The U.S. Department of Energy (DOE) was ordered yesterday to publish four energy conservation standards finalized during the Obama administration in December 2016.  (See Order & Judgment, NRDC v. Perry, Case No. 17-03404 (N.D. Cal. February 15, 2018)).  The standards at issue apply to portable air conditioners, air compressors, commercial packaged boilers and uninterruptable power supplies.  The court ordered DOE to publish the rules within 28 days unless DOE appeals (in which case the court would entertain a stay).  Manufacturers and importers of the four products should watch for an appeal or start the process of designing and manufacturing products to be compliant as of the effective dates of the standards.

The case is another example of courts limiting Trump administration efforts to roll back or delay Obama-era rules. In this instance, the rules were posted as final on DOE’s website in December, but indicated that they were subject to further review under DOE’s Error Correction Rule.  The Error Correction rule provides the public a 45-day window to review energy standards typically for objective errors, such as typographical and calculation mistakes.

In June 2017, NRDC and the State of California sued DOE under the citizen-suit provisions of the Energy Policy and Conservation Act (EPCA) because DOE had not released the rules for publication for over a year. The California district court rejected DOE’s argument that the citizen suit provisions of the EPCA only allow citizens to bring an action against DOE for failure to comply with the EPCA, itself, and not regulations promulgated under the EPCA. The court also rejected DOE’s contention that publication of rules under the Error Correction Rule was discretionary and that citizen suits are only available for non-discretionary duties.  In the court’s view, DOE was attempting to reinterpret the Error Corrections Rule in a manner that was inconsistent with DOE’s statements about the non-discretionary nature of the rule when it was enacted.


For further information, please contact Douglas B. Sanders:

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Mr. Sanders leads Baker & McKenzie’s U.S. environmental litigation practice. He represents both domestic and non-U.S. corporations before federal, state and administrative courts in environmental, class action, mass tort and product liability litigation, government enforcement, permitting and criminal proceedings. He counsels companies with respect to compliance with CERCLA, RCRA, CWA, TSCA, OSHA and state environmental and product regulations. Mr. Sanders advises multi-national and domestic corporations on environmental, health and safety statutory requirements and legal risks with respect to products sold or marketed in the United States, including responding to product liability claims and recalls. He also advises clients on environmental, health & safety risks and liabilities in transactions.