York in its

comments during the 1980 FTC rulemaking was significantly narrower than

petitioners’ own theory. New York expressed concern that States might be

preempted from requiring lamp-ballast manufacturers to report energy -

efficiency data beyond the information that manufacturers were required

to submit te the FTC pursuant to 42 U.S.C. 6296 and 16 C.F_R. 305.8, See

+1 Fed. Reg. at 28,032. Under petitioners’ reading of the statute, by con-

trast, States could not require the submission of energy-efficiency informa-

tion beyond what is required to be included on the product /abe! under 412

U.S.C. 6294 and 16. C.F.R. 305.11. During the 1989 rulemaking, the FTC

stated that, because the Commission was amending 16 C.F R. 305.8 to

require ballast manufacturers to submit data to the FTC, the preemption

issue raised by New York was “largely moot.” 34 Fed. Reg. at 28,033. If

petitioners’ preemption theory were correct, however, the requirement that

such data be previded to the FTC would not eliminate the barrier to a com-

parable state data-submission requirement.

ll

accordance with such rule under section 6294 of this title.” 42

U.S.C. 6297(a)(1), 6297(a)(1)(B) (1976) (emphasis added). The

italicized language strongly indicates that the preemptive

effect of Section 6297(a)(1) in its original form was limited to

state labeling requirements, since there would have been no

apparent reason for Congress to make the preemption of state

data-submission laws contingent on the FTC’s promulgation

of a /abeling rule for a particular covered product.

In 1987, the NAECA amended 42 U.S.C. 6297(a)(1) in a

manner that raises the question, discussed at pp. 12-14¢ infra,

whether that provision in its current form makes the preemp-

tion of state law requiring “disclosure” of specified informa;

Lion contingent on the existence of a federal labeling require-

ment. See 42 U.S.C. 6297(a)(1) (1988). That amendment may

affect the preemption analysis when a State seeks to establish

labeling requirements for a covered product as to which there

is no federal regulation imposing labeling requirements. See

pp. 12-14, infra. But whatever the correct answer to that

question, neither the text nor the history of the NAECA sug-

gests that Congress intended to alter the meaning of the pre-

existing statutory term “disclosure,” or to expand the pre-

emptive scope of Section 6297(a)(1) to encompass state data-

submission as well as labeling requirements. To the contrary,

the Senate Report accompanying the NAECA stated that the

amended version of Section 6297(a)(1) “essentially restates

existing law, and provides that the Act supersedes State and

local regulations regarding testing and /abeling in certain

cases.” S. Rep. No. 6, 100th Cong., Ist Sess. 9 (1987) (empha-

sis added).

2. -Petitioners contend (Pet. 17-19) that 42 U.S.C.

6297(a)(1) preempts Cal. Code Regs. tit. 20, § 1607(b) and (c),

“which require appliances to be labeled with the manufac-

turer's name, brand name, or trademark; the appliance’s

model number; and {the appliance’s| date of manufacture.”

12

Pet. App. 13a; see id. at 13a nn. 7 & 8. That argument lacks

merit. The preemptive scope of Section 6297(a)(1) is limited

to state regulations that “provide|| * * * for the disclosure

of information with respect to any measure of energy con-

sumption or water use of any covered product.” 42 U.S.C.

6297(a)(1) (emphasis added). The italicized language does not

encompass the routine product information required by Cal.

Code Regs. tit. 20, § 1607(b) and (c), which has no inherent

connection to a measure of “energy consumption” or “water

use”—terms that are themselves defined by the EPCA, as the

court of appeals explained. See Pet. App. 14a-l5a & n.9.

Petitioners’ preemption argument is based on the fact that

the markings required by Cal. Code Regs. tit. 20, § 1607(b)

and (c) are used in part to facilitate the implementation of

energy-conservation programs adopted by the State of Cali-

fornia. See Pet. 18. The language of 42 U.S.C. 6297(a)(1),

however, does not support petitioners’ view that the preemp-

tion analysis turns on the nature or purposes of the underly-

ing state regulatory scheme. In Section 6297(a)(1), the phrase

“with respect to any measure of energy consumption or water

use of any covered product” does not modify “State regula-

tion.” Rather, the phrase modifies “information.” The word-

ing of Section 6297(a)(1) thus indicates that its preemptive

effect depends upon the nature of the information required to

be disclosed, not on the purposes for which disclosure is re-

quired. Standing alone, a product marking that identifies the

manufacturer, model number, and date of manufacture of a

covered appliance communicates nothing about the amount of

energy or water that will be consumed in the product’s opera-

tion. The data mandated by Cal. Code Regs. tit. 20, § 1607(b)

and (c) therefore do not constitute “information with respect

to any measure of energy consumption or water use.”

3. The final state regulatory provision at issue here re-

quires that energy-performance information be marked on

13

certain industrial and commercial appliances for which no

federal labeling requirements exist. See Cal. Code Regs. tit.

20, § 1607(d)(2); Pet. App. 17a. The court of appeals held that

those state regulatory provisions are not preempted because,

there being no federal labeling requirement in effect for those

products, the California regulatory scheme “does not require

the disclosure of information that is ‘other than information

required’ under federal law.” /d. at 16a. Petitioners chal-

lenge that holding, contending (Pet. 19) that because the fed-

eral labeling regulations do not vet require any information

concerning those appliances to be disclosed, the state require-

ment necessarily mandates a “disclosure of information” that

is “other than information required” by the EPCA. See Pet.

App. 22a (Noonan, J., dissenting) (“Where there are no fed-

eral regulations on the subject because the DOE has not pro-

mulgated any regulations, then any state regulations are

‘other than’ those federally required.”). Moreover, Congress's

deletion in 1987 of statutory language that had unambiguously

limited Section 6297(a)(1)'’s preemptive effect to situations in

which a federal labeling rule existed (see pp. 10-11, supra)

might suggest that no such limitation was intended.

There is some force to those points. On the other hand,

Section 6297(a)(1)(B)'s reference to information “other than

information required under” federal law might be read as

making the existence of an applicable federal regulation under

which disclosure of information in labeling js required a pre-

condition for preemption to be triggered for the particular

product, and as manifesting Congress's intent that state law

will be preempted only when such regulations exist. In any

event, this aspect of the Ninth Circuit's decision does not war-

rant further review. Petitioners identify no other judicial

decision that has construed 42 U.S.C. 6297(a)(1), let alone a

decision that has applied Section 6297(a)(1) to appliances for

which no federal labeiing rule exists. And because petitioners

14

identify no other State that has adopted regulations compara-

ble to Cal. Code Regs. tit. 20, § 1607(d)(2), the court of ap-

peals’ ruling does not oblige petitioners to comply with incon-

sistent marking requirements in different parts of the coun-

try. There is consequently no sound reason to regard the

narrow question presented here as an issue of substantial

legal or practical importance.

Until the EPCA’s amendment by the NAECA in 1987, the

preemptive effect of Section 6297(a)(1) was unambiguously

limited to covered products for which a federal labeling rule

existed. See pp. 10-11, 13, supra. Whatever the impact of the

1987 amendment on the ultimate preemption question, there

is no suggestion in the legislative history that the amendment

responded to significant practical concerns. To the contrary,

the 1987 Senate Report blandly described the amended ver-

sion of Section 6297(a)(1) as “essentially restat{ing| existing

law.” S. Rep. No. 6, supra, at 9; see p. 11, supra. Even as-

suming, arguendo, that the actual effect (whether intended or

unintended) of the NAECA amendments was to expand Sec-

tion 6297(a)(1)’s preemptive scope to encompass appliances

for which no federal labeling rule has been promulgated, the

background of that modification reinforces the conclusion that

the application of Cal. Code Regs. tit. 20, § 1607(d)(2) does not

present a question of such substantial importance as to merit

the Court’s review.

B. The Court Of Appeals’ Decision Is Consistent With Engine

Manufacturers Association vy. South Coast Air Quality Man-

agement District, 541 U.S. 246 (2004)

Contrary to petitioners’ contention (Pet. 11-14), the court

of appeals’ ruling in this case does not conflict with this

Court’s recent decision in Engine Manufacturers Ass'n v.

South Coast Air Quality Management District, 541 U.S. 246

(2004) (EMA). The federal statute that was given preemptive

15

effect in EMA, and the state-law requirements that were

found to be preempted, are wholly distinct from the federal

and state laws at issue here. Far from being “indistinguish-

able” (Pet. 13), the two cases have little in common beyond the

facts that both arose in the Ninth Circuit and that both in-

volved the construction of express preemption provisions.

Petitioners contend (Pet. 11, 13) that the manner in which

the court of appeals applied a presumption against preemp-

tion reflected an “interpretive methodology” that this Court

in EMA rejected. This Court in EMA, however, did not either

invoke or reject a presumption against preemption or em-

brace any particular articulation of such a presumption; it

simply held that, in light of the clarity of the relevant statu-

tory text, the determination whether such a presumption ap-

plied would “demonstrably make{ | no difference to resolution

of the principal question” in the case. 541 U.S. at 256. Nor

was the court of appeals’ methodology in this case inconsis-

tent with EMA in other respects. To the contrary, the court

below carefully analyzed the relevant EPCA language, noting,

inter alia, that the phrase “disclosure of information” should

be given the same meaning in different parts of the statute.

Pet. App. 7a-8a. The Ninth Circuit’s reliance on that interpre-

tive principle was fully consistent with EMA, in which this

Court observed that the meaning of the term “standard” in

the preemption provision of the Clean Air Act (CAA) was

elucidated by “Congress's use of the term in another portion

of the CAA.” 541 U.S. at 254.

C. The Court Of Appeals’ Application Of A Presumption

Against Preemption Of State Law Raises No Issue That In-

dependently Warrants This Court's Review

Petitioners urge this Court to grant review to clarify the

circumstances under which courts should apply a presumption

16

against preemption of state law. See Pet. 14-21. That claim

is misconceived,

1. As petitioners recognize, this Court's decisions make

clear that a presumption against preemption (i) applies in “a

field which the States have traditionally occupied,” Pet. 14

(quoting Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S.

341, 347 (2001)), and (ii) does not apply “when the State regu-

lates in an area where there has been a history of significant

federal presence,” Pet. 15 (quoting United States v. Locke,

529 U.S. 89, 108 (2000)). Thus, despite petitioners’ extrava-

gant assertion (Reply Br. 3 n.1) that the question presented

here “potentially governs the preemptive effect of every fed-

eral statute,” the ultimate thrust of petitioners’ argument is

much more modest. Petitioners’ core contentian is that re-

view is warranted to consider the applicability of a presump-

tion against preemption when Congress legislates in a field

that has not traditionally been regulated either by the federal

government or by the States.

In the first place, it is not clear that abstract differences

in the formulation or application of a presumption against

preemption would justify plenary review in the absence of a

concrete split in authority on the preemptive force of a partic-

ular statute. This Court has generally made its statements

about a presumption for or against preemption—much as it

has made statements about other principles of statutory

construction—in the context of cases that independently mer-

ited the Court’s review. When the lower courts have dis-

agreed about the preemptive force of 4 particular federal stat-

ute, that disagreement may provide a basis for clarifying the

relevant presumption in a concrete context in which courts

have come to differing conclusions. But any difference be-

tween the formulation of the presumption in one setting and

its articulation in a discrete statutory context does not merit

the Court’s review.

17

2. Even assuming, arguendo, that the EPCA operates in

a field that has traditionally been free from both state and

federal regulation (compare Pet. 15 with Br. in Opp. 7), the

question of what presumption applies in that context does not

merit this Court's review. A number of the Court’s decisions

have treated a tradition of state regulation in the relevant

field as a factor warranting a presumption against preemp-

tion. See, e.g., Medtronic, Ince. v. Lohr, 518 UsS. 470, 485

(1996). The Court has not held, however, that the absence of

such a tradition would necessarily render such a presumption

inappropriate.

Since issuing its decision in Medtronic, this Court has

identified two related settings in which there is no presump-

tion against preemption. The first consists of areas, such as

the regulation of national and international maritime com-

merce, “where there has heen a history of significant federal

presence.” Locke, 529 U.S. at 108. The second involves state

attempts to police the “relationship between a federal agency

and the entity it regulates.” Buckman, 531 U.S. at 347 (find-

ing state-law claim for fraud on the Food and Drug Adminis-

tration to be preempted). The instant case does not involve

either of those situations.

This Court’s refusal to apply a presumption against pre-

emption when States regulate matters that are “inherently

federal in character” (Buckman, 531 U.S. at 347) does not

necessarily suggest that there is no such presumption in fields

lacking any tradition of state or federal regulation. Most sig-

nificantly, petitioners identify o case in which the Court has

declined to apply a presumption against preemption solely on

the ground that the relevant sphere of conduct had not tradi-

tionally been regulated by the States. Absent any decision by

this Court actually adopting the rule that petitioners advo-

cate, there is no basis for petitioners’ contention that the

18

court of appeals’ reliance on a presumption against preemp-

tion conflicts with the Court's precedents.

3. Petitioners’ claim of a cireuit conflict is mistaken for

essentially the same reason. The court of appeals decisions on

which petitioners rely fall into two basic categories. Some of

those decisions hold, in accordance with this Court's decision

in Locke, that a presumption against preemption does not

apply in an area where there has been a history of significant

federal presence.’ Because petitioners do not contend that

the instant case implicates a longstanding tradition of federal

regulation, those decisions are inapposite.

Other decisions cited by petitioners simply apply a pre-

sumption against preemption in areas traditionally regulated

by the States.” Contrary to petitioners’ suggestions (Pet. 16;

See (1S, lune. v. Flores-Galarza, 318 F Ad 324, 336 (st Cir. 2008) (“No

presumption against preemption is appropriate in this case because of

Congress's significant—and undisputed—presence in the field of air trans-

portation.”); Wachovia Bank, N_A. v. Burke, 14 F.3d 305, 314 (2d Cir,

2005) (declining to apply a presumption against preemption in case involv-

ing federally chartered banks on the ground that regulation of such banks

has historically been the province of the federal government), petition for

cert. pending, No, 05-431 (filed Sept. 30, 2005); Forest Park Il vy. Hadley,

3365 F 3d 724, 728-730, 732 (8th Cir. 2005) (detailing the decades-long history

of federal affordable-housing loans and declining to apply a presumption

against preemption to a state law that purportedly “regulate|d| or res-

trictied| the actions of the federal government under its own federal pro-

gram” with respect to such a loan).

" See Cliff v. Payco General Am. Credits, Lue. 3608 F Ad 1118, 1125 11th

Cir. 2004) (applying a presumption against preemption to a state law invelv-

ing consumer protection, “a field traditionally regulated by the states”);

Massachusetts v. United States Dept of Transp., 9 F 3d 890, 894 (D.C. Cir.

1) (applying a presumption against preemption to a state law regulating

“how waste may be picked up or dropped off in a state.” which “must be

thought an area of traditional state control”); Bronco Wine Co. ¥. Jolly, %

P Sd 422, 429 (Cal. 2004) (“After extensively reviewing the history of state

regulation of beverage and wine labels prior to Congress's adoption of the

FAA Act in 1995—a history that reveals substantial state involvement and

19

Reply Br. 4), the appellate courts’ consistent recognition that

a tradition of state regulation s#pports application of a pre-

sumption against preemption does not logically imply that

such a tradition is a vecessary condition for applying such a

presumption.’ Because petitioners identify no case in which

a court of appeals has declined to apply a presumption against

preemption based solely on the absence of a longstanding

state regulatory presence in the relevant field, petitioners’

claim of a circuit conflict is unfounded.

Moreover, as explained above (see pp. 6-14, supra), the

court of appeals’ decision concerning the preemptive scope of

Section 6297(a)(1) does not warrant review. This case there-

fore would not in any event be an appropriate vehicle for con-

sidering any variation in the formulation or application of a

presumption against preemption in different settings.

very little federal regulation—we conclude that a presumption against pre

emption does indeed apoly in this case.”), cert. denied, +44 US, 922 (2005),

In (PS, the First Cireuit stated in dictum that a presumption against

preemption “only arises * * * if Congress legislates in a field traditionally

necupied by the states.” 318 F.3d at 336. The First Cireuit further ex

plained, however, that “[njo presumption against preemption is appropriate

in this case because of Congress'y significant—and undisputed— presence

in the field of air transportation.” /hid. That rationale ts fully consistent

with the cotirt of appeals’ decision in the instant case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

Peter D. KeisLer

Assistant Attorney General

EDWIN 8S. KNEEDLER

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

JONATHAN LEVY

Attorney

MAY 2006

No. 05-331

Iu the

Supreme Court of the United States

AIR CONDITIONING & REFRIGERATION INSTITUTE ef al,

Petitioners,

Vv.

ENERGY RESOURCES CONSERVATION AND

DEVELOPMENT COMMISSION et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR ALLIANCE OF AUTOMOBILE

MANUFACTURERS, AMERICAN PETROLEUM

INSTITUTE, ASSOCIATION OF INTERNATIONAL

AUTOMOBILE MANUFACTURERS, ENGINE

MANUFACTURERS ASSOCIATION, NATIONAL

ASSOCIATION OF MANUFACTURERS, AND THE

CHAMBER OF COMMERCE OF THE UNITED

STATES OF AMERICA AS AMICI CURIAE IN

SUPPORT OF THE PETITION FOR CERTIORARI

KENNETH W. STARR

Counsel of Record

STUART A.C. DRAKE

ASHLEY C. PARRISH

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

Attorneys for the Amici Curiae

October 14, 2005

ee Se cee TN I RL RN CR OI RS RN

WILSON-EPES Prinvina Co., Inc. — (202) 789-0096 — WasnincTow. D.C. 20001

Additional counsel:

JOHN WHATLEY HARRY M. NG

’ General Counsel General Counsel

JULIE C. BECKER JANICE K. RABURN

Assistant General Counsel Senior Attorney

ALLIANCE OF AUTOMOBILE AMERICAN PETROLEUM

MANUFACTURERS INSTITUTE

1401 Eye Street, N.W. 1220 L Street, N.W.

Washington, D.C. 20005 Washington, D.C. 20005

(202) 326-5511 (202) 682-8253

ELLEN J. GLEBERMAN RoBIN S. CONRAD

_ Vice President & General AMAR D. SARWAL

Counsel NATIONAL CHAMBER

ASSOCIATION OF INTERNATIONAL _—_ LITIGATION CENTER, INC.

AUTOMOBILE MANUFACTURERS 1615 H. Street N.W.

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Arlington, VA 2220!

(703) 525-7788

JAN S. AMUNDSON TIMOTHY A. FRENCH

Senior Vice President & General NEAL, GERBER &

Counsel EISENBERG LLP

QUENTIN RIEGEL Two N. LaSalle Street

Vice President, Litigation & Suite 2200

Deputy General Counsel Chicago, IL 60602

NATIONAL ASSOCIATION OF (312) 269-5670

MANUFACTURERS

1331 Pennsylvania Ave, N.W.

Washington, D.C. 20004

(202) 637-3000

QUESTION PRESENTED

The Energy Policy and Conservation Act of 1975, as

amended, sets energy and water-use efficiency standards for

appliances, and expressly preempts “any State regulation

(that] provides at any time for the disclosure of information

with respect to any measure of energy consumption or water

use” that differ from federal requirements. 42 U.S.C.

§§ 6297, 6316. Applying an unprecedented form of the

presumption against preemption, the Ninth Circuit held in

this case that California regulations requiring detailed

energy-information disclosures by manufacturers to state

regulators are not preempted because such disclosures are not

“directed to consumers at point of sale or use.”

The question presented is whether the Ninth Circuit

correctly applied the presumption against preemption in

letting stand California’s strategic attempt to nullify

Congress’s express preemption of _ state-disclosure

requirements.

TABLE OF CONTENTS

Page

QUESTION PRESENTED o2cc.sccccsccccccccocicscssssesvevesesssseveenseeeeeve i

TAMBLEE OP AMSTORORET IG csciscciccccccccecseecrccrcocicensonecoscconcnsovoron i

INTEREST OF AMICI CURIAE .cesvsscssvsesessesssscsesvssssvesssessesensesien

RS a ie Re ee 3

REASONS FOR GRANTING THE WRIT .......sessssvcesevesssssssevsoe 5

A. The Decision Below Conflicts With This

I 5

B. There Is Confusion Among The Courts Of

Appeals Over When The Presumption Against

Preemption Should Apply. .......::<-coccsrsesssosesssesessooeees 9

Cc. The Question Presented Is A Recurring One

Of Exceptional Public Importance. ....................000. 11

RG ANID crctaccsseierdctnciapiniviclinsdttaninicisiansineniecaninioindenecictatn 17

TABLE OF AUTHORITIES ;

Page(s) |

Cases

BankWest, Inc. v. Baker,

411 F.3d 1289 (11th Cir, 2005S)...........:cccccccerseereees 10

Bates v. Dow Agrosciences LLC,

le is TS CD tcosecertiiiceviciviamesemessvisvenestedic’ 8

Buckman Co. v. Plaintiffs Legal Committee, ‘

Ps PD ED cacencncvencnateintsnedeestsecteanesobeasie 8, 16

Cippolone v. Liggett Group, Inc.,

UREN Ms UNE UU cccuiciectinsencedeticneninenseninesattiiepehodpipi 8

CSX Transp., Inc. v. Easterwood,

aes Pe CPST peecccisnctnieicpccienrpienanineiesceniiinls 6,7

Donovan v. Dewey,

I re MU IPO P sanctcincscthaccecibpsenbstteetobenensescsiiets 13 |

Engine Mfrs. Ass'n v.

South Coast Air Quality Mgmt. Dist.,

EE Sees PE PED ccnnidhcloneentocsotelnetesseosoiieness 5,7, 14

English v. General Elec. Co.,

ee Fe eoprcetinnisoriditincnaiccscsiecgnintpielaniidens 12

Flagg v. Yonkers Sav. & Loan Ass'n,

396 F.3d 178 (2d Cir. 2005)............ setainidednieidnvchiits 9

- Forest Park Il v. Hadley,

Fae Fe FAO Goes Ge BOE Pctcercoccscccevescescansocssoviees a

Frank Bros., Inc. v. Wisconsin Dep't of Transp.,

409 F.3d 880 (7th Cir. 2005)......cccccccoresrrsoererersoeees 10

Free v. Bland,

ee ey CP CURD seccindtincctciacvontdinsitheinsebadsanittesien 7

Gadda v. Ashcroft,

377 F.3d 934 (9th Cir. 2004) .0.....ccccccececescereseeseenees 1}

Gade v. Nat'l Solid Wastes Mgmt. Ass'n,

a TI nis enticrnenstihcnciitileninainiaandinsilitiaian 7

Gibbons v. Ogden,

Er 7

Lorillard Tobacco Co. vy. Reilly,

ie ef, earners 14

Lynbrook Farms v. Smithkiine Beecham Corp.,

79 F.3d 620 (7th Cir. 1996)......<.cccecseveseecersrseserserees 10

Metropolitan Ins. Co. v. Pettit,

164 F.3d 857 (4th Cir. 1998) .000..cccccccceeccceeeeeeeeees 10

Natural Res. Def. Council, Inc. v. Harrington,

768 F.2d 1355 (D.C. Cir, 1985) .........cccccccccescereeeeeees 8

Norfolk S. Ry. Co. v. Shanklin,

RR ees 14

Public Util. Dist. No. 1 of Grays

Harbor Cty. Wash. v. IDACORP. Inc.,

379 F.3d 641 (Sth Cir. 2004) 000... cccceccccceceeeceeees 1]

Rodriguez v. United States,

Oe RS SE BPS 16

Saul v. United States,

928 F.2d 829 (Sth Cir. 1991) ...0......ccccecccccceesceeeneees 10

Sprietsma v. Mercury Marine,

gE NRE EY rene 6

United Parcel Service, Inc. v. Flores-Galarza,

so ek RE 9,10

United States v. Locke,

RE 7

iv

Walker v. Armco Steel Corp.,

GAG EE, Fee Ce crcteerctencernnittgcinencn 14

Wisconsin Dep't of Revenue v.

William Wrigley, Jr., Co.,

Fe eee Be cncvtirnnencnnininnaitieninapemminminies 6

Statutes and Rules

OF te Se CeO rcttciesertnenseennsvecitnenicnstticeprinicanntesonadion 14

y Ie Toe | vasieliveeniidgantlaatalegeiaaneadi 15

GB ULB, Bee ccetecttristetentinvinnintiasitniattinnictatmenen 15

ee ae Oe I cccenescensiicitaniattninttiininieidatinedishpialets 6

ae Be cererececnsntcinntnraniiovintininnsieisictintintistimannins 6

42 U.S.C. § 6297.......... siechuibebipemedtaneiaaetseiadieieaniiing 3, 6,7

re Ie cxcititcrnincintnintinnetasinnticinnintimniciduiagaiiens 3

pf eS FR eres anne wee 15

GO GB. © eee ceterttterrttitinmemnitiiiininniene 15

gk a es ee 15

I es I OR ceincieiitiienigitctecesiteitieeaienstiiecabailipcnlintiniatind 15

Cal. Code Regs. Tit. 20 (2005).............ccccccccceeseseeeereees 3,4

Other Authorities

Carrier, Michael K..,

Federal Preemption of Common Law Tort

Awards By The Federal Food, Drug, and

Cosmetic Act,

51 Foop & Druc LJ. 509 (1996)... ee. 12

Dinh, Viet D,

Reassessing the Law of Preemption,

Ee ne 14

Vv

H.R. 1684, 109th Cong, (2005) 0.00.0... :cccccceeseeeseeeerenes 13

H.R. 2172, 107th Cong. (2001)........... sihiisaiteasitdeiasiul 13

| 3,12

Nelson, Caleb,

Preemption, 86 VA. L. REV. 225 (2000) .........:0000 14

SB. 442, ISSR Came, CISGG) ecccccvsscccsscsscesscsrssvervsaeiesonens 13

Tb ig RE ae ER 7

INTEREST OF AMICI CURIAE'

Amici and their members represent an array of industries

that manufacture and market products for sale in the global

marketplace. Because amici and their members are regulated

under the Energy Policy and Conservation Act of 1975

(“EPCA”), Pub. L. No. 94-163 (1975), they have a direct

interest in the issues raised here concerning the proper scope

and effect of the EPCA’s express preemption provisions.

They also have a general interest in the interpretation and

application of federal statutes establishing uniform regulation

and in determining the proper relationship of those statutes to

state laws and regulations applied to the same matters. Amici

believe that California's burdensome disclosure requirements

are squarely inconsistent with the federal scheme established

by Congress providing for uniform, national regulation of

energy-consuming products sold nationwide. They also

believe that the Ninth Circuit's decision misapplies the

presumption against preemption, is not faithful to the plain

language of the EPCA’s express preemption provisions, and

is directly in conflict with this Court's settled precedents.

ALLIANCE OF AUTOMOBILE MANUFACTURERS. The

Alliance of Automobile Manufacturers, Inc. is a non-profit

trade association comprised of nine car and light truck

manufacturers. The Alliance has mo parent company,

subsidiaries, or affiliates that have issued shares to the public.

AMERICAN PETROLEUM INSTITUTE. The American

Petroleum Institution is a non-profit national trade

association for the U.S. oil and natural gas industry. API's

1 Both petitioners and respondents have consented to the filing of this

brief in letters that are on file in the Clerk's office. Pursuant to S. Ct. R.

37.6, amici state that no counsel for a party authored any part of this

brief, and no person or entity other than amici, their members, or their

counsel made a monetary contribution to the preparation or submussion of

this brief.

2

more than 400 member companies are engaged in al) aspects

of the oi] and natural gas industry, including exploration,

production, transportation, refining, distribution and

marketing. API has no parent company, subsidiaries, or

affiliates that have issued shares to the public.

ASSOCIATION OF INTERNATIONAL AUTOMOBILE

MANUFACTURERS. The Association of International

Automobile Manufacturers is a non-profit trade association

representing international manufacturers and distributors of

motor vehicles. ALAM has no parent company, subsidiaries,

or affiliates that have issued shares to the public.

CHAMBER OF COMMERCE OF THE UNITED STATES OF

AMERICA. The Chamber of Commerce is the world’s largest

business federation, representing an underlying membership

of more than three million businesses, state and local

chambers of commerce, and professional organizations.

Chamber members operate in every sector of the economy

and transact business throughout the United States. The

Chamber has participated as amicus curiae in several

hundred cases before this Court, including numerous cases

addressing the subject of federal preemption.

ENGINE MANUFACTURERS ASSOCIATION. The Engine

Manufacturers Association is a not-for-profit trade

association that represents the leading manufacturers of

internal combustion engines used in most medium-duty and

heavy-duty vehicles, as well as in marine vessels,

locomotives, and lawn, garden and utility equipment. EMA

has no corporate parents, subsidiaries, or affiliates, and no

publicly traded company has a ten percent or greater

ownership interest in EMA.

NATIONAL ASSOCIATION OF MANUFACTURERS. The

National Association of Manufacturers is the nation’s largest

industrial trade association, representing small and large

manufacturers in every industrial sector and in all SO States.

NAM’s mission is to enhance the competitiveness of

3

manufacturers by shaping a legislative and regulatory

environment conducive to U.S. economic growth and to

increase understanding among policymakers, the media, and

the general public about the vital role of manufacturing to

America’s economic future and living standards. NAM has

no parent company, subsidiaries, or affiliates that have issued

shares to the public.

a

INTRODUCTION

Congress has enacted comprehensive federal legislation

governing energy efficiency standards for appliances and

industrial equipment. In so doing, the Article | branch has

expressed its specific intent to displace state law. The

Energy Policy and Conservation Act, as amended, contains

express preemption provisions that preempt “any State

regulation [that] ... provides at any time for the disclosure of

information with respect to amy measure of energy

consumption or water use” that differ from federal

requirements. 42 U.S.C. § 6297(a)(1) (emphasis added), see

id. §6316. The preemption provisions are broadly framed,

for Congress recognized that a successful national energy

efficiency policy required that it “protect the appliance

industry from having to comply with a patchwork of

numerous conflicting State requirements,” H.R. Rep. No.

100-11, at 24, and “bring a degree of regulatory ... certainty

to the business planning of the appliance industry.” /d. at 28. —

California nonetheless seeks to nullify Congress’s

express preemption provisions and impose its own set of

energy efficiency disclosure requirements on American

businesses. Specifically, California has promulgated

regulations that ban federally covered appliances from sale in

the State unless manufacturers disclose extensive, detailed

energy-efficiency information to California regulators. See

Cal. Code Regs. Tit. 20 §§ 1606-1608 (2005). Likewise, the

regulations mandate the inclusion of labels and other

markings on appliances sold in California not required under

4

federal law. See id. § 1607. In briefing below, California

emphasized its view that state-mandated disclosures, beyond

those required by federal law, are “essential to the goal of

saving energy.” Appellants’ Opening Br. 8-9. And it noted

that the information collected by California regulators is

“used daily by ... government agencies, consumers, building

officials, energy researchers, utility program managers,

manufacturers, and even other major appliance databases.”

Id.

As Judge Noonan explained in his dissent below,

California’s regulations are piecisely the type of state

regulations that Congress intended to prohibit under the

EPCA’s express preemption provisions. See Pet. App. 21a.

The Ninth Circuit panel majority, however, reached the

opposite result. Emphasizing California’s view that its

regulations serve “laudable” goals, the court employed an

unprecedented “presumption against preemption” as

justification for rewriting the plain text that Congress crafted.

In particular, the panel majority narrowly construed the

EPCA’s preemptive scope, holding that the words

“disclosure of information” refer only to “consumer-directed

labeling at point of sale or use.” Pet. App. 12a. And it

imposed other strained narrowing constructions in order to

save California's regulatory scheme.

For reasons set forth below, the Ninth Circuit manifestly

erred in letting stand California’s strategic regulatory attempt

to nullify the EPCA’s command that the States may not

interfere with the uniform federal regulatory scheme

governing energy efficiency disclosures. This Court should

not tolerate this affront to federal law.