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State v. Bodman

November 1, 2007

STATE OF NEW YORK, THE PEOPLE OF THE STATE OF CALIFORNIA, EX REL. ATTORNEY GENERAL BILL LOCKYER CALIFORNIA ENERGY COMMISSION, STATE OF CONNECTICUT, STATE OF ILLINOIS, STATE OF IOWA, STATE OF MAINE, COMMONWEALTH OF MASSACHUSETTS, STATE OF NEW HAMPSHIRE, STATE OF NEW JERSEY, STATE OF NEW MEXICO, EX REL. ATTORNEY GENERAL PATRICIA A. MADRID, STATE OF NORTH CAROLINA, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, STATE OF RHODE ISLAND, STATE OF VERMONT, STATE OF WISCONSIN, AND CITY OF NEW YORK, PLAINTIFFS,
v.
SAMUEL W. BODMAN, AS SECRETARY OF THE UNITED STATES DEPARTMENT AND OF ENERGY, AND UNITED STATES DEPARTMENT OF ENERGY, DEFENDANTS.
NATURAL RESOURCES DEFENSE COUNCIL, INC., MASSACHUSETTS UNION OF PUBLIC HOUSING TENANTS, AND TEXAS RATEPAYERS' ORGANIZATION TO SAVE ENERGY, PLAINTIFFS,
v.
SAMUEL W. BODMAN, AS SECRETARY OF THE UNITED STATES DEPARTMENT OF ENERGY, AND UNITED STATES DEPARTMENT OF ENERGY, DEFENDANTS.



The opinion of the court was delivered by: Sprizzo, D.J.

MEMORANDUM OPINION AND ORDER

Defendants, the United States Department of Energy and its Secretary, Samuel W. Bodman (collectively the "DOE" or the "Government"), submit this motion for an order modifying the November 7, 2006 Consent Decree (the "Motion") that the Government entered into with Plaintiffs, the State of New York, et al. The Motion seeks a nine-month extension of the final rule setting efficiency standards for certain furnaces and boilers in order to permit the Government to issue a Supplemental Notice of Proposed Rulemaking ("SNOPR") prior to making a final rule. The Plaintiffs in this action submit that the DOE has not established the requisite "good cause" for modifying the Consent Decree, but would be willing to stipulate to the DOE's proposed extension, provided that certain conditions are met.*fn1 The Gas Appliance Manufacturers' Association ("GAMA"), the Air-Conditioning and Refrigeration Institute ("ACRI"), and the Association of Home Appliance Manufacturers ("AHAM") have opposed it. The joint requests of the Government and GAMA for oral argument is denied, and for the reasons that follow, the Government's Motion is DENIED.

I. BACKGROUND

A) Factual Background and Procedural History

In 1975, Congress enacted the Energy Policy and Conservation Act ("EPCA") in order "to conserve energy supplies" and "to provide for improved energy efficiency of . . . major appliances . . . ." 42 U.S.C. § 6201(4)-(5). In addition, the EPCA's appliance efficiency provisions have the goal "of steadily increasing the energy efficiency of covered products." NRDC v. Abraham, 355 F.3d 179, 197 (2d Cir. 2004). Thus, the EPCA requires that certain residential and commercial equipment meet minimum energy efficiency standards that are established by Congress in the statute or prescribed by the DOE pursuant to the statute. See, e.g., 42 U.S.C. §§ 6295, 6313 & 6317. Because technology improves over time, the EPCA requires the DOE to issue periodic revisions, or updates, to existing standards. In particular, the EPCA requires the DOE to undertake successive rulemakings concerning revised efficiency standards and sets express deadlines by which the DOE must issue final rules.

The Motion concerns the current September 30, 2007 deadline (the "Existing Deadline") for the DOE to publish a final rule establishing amended energy conservation standards for residential furnaces and boilers.*fn2 The EPCA's original deadline for a final rule was January 1, 1994. See 42 U.S.C. § 6295(f)(3)(B). In May 2001, the DOE published a schedule indicating that it intended to publish the final rule in 2003 instead. See 66 Fed. Reg. 25,365, 25,369 (May 14, 2001). Seven months later, the DOE published a new schedule stating that it would complete the rule in 2004. See 66 Fed. Reg. 61,125, 61,160-61 (Dec. 3, 2001). In 2003, the DOE published a third schedule, moving the completion date to September 2005. See 68 Fed. Reg. 72,401, 72,467-68 (Dec. 22, 2003). In 2004, the DOE published a fourth schedule moving the completion date to September 2007, thirteen years after the EPCA's original deadline. See 69 Fed. Reg. 72,663, 72,712-13 (Dec. 13, 2004).

On September 7, 2005, Plaintiffs filed two EPCA citizen suits in this Court alleging that the DOE has failed to comply with the EPCA's deadlines for publishing final rules concerning energy efficiency standards for twenty-two categories of products, including furnaces and boilers. See Compl., dated Sept. 7, 2005 (05 Civ. 7807); Compl., dated Sept. 7, 2005 (05 Civ. 7808). The Court consolidated the two actions on December 6, 2005. See Order, dated Nov. 30, 2005 (05 Civ. 7807, 05 Civ. 7808). Subsequently, the AHAM was permitted to intervene as a Defendant-Intervenor, and the GAMA and the ACRI were permitted to intervene as Plaintiffs-Intervenors. See Order, dated Dec. 16, 2005 (05 Civ. 7807, 05 Civ. 7808); Order, dated Dec. 27, 2005 (05 Civ. 7807, 05 Civ. 7808).

B) The Consent Decree

On November 7, 2006, this Court entered a Consent Decree resolving the complaints in this action. See Decl. of Pierre G. Armand, dated Aug. 3, 2007 ("Armand Decl."), Ex. A. In the Consent Decree, the parties agreed that "it is in the best interests of the public, the parties and judicial economy to resolve these consolidated actions without further litigation" and that "the actions can be resolved by a binding schedule governing the completion of Energy Efficiency Rules, as set forth in this Consent Decree." See Consent Decree ¶ 19. The Consent Decree set forth a schedule pursuant to which the DOE was required to publish final rules providing amended energy efficiency standards for the twenty-two categories of products. Id., § III, ¶ 1. With respect to furnaces and boilers, the Consent Decree required the DOE to publish the final rule on or before September 30, 2007. Id. The Consent Decree provided that it could "be modified by (a) written stipulation of the parties, or (b) the Court, pursuant to a motion by any party, for good cause shown . . . ." Id., § V, ¶ 1.

C) The Final Rule Regarding Residential Furnaces and Boilers

On July 29, 2004, the DOE published an Advanced Notice of Proposed Rulemaking ("ANOPR") pertaining to energy conservation standards for residential furnaces and boilers. See 69 Fed. Reg. 45,420 (July 29, 2004). The ANOPR described the analyses that the DOE expected to perform and requested data for use in the rulemaking. Id.

On October 6, 2006, the DOE published a Notice of Proposed Rulemaking ("NOPR") that proposed amending the energy conservation standards for residential furnaces and boilers. See 71 Fed. Reg. 59,204 (Oct. 6, 2006). On October 30, 2006, the DOE held a public meeting for interested parties to provide comments and to discuss issues relevant to the NOPR. See Decl. of David E. Rodgers, dated Aug. 3, 2007 ("Rodgers Decl.") ¶ 13. On February 9, 2007, the DOE published a notice of data availability and reopening of the comment period in order to address questions posed by stakeholders at the public meeting and to provide an opportunity for the public to review and comment on the DOE's response to each question. See 72 Fed. Reg. 6184 (Feb. 9, 2007). In response to the NOPR and the notice of data availability, the DOE received over forty comments from stakeholders. See Rodgers Decl. ¶ 15.

On May 4, 2007, the DOE filed a Report on Status of Rulemaking Activity with the Court (the "May 2007 Report"). See Armand Decl., Ex. B. In the May 2007 Report, the DOE advised the Court that it was considering the comments to the NOPR and notice of data availability, and that the final rule was on schedule for publication on or before September 30, 2007. Id. at 2.

After completing its initial analysis of the comments received in response to the NOPR and notice of date availability, the DOE determined that it wished to give further consideration to three issues, discussed infra, that were raised in the comments. See Rodgers Decl. ΒΆΒΆ 17-18, 23. By filing the Motion, the DOE seeks a modification of the Consent Decree that would permit a nine-month extension of the Existing Deadline, from September 30, 2007 until June 30, 2008. Id. ...


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