01 4102(L)

01-4103(CON), 02-4160(COM), 02-4189(CON), 02-6139(CON)

1uiteb 'tate (Court of tppeaf^

for the

'uoub (Circuit

NATURAL RESOURCES DEFENSE COUNCIL, PUBLIC UTILITY LAW PROJECT, STATE OF

CONNECTICUT, STATE OF VERMONT, STATE OF MAINE, STATE OF NEW JERSEY, STATE

OF NEVADA, STATE OF CALIFORNIA, CONSUMER FEDERATION OF AMERICA & STATE OF

NEW YORK,

- against -

Petitioners,

SPENCER ABRAHAM, As Secretary of the United States Department of Energy & UNITED STATES

DEPARTMENT OF ENERGY,

- and -

Respondents,

AIR-CONDITIONING & REFRIGERATION INSTITUTE, STATE OF NEW HAMPSHIRE,

TEXAS RATEPAYERS' ORGANIZATION TO SAVE ENERGY, MASSACHUSETTS

UNION OF PUBLIC HOUSING TENANTS, COMMONWEALTH OF MASSACHUSETTS,

NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, & STATE

OF RHODE ISLAND,

PETITIONS FOR REVIEW OF UNITED STATES

DEPARTMENT OF ENERGY RULES

Intervenors.

BRIEF FOR INTERVENORS NATIONAL ASSOCIATION OF REGULATORY UTILITY

COMMISSIONERS

SHARLA M. BARKLIND

Assistant General Counsel

JAMES BRADFORD RAMSAY

General Counsel

National Association of Regulatory Utilities Commissioners

1101 Vermont Avenue, N.W., Suite 200

Washington, D.C. 20005

(202) 898-1350

EE-RM-STD-98-440 COMMENT 317

-..... 

01-4103(CON), 02-4160(COM), 02-4189(CON), 02-6139(CON) 

Wniteb ~tate5 ([ourt of ~ppeal5 

for the 

$econb (!Circuit 

NATURAL RESOURCES DEFENSE COUNCIL, PUBLIC UTILITY LAW PROJECT, STATE OF 

CONNECTICUT, STATE OF VERMONT, STATE OF MAINE, STATE OF NEW JERSEY, STATE 

OF NEVADA, STATE OF CALIFORNIA, CONSUMER FEDERATION OF AMERICA & STATE OF 

NEW YORK, 

Petitioners, 

- againstSPENCER ABRAHAM, As Secretary of the United States Department of Energy & UNITED STATES 

DEPARTMENT OF ENERGY, 

Respondents, 

- andAIR-CONDITIONING & REFRIGERATION INSTITUTE, STATE OF NEW HAMPSHIRE, 

TEXAS RATEPAYERS' ORGANIZATION TO SAVE ENERGY, MASSACHUSETTS 

UNION OF PUBLIC HOUSING TENANTS, COMMONWEALTH OF MASSACHUSETTS, 

NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, & STATE 

OF RHODE ISLAND, 

PETITIONS FOR REVIEW OF UNITED STATES 

DEPARTMENT OF ENERGY RULES 

Intervenors. 

BRIEF FOR INTERVENORS NATIONAL ASSOCIATION OF REGULATORY UTILITY 

COMMISSIONERS 

SHARLA M. BARKLIND 

Assistant General Counsel 

JAMES BRADFORD RAMSAY 

General Counsel 

National Association of Regulatory Utilities Commissioners 

1101 Vennont Avenue, N.W., Suite 200 

Washington, D.C. 20005 

(202) 898-1350 
CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 2d

Circuit Rules 26.1 and 28, the National Association of Regulatory Utility

Commissioners (NARUC) respectfully submits this disclosure statement. NARUC

is a quasi-governmental nonprofit organization founded in 1889 and incorporated

in the District of Columbia. NARUC asserts it is a "trade association" as that term

is defined in Federal Rules of Appellate Procedure Rule 26.1(b) and thus is not

required to submit a disclosure statement. However, for the Court's convenience,

we offer the following. NARUC has no parent company. No publicly held

company has any ownership interested in NARUC.

NARUC represents those government officials in the fifty States, the District

of Columbia, Puerto Rico, and the Virgin Islands, charged with the duty of

regulating public utilities and common carriers. NARUC's mission is to serve the

public interest by improving the quality and effectiveness of public utility

regulation. Under State law, NARUC's members have the obligation to ensure the

establishment and maintenance of such energy utility services as may be required

by the public convenience and necessity, and to ensure that such services are

provided at rates and conditions that are just, reasonable and nondiscriminatory for

all consumers. The obligation NARUC's members have to ensure the integrity of

energy services gives NARUC's members the unique opportunity to work to

i

EE-RM-STD-98-440 COMMENT 317

CORPORATE DISCLOSURE STATEMENT 

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and 2d 

Circuit Rules 26.1 and 28, the National Association of Regulatory Utility 

Commissioners (NARUC) respectfully submits this disclosure statement. NARUC 

is a quasi-governmental nonprofit organization founded in 1889 and incorporated 

in the District of Columbia. NARUC asserts it is a "trade association" as that term 

is defined in Federal Rules of Appellate Procedure Rule 26.1 (b) and thus is not 

required to submit a disclosure statement. However, for the Court's convenience, 

we offer the following. NARUC has no parent company. No publicly held 

company has any ownership interested in NARUC. 

NARUC represents those government officials in the fifty States, the District 

of Columbia, Puerto Rico, and the Virgin Islands, charged with the duty of 

regulating public utilities and common carriers. NARUC's mission is to serve the 

public interest by improving the quality and effectiveness of public utility 

regulation. Under State law, NARUC's members have the obligation to ensure the 

establishment and maintenance of such energy utility services as may be required 

by the public convenience and necessity, and to ensure that such services are 

provided at rates and conditions that are just, reasonable and nondiscriminatory for 

all consumers. The obligation NARUC's members have to ensure the integrity of 

energy services gives NARUC's members the unique opportunity to work to 
improve and enhance the delivery of energy services in our country. Working with

standing committees, NARUC Energy and Environmental Programs support the

interests of public utility regulation via technical outreach and research. To this

end, NARUC cooperates with the U.S. Department of Energy (DOE), the U.S.

Environmental Protection Agency (EPA), and other donors to support

environmentally sustainable energy production and use. Additionally, NARUC's

members serve on the Secretary of Energy's Electricity Advisory Board and other

organizations that are actively engaged in developing proposals and policies that

will ensure that our nation will continue to have access to reliable and sufficient

electricity sources. Both the United States Congress and federal courts have

recognized that NARUC is a proper party to represent the collective interest of the

State regulatory commissions.'

1 See e. g., 47 U.S.C. § 410 (1986), where Congress calls NARUC "the

national organization of the State commissions" responsible for economic and

safety regulation of the intrastate operation of carriers and utilities. Cf., 47 U.S.C.

§ 254 (1996). See, also, USA v. Southern Motor Carrier Rate Conference et al.,

467 F.Supp. 471 (N.D. Ga. 1979), aff. 672 F.2d 469 (5th Cir. Unit "B" 1982; aff. en

banc, 702 F.2d 532 (5t'' Cir. Unit "B" 1983), rev'd, 471 U.S. 48 (1985). See, also

Indianapolis Power and Light C. v. ICC, 587 F.2d 1098 (7t" Cir. 1982);

Washington Utilities and Transportation Commission v. FCC, 513 F.2d 1142 (9t'

Cir. 1976).

ii

EE-RM-STD-98-440 COMMENT 317

improve and enhance the delivery of energy services in our country. Working with 

standing committees, NARUC Energy and Environmental Programs support the 

interests of public utility regulation via technical outreach and research. To this 

end, NARUC cooperates with the U.S. Department of Energy (DOE), the U.S. 

Environmental Protection Agency (EPA), and other donors to support 

environmentally sustainable energy production and use. Additionally, NARUC's 

members serve on the Secretary of Energy's Electricity Advisory Board and other 

organizations that are actively engaged in developing proposals and policies that 

will ensure that our nation will continue to have access to reliable and sufficient 

electricity sources. Both the United States Congress and federal courts have 

recognized that NARUC is a proper party to represent the collective interest of the 

State regulatory comn1issions. 1 

See, e.g., 47 U.S.C. § 410 (1986), where Congress calls NARUC "the 

national organization of the State commissions" responsible for economic and 

safety regulation of the intrastate operation of carriers and utilities. Cf., 47 U.S.C. 

§ 254 (1996). See, also, USA v. Southern Motor Carrier Rate Conference, et al., 

467 F.Supp. 471 (N.D. Ga. 1979), aff. 672 F.2d 469 (5th CiT. Unit "B" 1982; aff. en 

banc, 702 F.2d 532 (5th CiT. Unit "B" 1983), rev'd, 471 U.S. 48 (1985). See, also 

Indianapolis Power and Light C. v. ICC, 587 F.2d 1098 (7th CiT. 1982); 

Washington Utilities and Transportation Commission v. FCC, 513 F.2d 1142 (9th 

CiT. 1976). . 

11 
TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................iv

PRELIMINARY STATEMENT ....................................................1

JURISDICTIONAL STATEMENT ................................................ 3

ISSUE PRESENTED .................................................................4

STATEMENT OF THE CASE ......................................................4

STATEMENT OF THE FACTS ....................................................5

SUMMARY OF ARGUMENT ................................................... 12

ARGUMENT ........................................................................15

1. A 12 SEER Standard Is Not the Maximum Improvement in Energy

Efficiency that is Technologically

Feasible ....................................................................15

II. DOE Fails To Justify, Nor Does The Record Provide Evidence To

Conclude, That the Revised 12 SEER Standard Is the Maximum

Improvement in Energy Efficiency that is Economically

Justified ....................................................................1 6

CONCLUSION ......................................................................27

CERTIFICATE OF COMPLIANCE ............................................. 28

111

EE-RM-STD-98-440 COMMENT 317

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ...................................................... .iv 

J>~LIrvfI~AFl1{ STATErviE~T .................................................... 1 

JURlSDICTIO~AL STATErviE~T .......................................... '" ... 3 

ISSUE J>~SE~TED ................................................................. 4 

STATErvfENT OF THE CASE ..................................................... .4 

STATErviE~T OF THE FACTS .................................................... 5 

SUrvirvfAFl1{ OF ARGUMENT ................................................... 12 

AFlGUME~T ........................................................................ 15 

1. A 12 SEEFl Standard Is Not the Maximum Improvement in Energy 

Efficiency that is Technologically 

Feasible .................................................................... 15 

II. DOE Fails To Justify, ~or Does The Flecord J>rovide Evidence To 

Conclude, That the Flevised 12 SEER Standard Is the Maximum 

Improvement in Energy Efficiency that is Economically 

Justified .................................................................... 16 

CO~CLUSION ...................................................................... 27 

CEFlTIFICATE OF COMJ>LIA~CE ............................................. 28 

111 
TABLE OF AUTHORITIES

Cases

California v. Watt, 668 F.2d 1290, 1302 (D.C.Cir.1981) ...........................19n.8

Callaway v. Commissioner of Internal Revenue, 231 F.2d 106,

(2d Cir. 2000) .........................................................................11

Cellular Phone Taskforce v. FCC, 205 F.3d 82, 89-90 (2d Cir. 2000) .......... 10,11

Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999)...11,12

Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) ........................................10

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ... 19n.8

Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993) ...............................11

Gooding v. Willard, 209 F.2d 913 (2d Cir. 1954) .......................................12

Illinois Bell Tel. Co. V. FCC, 966 F.2d 1478 (D.C. Cir. 1992) .......................10

Indianapolis Power and Light Co. v. ICC, 587 F.2d 1098 (7t" Cir. 1982).........iin.1

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ..........................................11

Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

(1983) ..............................................................................10, 11, 19n.9

NRDC v. Herrington, 768 F.2d 1355 (1985) ............................5, 6, 7,15,16, 18

Schulz v. Williams, 44 F.3d 48, 51 (2d Cir. 1994) ....................................4n.1

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994) ........................11

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) ........................12

iv

EE-RM-STD-98-440 COMMENT 317

TABLE OF AUTHORITIES 

Cases 

California v. Watt, 668 F.2d 1290, 1302 (D.C.Cir.1981) ........................... 19n.8 

Callaway v. Commissioner of Internal Revenue, 231 F .2d 106, 

(2d Cir. 2000) ......................................................................... 11 

Cellular Phone Taskforce v. FCC, 205 F.3d 82, 89-90 (2d Cir. 2000) .......... 10, 11 

Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490,494 (2d Cir. 1999) ... 11,12 

Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) ........................................ 10 

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ... 19n.8 

Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993) ............................... 11 

Gooding v. Willard, 209 F.2d 913 (2d Cir. 1954) ....................................... 12 

Illinois Bell Tel. Co. V. FCC, 966 F.2d 1478 (D.C. Cir. 1992) ....................... 10 

Indianapolis Power and Light Co. v. ICC, 587 F.2d 1098 (7th Cir. 1982) ......... iin.l 

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .......................................... 11 

Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 

(1983) .............................................................................. 10,11, 19n.9 

NRDC v. Herrington, 768 F.2d 1355 (1985) ............................ 5,6,7,15,16,18 

Schulz v. Williams, 44 F.3d 48, 51 (2d Cir. 1994) .................................... 4n.1 

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994) ........................ 11 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) ........................ 12 

IV 
USA v. Southern Motor Carrier Rate Conference, et al., 467 F.Supp. 471

(N.D. Ga. 1979), aff. 672 F.2d 469 (5t" Cir. Unit "B" 1982; aff. en banc,

702 F.2d 532 (5t' Cir. Unit "B" 1983), rev'd, 471 U.S. 48 (1985)....... iin.I

Warth v. Seldin, 422 U.S. 490, 501-02, 95 S.Ct. 2197, 2206-07,

45 L.Ed.2d 343 (1975) ..........................................................4n.1

Washington Utilities and Transportation Commission v. FCC, 513 F.2d 1142

(9t' Cir. 1976) ......................................................................iin.I

Williams v. Bowen, 859 F.2d 255, 256 (2d Cir. 1988) ............................14, 14,26

Statutes

5 U.S.C. §§ 553 et seg ........................................................ .............2

5 U.S.C. § 706 (2)(A) (1988) ...............................................................10

28 U.S.C. § 1291 ..............................................................................3

42 U.S.C. § 6201 (4), (5) ....................................................................5

42 U.S.C. §§ 6291-6309 .....................................................................3

42 U.S.C. 6295(d)(3)(A) and (B) ...........................................................7

42 U.S.C. 6295(o)(1) ......................................................................2,2,7

42 U.S.C. § 6295 (o)(2)(A) ............................................................12, 12,15

42 U.S.C. § 6295 (o)(2)(B)(i) ...............................................................4

42 U.S.C. § 6306(b) ..................................................................2, 11, 15

42 U.S.C. § 6306(b)(2) .......................................................................4

Other Authorities

Federal Rules of Appellate Procedure 26.1 ..............................................i

Federal Rules of Appellate Procedure 28(1) ....................................... i, 5, 18

v

EE-RM-STD-98-440 COMMENT 317

USA v. Southern Motor Carrier Rate Conference, et al., 467 F.Supp. 471 

(N.D. Ga. 1979), aff. 672 F.2d 469 (5th Cir. Unit "B" 1982; aff. en bane, 

702 F.2d 532 (5 th Cir. Unit "B" 1983), rev'd, 471 U.S. 48 (1985) ...... .iin.1 

Warth v. Seldin, 422 U.S. 490, 501-02, 95 S.Ct. 2197, 2206-07, 

45 L.Ed.2d 343 (1975) ......................................................... .4n.l 

Washington Utilities and Transportation Commission v. FCC, 513 F.2d 1142 

(9th Cir. 1976) ..................................................................... jin.1 

Williams v. Bowen, 859 F.2d 255,256 (2d Cir. 1988) ............................ 14, 26 

Statutes 

5 U.S.C. §§ 553 et seq ........................................................................ 2 

5 U.S.C. § 706 (2)(A) (1988) ............................................................... 10 

28 U.S.C. § 1291-.............................................................................. 3 

42 U.S.C. § 6201 (4), (5) .................................................................... 5 

42 U.S.C. §§ 6291-6309 ..................................................................... 3 

42 U.S.C. 6295(d)(3)(A) and (B) ........................................................... 7 

42 U.S.C. 6295(0)(1) ...................................................................... 2, 7 

42 U.S.C. § 6295 (o)(2)(A) ............................................................ 12,15 

42 U.S.C. § 6295 (0 )(2)(B)(i) .............................................................. .4 

42 U.S.C. § 6306(b) .................................................................. 2, 11, 15 

42 U.S.C. § 6306(b)(2) ..................................................... , ................. 4 

Other Authorities 

Federal Rules of Appellate Procedure 26.1 ............................................. .i 

Federal Rules of Appellate Procedure 28(i) ...................................... .i, 5, 18 

v 
66 Fed. Reg. 59590 (October 5, 2000) ...................................................7

66 Fed. Reg. 7169 (January 21, 2001) ..............................................passim

66 Fed. Reg. 7701 (January 24, 2001) ......................................................8

66 Fed. Reg. 8745 (February 2, 2001) ......................................................9

66 Fed. Reg. 20191 (April 20, 2001) ...................................................... 9

66 Fed. Reg. 38822 (July 25, 2001) ........................................................9

67 Fed. Reg. 36368 (May 23, 2002) ................................................. passim

H.Rep. 94-340 (1975) ........................................................................ 5

H.R.Rep. No. 496, Pt. 4, 95th Cong., 1st Sess. 46 (1977) .................................6

S.Rep. 100-6 ..................................................................................6

S.Rep. No. 409, 95th Cong., 1st Sess. 38 (1977) ..........................................6

Miscellaneous

Report of the U.S. Department of Energy's Power Outage Study Team: Findings

and Recommendations to Enhance Reliability from the Summer of 1999, March

2000" ....................................................................................21, 21,22

Comments of the American Council for an Energy Efficient Economy filed in

DOE EE-RM-97-500 (December 1, 2000) ....................................23, 24, 25

Comments of Mayor Kirk Watson filed in DOE EE-RM-97-500 (November 30,

2000) ........................................................................................24

Comments of the Natural Resources Defense Council filed in DOE EE-RM-97-500

(December 1, 2000) .........................................................................22

Comments of the Texas Public Utility Commission filed in DOE EE-RM-97-500

(November 29, 2000) ............................................ .....................23, 23,24

vi

EE-RM-STD-98-440 COMMENT 317

66 Fed. Reg. 59590 (October 5, 2000) ................................................... 7 

66 Fed. Reg. 7169 (January 21,2001) .......................................... ... .passim 

66 Fed. Reg. 7701 (January 24,2001) ...................................................... 8 

66 Fed. Reg. 8745 (February 2,2001) ...................................................... 9 

66 Fed. Reg. 20191 (April 20, 2001) ...................................................... 9 

66 Fed. Reg. 38822 (July 25, 2001) ........................................................ 9 

67 Fed. Reg. 36368 (May 23,2002) .............................................. ... passim 

R.Rep. 94-340 (1975) ........................................................................ 5 

R.R.Rep. No. 496, Pt. 4, 95th Cong., 1

st Sess. 46 (1977) ................................. 6 

S.Rep. 100-6 .................................................................................. 6 

S.Rep. No. 409, 95th Cong., 1 st Sess. 38 (1977) .......................................... 6 

Miscellaneous 

Report of the U.S. Department of Energy's Power Outage Study Team: Findings 

and Recommendations to Enhance Reliability from the Summer of 1999, March 

2000" .................................................................................... 21, 22 

Comments of the American Council for an Energy Efficient Economy filed in 

DOE EE-RM-97-500 (December 1,2000) .................................... 23,24,25 

Comments of Mayor Kirk Watson filed in DOE EE-RM-97-500 (November 30, 

2000) ........................................................................................ 24 

Comments of the Natural Resources Defense Council filed in DOE EE-RM-97-500 

(December 1, 2000) ......................................................................... 22 

Comments of the Texas Public Utility Commission filed in DOE EE-RM-97-500 

(November 29, 2000) ...... , ............................................................ 23, 24 

VI 
PRELIMINARY STATEMENT

After seven years of delay, Respondent/Appellee, the United States

Department of Energy ("DOE" or "Department") issued a final rule on January 21,

2001, improving the energy efficiency of residential central air conditioners to a

Seasonal Energy Efficiency Ratio ("SEER") of 13 ("Final SEER 13 Rule). This

important rule was based on extensive comment and support from numerous

stakeholders, including the National Association of Regulatory Utility

Commissioners ("NARUC"). Shortly after the issuance of the Final SEER 13

Rule, DOE abruptly announced on February 2, 2001, its intent to delay the

effective date of that final rule. That announcement set the stage for subsequent

proceedings, which ultimately resulted in DOE reducing the 13 SEER energy

efficiency standard.

Petitioners/Appellants' and several Intervenors, including the National

Association of Regulatory Utility Commissioners, (collectively "Petitioners")

brought these consolidated cases2 to challenge the DOE's suspension, withdrawal,

' The main Petitioners' brief was submitted on behalf of: the States of New

York, California, Connecticut, Vermont, Maine, New Jersey, Nevada,

Massachusetts, New Hampshire, Rhode Island; the Natural Resources Defense

Council, Inc., Consumer Federation of America, Public Utility Law Project.

2 The consolidated cases are comprised of original petitions for review

(Docket Nos. 02-4160 and 02-4189), reactivated petitions for review (Docket Nos.

01-4102 and 01-4103) and an appeal from a judgment entered in the district court

in the Southern District of New York (Docket No. 02-6139).

1

EE-RM-STD-98-440 COMMENT 317

PRELIMINARY STATEMENT 

After seven years of delay, Respondent! Appellee, the United States 

Department of Energy ("DOE" or "Department") issued a final rule on January 21, 

2001, improving the energy efficiency of residential central air conditioners to a 

Seasonal Energy Efficiency Ratio ("SEER") of 13 ("Final SEER 13 Rule). This 

important rule was based on extensive comment and support from numerous 

stakeholders, including the National Association of Regulatory Utility 

Commissioners ("NARUC"). Shortly after the issuance of the Final SEER 13 

Rule, DOE abruptly announced on February 2, 2001, its intent to delay the 

effective date of that final rule. That announcement set the stage for subsequent 

proceedings, which ultimately resulted in DOE reducing the 13 SEER energy 

efficiency standard. 

Petitioners/Appellants 1 and several Intervenors, including the National 

Association of Regulatory Utility Comn1issioners, (collectively "Petitioners") 

brought these consolidated cases

2 to challenge the DOE's suspension, withdrawal, 

The main Petitioners' brief was submitted on behalf of: the States of New 

York, California, Connecticut, Vermont, Maine, New Jersey, Nevada, 

Massachusetts, New Hampshire, Rhode Island; the Natural Resources Defense 

Council, Inc., Consumer Federation of America, Public Utility Law Project. 

2 The consolidated cases are comprised of original petitions for review 

(Docket Nos. 02-4160 and 02-4189), reactivated petitions for review (Docket Nos. 

01-4102 and 01-4103) and an appeal from a judgment entered in the district court 

in the Southern District of New York (Docket No. 02-6139). 

1 
and ultimate revision of the Final SEER 13 Rule as unlawful on several grounds.

DOE's actions conflict with the Energy Policy and Conservation Act ("EPCA")

42 U.S.C. § 6291-6309, as amended by the National Appliance Energy

Conservation Act ("NAECA"), 42 U.S.C. § 6201 note, Pub. L. 100-12, 101 Stat.

103 (1987). The agency's replacement of SEER 13 with a lower energy efficiency

standard violates EPCA because these actions were not supported by substantial

evidence as required under 42 U.S.C. § 6306(b)(2). Moreover, EPCA prohibits

DOE from decreasing an energy efficiency standard that it has already prescribed

through the regulatory process. See 42 U.S.C. § 6295(0)(1). Finally, the agency's

failure to provide prior notice of and an opportunity to comment upon the two final

rules purporting to delay the effective date of the Final SEER 13 Rule violates the

Administrative Procedure Act ("APA"), 5 U.S.C. § 553 et M.

This case asks whether an agency that has issued a final rule in tardy

compliance with a statutory deadline can suddenly reverse course in violation of all

applicable statutes. This case presents numerous substantive and procedural issues

regarding DOE's actions. To avoid unnecessary repetition, NARUC endorses and

adopts all the arguments presented in the main Petitioner brief.3

3 See, September 27, 2002 filed "Brief for Petitioners National Resources

Defense Council, State of New York, State of California,, State of Connecticut,

State of Vermont, State of Maine, State of New Jersey, State of Nevada, Consumer

Federation of America, Public Utility Law Project and Interveners State of New

2

EE-RM-STD-98-440 COMMENT 317

and ultimate revision of the Final SEER 13 Rule as unlawful on several grounds. 

DOE's actions conflict with the Energy Policy and Conservation Act ("EPCA"), 

42 U.S.C. § 6291-6309, as amended by the National Appliance Energy 

Conservation Act ("NAECA"), 42 U.S.C. § 6201 note, Pub. L. 100-12, 101 Stat. 

103 (1987). The agency's replacement of SEER 13 with a lower energy efficiency 

standard violates EPCA because these actions were not supported by substantial 

evidence as required under 42 U.S.C. § 6306(b)(2). Moreover, EPCA prohibits 

DOE from decreasing an energyefficiency standard that it has already prescribed 

through the regulatory process. See 42 U.S.C. § 6295(0)(1). Finally, the agency's 

failure to provide prior notice of and an opportunity to comment upon the two final 

rules purporting to delay the effective date of the Final SEER 13 Rule violates the 

Administrative Procedure Act ("AP A"), 5 U.S.C. § 553 et seq. 

This case asks whether an agency that has issued a final rule in tardy 

compliance with a statutory deadline can suddenly reverse course in violation of all 

applicable statutes. This case presents numerous substantive and procedural issues 

regarding DOE's actions. To avoid unnecessary repetition, NARUC endorses and 

adopts all the arguments presented in the main Petitioner brief.3 

See, September 27,2002 filed "Brief for Petitioners National Resources 

Defense Council, State of New York, State of California,_ State of Connecticut, 

State of Vermont, State of Maine, State of New Jersey, State of Nevada, Consumer 

Federation of America, Public Utility Law Project and Interveners State of New 

2 
NARUC's State regulator members' have unique experience with respect to

conservation policy and the interwoven effects of such energy conservation on

system reliability. Drawing on that expertise, this brief will provide additional

insights on why DOE's discussion of the impact of the change in standards on

conservation and reliability finds no support in the record . NARUC urges this

Court to find that DOE has not provided an adequate explanation for its actions

and that those actions are inconsistent with the applicable statutes and have no

support in the record.

JURISDICTIONAL STATEMENT

DOE's jurisdiction over the rulemakings challenged in this appeal derives

from EPCA. The EPCA requires DOE to, inter alia, prescribe amended standards

for energy efficiency for various consumer products such as central air

conditioners and heat pumps. See, 42 U.S.C. § 6291-6309.

This Court has original jurisdiction over the original and reactivated

Petitions for Review (Docket Nos. 01-4102, 01-4103, 02-4160 and 02-4189)

pursuant to EPCA, 42 U.S.C. § 6306(b). In addition, the Court has jurisdiction

over the appeal from the Southern District of New York (Docket No. 02-6139)

pursuant to 28 U.S.C. § 1291. Petitioners timely filed their notices of appeal on

Hampshire, State of Rhode Island, Commonwealth of Massachusetts" at pages 5 -

132 ("Petitioners' Brief')..

3

EE-RM-STD-98-440 COMMENT 317

NARUC's State regulator members' have unique experience with respect to 

conservation policy and the interwoven effects of such energy conservation on 

system reliability. Drawing on that expertise, this brief will provide additional 

insights on why DOE's discussion of the impact of the change in standards op 

conservation and reliability finds no support in the record. NARUC urges this 

Court to find that DOE has not provided an adequate explanation for its actions 

and that those actions are inconsistent with the applicable statutes and have no 

support in the record. 

JURISDICTIONAL STATEMENT 

DOE's jurisdiction over the rulemakings challenged in this appeal derives 

from EPCA. The EPCA requires DOE to, inter alia, prescribe amended standards 

for energy efficiency for various consumer products such as central air 

conditioners and heat pumps. See, 42 U.S.c. § 6291-6309. 

This Court has original jurisdiction over the original and reactivated 

Petitions for Review (Docket Nos. 01-4102, 01-4103, 02-4160 and 02-4189) 

pursuant to EPCA, 42 U.S.C. § 6306(b). In addition, the Court has jurisdiction 

over the appeal from the Southern District of New York (Docket No. 02-6139) 

pursuant to 28 U.S.C. § 1291. Petitioners timely filed their notices of appeal on 

Hampshire, State of Rhode Island, Commonwealth of Massachusetts" at pages 5 -

132 ("Petitioners' Brief'). 

3 
May 21, 2002. JA-580. NARUC timely filed its motion to intervene on June 19,

2002.4

ISSUE PRESENTED

Whether the United States Department of Energy acted in conformance with

the "substantial evidence" requirements of section 6306 of the Energy Policy and

Conservation Act when it promulgated a SEER 12 energy efficiency standard?

STATEMENT OF THE CASE

This appeal concerns DOE's withdrawal of a final rule it published on

January 21, 2001, establishing a SEER 13 standard for residential central air

conditioners pursuant to the statutory requirements of the Energy Policy and

Conservation Act. 42 U.S.C. § 6295 (o)(2)(B)(i).

On May 21, 2002, the States of New York, Vermont, and Connecticut filed a

Petition for Review in this Court challenging the three actions comprising DOE's

May 23, 2002 rule, as published in the May 23, 2002 Federal Register. (Docket

No. 02-4160). On May 29, 2002, Natural Resources Defense Council, Inc. and

4 NARUC's standing is evident from the declarations submitted in support of

its motion to intervene. This Court's granting of our motion to intervene is a

finding of interest tantamount to a finding of standing. Schulz v. Williams, 44

F.3d 48, 51 (2d Cir. 1994)(quoting Warth v. Seldin, 422 U.S. 490, 501-02, 95 S.Ct.

2197, 2206-07, 45 L.Ed.2d 343 (1975) court may review all materials in record to

assess standing, including affidavits in support of standing).

4

EE-RM-STD-98-440 COMMENT 317

May 21, 2002. JA-580. NARUC timely filed its motion to intervene on June 19, 

ISSUE PRESENTED 

Whether the United States Department of Energy acted in conformance with 

the "substantial evidence" requirements of section 6306 of the Energy Policy and 

Conservation Act when it promulgated a SEER 12 energy efficiency standard? 

STATEMENT OF THE CASE 

This appeal concen1S DOE's withdrawal of a final rule it published on 

January 21, 2001, establishing a SEER 13 standard for residential central air 

conditioners pursuant to the statutory requirements of the Energy Policy and 

Conservation Act. 42 U.S.C. § 6295 (0)(2)(B)(i). 

On May 21,2002, the States of New York, Vermont, and Connecticut filed a 

Petition for Review in this Court challenging the three actions comprising DOE's 

May 23, 2002 rule, as published in the May 23, 2002 Federal Register. (Docket 

No. 02-4160). On May 29, 2002, Natural Resources Defense Council, Inc. and 

4 NARUC's standing is evident from the declarations submitted in support of 

its motion to intervene. This Court's granting of our motion to intervene is a 

finding of interest tantamount to a finding of standing. Schulz v. Williams, 44 

F.3d48, 51 (2d Cir. 1994)(quoting Warth v. Seldin, 422 U.S. 490, 501-02,95 S.Ct. 

2197,2206-07, 45 L.Ed.2d 343 (1975) court may review all materials in record to 

assess standing, including affidavits in support of standing). 

4 
Public Utility Law Project also filed a Petition for Review in this Court challenging

the same DOE actions. (Docket No. 02-4189). On June 19, 2002, NARUC

intervened in this case. By Order of this Court filed July 19, 2002, the appeal and

the four petitions for review were consolidated.

STATEMENT OF FACTS

To avoid duplication, pursuant to Federal Rules of Appellate Procedure

28(i), NARUC adopts and incorporates by reference the history of EPCA outlined

in Petitioners Brief's "Statement of Facts." See, Petitioners Brief pp. 8-43.

However, NARUC will highlight specific portions relevant to our argument.

A. DOE's Obligation to Promulgate Energy Efficiency Standards

The EPCA was enacted in 1975 in response to the severe energy crisis the

United States was experiencing. See, NRDC v. Herrington, 768 F.2d 1355, 1364

(1985). One of the purposes of EPCA is "to conserve energy supplies through

energy conservation programs, and, where necessary, the regulation of certain

energy uses; [and] to provide for improved energy efficiency ... of major

appliances." 42 U.S.C. § 6201 (4), (5). One of the reasons for including energy

efficiency standards in the national plan to address the energy crisis was the

realization on the part of Congress and the Administration that making appliances

more energy efficient "can result in major reductions in net energy consumption."

H.Rep. 94-340 at 94 (1975), reprinted in 1975 U.S.C.C.A.N. 1762, 1856.

5

EE-RM-STD-98-440 COMMENT 317

Public Utility Law Project also filed a Petition for Review in this Court challenging 

the same DOE actions. (Docket No. 02-4189). On June 19, 2002, NARUC 

intervened in this case. By Order of this Court filed July 19, 2002, the appeal and 

the four petitions for review were consolidated. 

STATEMENT OF FACTS 

To avoid duplication, pursuant to Federal Rules of Appellate Procedure 

28(i), NARUC adopts and incorporates by reference the history of EPCA outlined 

in Petitioners Briefs "Staten1ent of Facts." See, Petitioners Briefpp. 8-43. 

However, NARUC will highlight specific portions relevant to our argument. 

A. DOE's Obligation to Promulgate Energy Efficiency Standards 

The EPCA was enacted in 1975 in response to the severe energy crisis the 

United States was experiencing. See, NRDC v. Herrington, 768 F.2d 1355, 1364 

(1985). One of the purposes of EPCA is "to conserve energy supplies through 

energy conservation programs, and, where necessary, the regulation of certain 

energy uses; [and] to provide for improved energy efficiency... of major 

appliances." 42 U.S.C. § 6201 (4), (5). One of the reasons for including energy 

efficiency standards in the national plan to address the energy crisis was the 

realization on the part of Congress and the Administration that making appliances 

more energy efficient "can result in major reductions in net energy consumption." 

H.Rep. 94-340 at 94 (1975), reprinted in 1975 U.S.C.C.A.N. 1762, 1856. 

5 
In 1978, Congress amended EPCA to "eliminate[] the target approach and

improve[] the procedures for establishing standards to ensure that efficiency

improvements will be made expeditiously." NRDC v. Herrington , 768 F.2d 1355,

1362 ( 1985)(citing H.R.Rep. No. 496, Pt. 4, 95th Cong., 1st Sess. 46

(1977)(emphasis added)). The appliances covered by EPCA "were selected

because they consumed relatively large amounts of electricity - together , about 80

percent of the energy used in American households." Herrington, at 1366

(1985)(citing S.Rep. No. 409, 95th Cong., 1st Sess . 38 (1977)). Additionally, in

enacting amendments to EPCA, Congress adopted a provision that "decided DOE

should not prescribe standards that would not result in `significant' energy

conservation." Id. at 1366-67 (citing H.R.Rep. No. 496, Pt. 4, 95th Cong. , 1st Sess.

46-47 ( 1977)(emphasis added)).

In 1987, Congress adopted the National Appliance Energy Conservation

Act, Publ.L. 100-12 (1987)("NAECA"). NAECA amended EPCA "to reduce the

Nation's consumption of energy and to reduce the regulatory and economic

burdens on the appliance manufacturing industry through the establishment of

national energy conservation standards for major residential appliances ." S.Rep.

100-6 at 2 ( 1987).

The amendments outlined specific requirements and deadlines that DOE was

to meet over the years to continue to improve energy efficiency for certain

6

EE-RM-STD-98-440 COMMENT 317

In 1978, Congress amended EPCA to "eliminate[] the target approach and 

improve[] the procedures for establishing standards to ensure that efficiency 

improvements will be made expeditiously." NRDC v. Herrington, 768 F.2d 1355, 

1362 (1985)( citing H.R.Rep. No. 496, Pt. 4, 95th Cong., 1

st Sess. 46 

(1977)( emphasis added». The appliances covered by EPCA "were selected 

because they consumed relatively large amounts of electricity - together, about 80 

percent of the energy used in American households." Herrington, at 1366 

(l985)(citing S.Rep. No. 409, 95th Cong., 1

st Sess. 38 (1977». Additionally, in 

enacting amendments to EPCA, Congress adopted a provision that "decided DOE 

should not prescribe standards that would not result in 'significant' energy 

conservation." Id. at 1366-67 (citing H.R.Rep. No. 496, Pt. 4, 95th Cong., 1st Sess. 

46-47 (1977)( emphasis added». 

In 1987, Congress adopted the National Appliance Energy Conservation 

Act, Publ.L. 100-12 (l987)("NAECA"). NAECA amended EPCA "to reduce the 

Nation's consumption of energy and to reduce the regulatory and economic 

burdens on the appliance manufacturing industry through the establishment of 

national energy conservation standards for major residential appliances." S.Rep. 

100-6 at 2 (1987). 

The amendments outlined specific requirements and deadlines that DOE was 

to meet over the years to continue to improve energy efficiency for certain 

6 
appliances. The NAECA amendments to EPCA, thus, accomplished two important

objectives of the Congress: that DOE would not be able to "roll back" an energy

efficiency standard once it has been prescribed pursuant to the rulemaking process

outlined in the statute; and that energy conservation standards would only improve

over time. Herrington at 1366 See 42 U.S.C. 6295(0)(1); 42 U.S.C. 6295(d)(3)(A)

and (B).

A DOE's Promulgation of the Final SEER 13 Rule

Six years after it was required to publish an amended rule for energy

efficiency standards for central air conditioners, DOE finally issued a Notice of

Proposed Rulemaking proposing an energy efficiency standard of SEER 12. 65

Fed. Reg. 59590 (October 5, 2000). JA-3816. Over 800 stakeholders, including

NARUC, submitted comments on this proposal. See 66 Fed. Reg. 7169, 7174

(January 21, 2001). JA-5549, 5554. In its comments, NARUC urged DOE "to

consider implementing an upgraded residential central air conditioner standard that

achieves the greatest level of cost-effective energy savings based on independent

cost estimates and assures peak demand reductions, e.g. a 30 % improvement in the

standard with a minimum peak efficiency performance requirement." JA-5211.

On January 21, 2001, DOE published in the Federal Register its

announcement that it was adopting the Final SEER 13 rule. 66 Fed. Reg. 7169

(January 21, 2001). JA-5549. DOE stated that the "final rule adopts standards that

7

EE-RM-STD-98-440 COMMENT 317

appliances. The NAECA amendments to EPCA, thus, accomplished two important 

objectives of the Congress: that DOE would not be able to "roll back" an energy 

efficiency standard once it has been prescribed pursuant to the rulemaking process 

outlined in the statute; and that energy conservation standards would only improv~ 

over time. Herrington at 1366 See 42 U.S.C. 6295(0)(1); 42 U.S.C. 6295(d)(3)(A) 

and (B). 

B. DOE's Promulgation of the Final SEER 13 Rule 

Six years after it was required to publish an amended rule for energy 

efficiency standards for central air conditioners, DOE finally issued a Notice of 

Proposed Rulemaking proposing an energy efficiency standard of SEER 12. 65 

Fed. Reg. 59590 (October 5,2000). JA-3816. Over 800 stakeholders, including 

NARUC, submitted comments on this proposal. See 66 Fed. Reg. 7169, 7174 

(January 21, 2001). JA-5549, 5554. In its comments, NARUC urged DOE "to 

consider implementing an upgraded residential central air conditioner standard that 

achieves the greatest level of cost-effective energy savings based on independent 

cost estimates and assures peak demand reductions, e.g. a 30% improvement in the 

standard with a minimum peak efficiency performance requirement." JA-5211. 

On January 21, 2001, DOE published in the Federal Register its 

announcement that it was adopting the Final SEER 13 rule. 66 Fed. Reg. 7169 

(January 21, 2001). JA-5549. DOE stated that the "final rule adopts standards that 

7 
are consistent with the requirements of [EPCA]." 66 Fed. Reg. at 7170. JA-5550-

The Final SEER Rule increased energy efficiency standards for central air

conditioners and heat pumps by 30%. Id. at 7171. JA-5551 . Pursuant to the

requirements of SPCA, DOE stated that it "had determined that the new standards

are the highest efficiency levels that are technically feasible and economically

justified as required by law." Id.

DOE based its decision to adopt a SEER 13 Final Rule on the numerous

comments DOE received. Id. DOE noted that a majority of the comments it

received "made [] claims regarding the benefits that would be associated with a 13

SEER standard .... These benefits included savings for consumers, avoided

emissions and electrical capacity , and the reduced occurrence of brownouts and

blackouts." Id. at 7176. JA-5556.

C. Withdrawal of the SEER 13 Final Rule

Shortly after the SEER 13 Final Rule was issued, the recently inaugurated

administration began a course of action to ultimately roll back the 13 SEER

standard. On January 24, 2001, a memorandum that directed heads and acting

heads of federal agencies to "temporarily postpone the effective date ... for 60

days" of "regulations that have been published in the OFR [Office of Federal

Register] but have not taken effect" ("Administration Memo") was published in the

Federal Register. 66 Fed. Reg. 7701 (January 24, 2001). JA5717. This temporary

8

EE-RM-STD-98-440 COMMENT 317

are consistent with the requirements of [EPCA]." 66 Fed. Reg. at 7170. JA-5550. 

The Final SEER Rule increased energy efficiency standards for· central air 

conditioners and heat pun1ps by 30%. rd. at 7171. JA-5551. Pursuant to the 

requirements of EPCA, DOE stated that it "had determined that the new standards 

are the highest efficiency levels that are technically feasible and economically 

justified as required by law." rd. 

DOE based its decision to adopt a SEER 13 Final Rule on the numerous 

comments DOE received. Id. DOE noted that a majority of the comments it 

received "made [] claims regarding the benefits that would be associated with a 13 

SEER standard .... These benefits included savings for consumers, avoided 

emissions and electrical capacity, and the reduced occurrence of brownouts and 

blackouts." rd. at 7176. JA-5556. 

C. Withdrawal of the SEER 13 Final Rule 

Shortly after the SEER 13 Final Rule was issued, the recently inaugurated 

administration began a course of action to ultimately roll back the 13 SEER 

standard. On January 24, 2001, a memorandum that directed heads and acting 

heads of federal agencies to "temporarily postpone the effective date ... for 60 

days" of "regulations that have been published in the OFR [Office of Federal 

Register} but have not taken effect" ("Administration Memo") was published in the 

Federal Register. 66 Fed. Reg. 7701 (January 24,2001). JA5717. This temporary 

8 
delay was meant to "ensure that the President's appointees have the opportunity to

review any new or pending regulations." Id.

Based on this directive, DOE published in the Federal Register a notice

"temporarily delaying the effective date of the SEER 13 Final Rule for 60 days

("February 2 Delay Rule"). 66 Fed. Reg. 8745 (February 2, 2001). JA-5722 DOE

stated, "The temporary 60-day delay in effective date is necessary to give DOE

officials the opportunity for further review and consideration of new regulations,

consistent with the [Administration Memo]." Id.

On April 13, 2001, DOE issued a press release announcing its intention to

propose "a new ... standard for central air conditioners and heat pumps" of 12

SEER. JA-5907. Shortly after this press release was issued, DOE further delayed

the SEER 13 Final Rule when it issued a notice delaying the effective date

indefinitely (April 20th Delay Rule). 66 Fed. Reg. 20,191 (April 20, 2001). JA5916.

Regardless of the fact that a Final Rule had already been issued, on July 25,

2001, DOE issued a notice proposing "to withdraw its January 22, 2001 final rule

setting forth energy conservation standards for residential central air conditioners

and central air conditioning heat pumps." 66 Fed. Reg. 38,822 (July 25, 2001).

JA6049. Additionally in this notice, DOE proposed a lower 12 SEER energy

efficiency standard ("12 SEER Rule"). Id. Not surprisingly, DOE finally issued a

9

EE-RM-STD-98-440 COMMENT 317

delay was meant to "ensure that the President's appointees have the opportunity to 

review any new or pending regulations." rd. 

Based on this directive, DOE published in the Federal Register a notice 

"temporarily delaying the effective date of the SEER 13 Final Rule for 60 days 

("February 2 Delay Rule"). 66 Fed. Reg. 8745 (February 2, 2001). JA-5722 DOE 

stated, "The temporary 60-day delay in effective date is necessary to give DOE 

officials the opportunity for further review and consideration of new regulations, 

consistent with the [Administration Memo]." rd. 

On April 13, 2001, DOE issued a press release announcing its intention to 

propose "a new ... standard for central air conditioners and heat pumps" of 12 

SEER. JA-5907. Shortly after this press release was issued, DOE further delayed· 

the SEER 13 Final Rule when it issued a notice delaying the effective date 

indefinitely (April 20th Delay Rule). 66 Fed. Reg. 20,191 (April 20, 2001). JA5916. 

Regardless of the fact that a Final Rule had already been issued, on July 25, 

2001, DOE issued a notice proposing "to withdraw its January 22, 2001 final rule 

setting forth energy conservation standards for residential central air conditioners 

and central air conditioning heat pumps." 66 Fed. Reg. 38,822 (July 25, 2001). 

JA6049. Additionally in this notice, DOE proposed a lower 12 SEER energy 

efficiency standard ("12 SEER Rule"). Id. Not surprisingly, DOE finally issued a 

9 
reduced SEER 12 standard as "Final Rule" on May 23, 2002, withdrawing the

finalized SEER 13 standard it had promulgated just 16 months earlier. 67 Fed.,

Reg. 36,368 (May 23, 2002). JA-7260.

STANDARD OF REVIEW

The standard of review for a federal agency decision established in the

Administrative Procedure Act, 5 U.S.C. § 706 (2)(A) (1988), requires this Court to

set aside any agency action if it is "...arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An agency acts

arbitrarily and capriciously where it does not "examine the relevant data and

articulate a satisfactory explanation for its action including a rational connection

between the facts found and the choice made." Motor Vehicles Mfrs. Ass'n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 295 43 (1983)(internal quotations

omitted). "Normally, an agency rule would be arbitrary and capricious if the

agency has ... offered an explanation for its decision that runs counter to the

evidence .... Id. at 43. see also Cellular Phone Taskforce v. FCC, 205 F.3d 82,

89-90 (2d Cir. 2000). Courts will defer to an agency's interpretation of a statute

"only where the intent of Congress is unclear and the agency's interpretation is a

reasonable one." Illinois Bell Tel. Co. v. FCC, 966 F.2d 1478, 1481 (D.C. Cir.

1992); See, Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984).

10

EE-RM-STD-98-440 COMMENT 317

reduced SEER 12 standard as "Final Rule" on May 23, 2002, withdrawing the 

finalized SEER 13 standard it had promulgated just 16 months earlier. 67 Fed., 

Reg. 36,368 (May 23, 2002). JA-7260. 

STANDARD OF REVIEW 

The standard of review for a federal agency decision established in the 

Administrative Procedure Act, 5 U.S.C. § 706 (2)(A) (1988), requires this Court to 

set aside any agency action if it is " ... arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An agency acts 

arbitrarily and capriciously where it does not "examine the relevant data and 

articulate a satisfactory explanation for its action including a rational connection 

between the facts found and the choice made." Motor Vehicles Mfrs. Ass'n v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(intemal quotations 

omitted). "Normally, an agency rule would be arbitrary and capricious if the 

agency has ... offered an explanation for its decision that runs counter to the 

evidence... . Id. at 43. see also Cellular Phone Taskforce v. FCC, 205 F.3d 82, 

89-90 (2d Cir. 2000). Courts will defer to an agency's interpretation of a statute 

"only where the intent of Congress is unclear and the agency's interpretation isa 

reasonable one." Illinois Bell Tel. Co. v. FCC, 966 F.2d 1478, 1481 (D.C. Cir. 

1992); See, Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984). 

10 
Moreover, "[a]n agency interpretation of a relevant provision which

conflicts with the agency's earlier interpretation is entitled to considerably less

deference than a consistently held agency view." INS v. Cardoza-Fonseca, 480

U.S. 421, 447 n.30 (1987)(intemal quotations omitted); accord Thomas Jefferson

Univ. v. Shalala, 512 U.S. 504, 515 (1994). Notwithstanding the fact that agencies

"may change their minds," the consistency of an agency's position remains a factor

to be considered in assessing the deference due that position." Callaway v.

Commissioner of Internal Revenue, 231 F.2d 106, 132 (2d Cir. 2000) citing Good

Samaritan Hosp. v. Shalala, 508 U.S. 4025 417 (1993). As the Supreme Court has

stated, "a new administration may not choose not to enforce laws of which it does

not approve...." State Farm, 463 U.S. at 59 (Rehnquist, J., concurring).

In addition to the standard of review for agency decisions in general, the

statute underlying this appeal imposes an additional direct standard that must be

considered. The Energy Policy and Conservation Act ("SPCA"),5 requires that

"[n]o rule under [42 U.S.C.] section ... 6295 ... may be affirmed unless supported

by substantial evidence." 42 U.S.C. § 6306(b)(2). "Substantial evidence" has

"been construed to mean less than a preponderance, but more than a scintilla."

Cellular Phone Taskforce v. FCC, 205 F.3d 82, 89 (2d Cir. 2000) citing Cellular

5 42 U.S.C. § 6291-6309, as amended by the National Appliance Energy

Conservation Act, 42 U.S.C. § 6201 note, Pub. L. 100-12, 101 Stat. 103 (1987).

11

EE-RM-STD-98-440 COMMENT 317

Moreover, "[a]n agency interpretation of a relevant provIsIon which 

conflicts with the agency's earlier interpretation is entitled to considerably less 

deference than a consistently held agency view." INS v. Cardoza-Fonseca, 480 

U.S. 421, 447 n.30 (l987)(intemal quotations omitted); accord Thomas Jefferson 

Univ. v. Shalala, 512 U.S. 504, 515 (1994). Notwithstanding the fact that agencies 

"may change their minds," the consistency of an agency's position remains a factor 

to be considered in assessing the deference due that position." Callaway v. 

Commissioner of Internal Revenue, 231 F.2d 106, 132 (2d Cir. 2000) citing Good 

Samaritan Hosp. v. Shalala, 508 U.S. 402,417 (1993). As the Supreme Court has 

stated, "a new administration may not choose not to enforce laws of which it does 

not approve .... " State Fann, 463 U.S. at 59 (Rehnquist, J., concurring). 

In addition to the standard of review for agency decisions in general, the 

statute underlying this appeal imposes an additional direct standard that must be 

considered. The Energy Policy and Conservation Act ("EPCA"),5 requires that 

"[n]o rule under [42 U.S.C.] section ... 6295 ... may be affirmed unless supported 

by substantial evidence." 42 U.S.C. § 6306(b )(2). "Substantial evidence" has 

"been construed to mean less than a preponderance, but more than a scintilla." 

Cellular Phone Taskforce v. FCC, 205 F.3d 82, 89 (2d Cir. 2000) citing Cellular 

5 42 U.S.C. § 6291-6309, as amended by the National Appliance Energy 

Conservation Act, 42 U.S.C. § 6201 note, Pub. L. 100-12, 101 Stat. 103 (1987). 

11 
Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999). "[Substantial

evidence] means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Id. quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 477 (1951). Substantial evidence "means more than evidence

which, considered by itself alone, would be sufficiently persuasive to induce the

trier of fact to give it the credence and weight essential to support findings. It must

have those characteristics to such an extent that in the setting made by the entire

record the trier may reasonably find in accordance with it after giving due

consideration to whatever else is shown both in opposition or in accord." Gooding

v. Willard, 209 F.2d 913, 916 (2d Cir. 1954).

SUMMARY OF ARGUMENT

In the disputed proceeding, DOE suspends a prior order accepting the more

efficient SEER 13 air conditioner standard and implements the less efficient SEER

12 standard. The EPCA requires energy conservation standards to " . . . be

designed to achieve the maximum improvement in energy efficiency . . . the

Secretary determines is technologically feasible and economically justified." 42

U.S.C. § 6295(o)(2)(A). DOE must concede that the SEER 13 standard is

"technologically feasible" as most manufacturers sell one or more of the 600

models meeting or exceeding the SEER 13 standard today. Because

"technological feasibility" cannot be disputed, the only issue is whether there is

12

EE-RM-STD-98-440 COMMENT 317

Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999). "[Substantial 

evidence] means such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion." Id. quoting Universal Camera Corp. v. NLRB, 

340 U.S. 474, 477 (1951). Substantial evidence "means mOre than evidenc.e 

which, considered by itself alone, would be sufficiently persuasive to induce the 

trier of fact to give it the credence and weight essential to support findings. It must 

have those characteristics to such an extent that in the setting made by the entire 

record the trier may reasonably find in accordance with it after giving due 

consideration to whatever else is shown both in opposition or in accord." Gooding 

v. Willard, 209 F.2d 913,916 (2d Cir. 1954). 

SUMMARY OF ARGUMENT 

In the disputed proceeding, DOE suspends a prior order accepting the more 

efficient SEER 13 air conditioner standard and implements the less efficient SEER 

12 standard. The EPCA requires energy conservation standards to " . . . be 

designed to achieve the maximum improvement in energy efficiency . . . the 

Secretary determines is tec1mo10gically feasible and economically justified." 42 

U.S.C. § 6295(0)(2)(A). DOE must concede that the SEER 13 standard is 

"technologically feasible" as most manufacturers sell one or more of the 600 

models meeting or exceeding the SEER 13 standard today. Because 

"technological feasibility" cannot be disputed, the only issue is whether there is 

12 
substantial evidence to justify DOE's reversal of its previous on-the-record

determination that the SEER 13 standard is "economically justified." NARUC

contends DOE's discussion of the impact of its rule changes on conservation and

reliability fails to rebut its original findings with respect to economic feasibility

and has no support in the record. {To avoid duplication, NARUC endorses and

adopts by reference all the arguments raised in Petitioners brief.} In its original

assessment of the record, DOE concluded SEER 13 was economically justified.

DOE's subsequent analysis obviously ignores its own earlier findings.

Whenever an agency "changes its course," it is "obligated to supply a reasoned

analysis for the change beyond that which may be required when an agency does

not act in the first instance." [CITE] The DOE SEER 12 opinion fails to provide

the needed "reasoned analysis" and ignores the substantial evidence presented by

numerous federal and State regulators that demonstrate the importance of energy

efficiency in energy system operations. In its original analysis, DOE estimated

that a 13 SEER standard will "save approximately 4.2 quads of energy over 25

years" or the equivalent of "all the energy consumed by nearly 26 million

American households in a single year.... In 2020, the standards will avoid the

construction of five 400 megawatt coal-fired plants and thirty-four 400 megawatt

gas-fired plants." 66 Fed. Reg. 7170, 7171 (January 22, 2001); JA-5549, 5551.

The revised standard significantly reduces these energy savings eliminating 1.4

13

EE-RM-STD-98-440 COMMENT 317

substantial evidence to justify DOE's reversal of its prevIOus on-the-record 

determination that the SEER 13 standard is "economically justified." NARUC 

contends DOE's discussion of the in1pact of its rule changes on conservation and 

reliability fails to rebut its original findings with respect to economic feasibility 

and has no support in the record. {To avoid duplication, NARUC endorses and 

adopts by reference all the arguments raised in Petitioners brief.} In its original 

assessment of the record, DOE concluded SEER 13 was economically justified. 

DOE's subsequent analysis obviously ignores its own earlier findings. 

Whenever an agency "changes its course," it is "obligated to supply a reasoned 

analysis for the change beyond that which may be required when an agency does 

not act in the first instance." [CITE] The DOE SEER 12 opinion fails to provide 

the needed "reasoned analysis" and ignores the substantial evidence presented by 

numerous federal and State regulators that demonstrate the importance of energy 

efficiency in energy system operations. In its original analysis, DOE estimated 

that a 13 SEER standard will "save approximately 4.2 quads of energy over 25 

years" or the equivalent of "all the energy consumed by nearly 26 million 

American households in a single year .... In 2020, the standards will avoid the 

construction of five 400 megawatt coal-fired plants and thirty-four 400 megawatt 

gas-fired plants." 66 Fed. Reg. 7170, 7171 (January 22, 2001); JA-5549, 5551. 

The revised standard significantly reduces these energy savings eliminating 1.4 

13 
quads of energy savings over 25 years, or the equivalent of all the energy

consumed by 9 million American households in a single year. This reduction in

the standard will require in 2020 the construction of almost twice as many

generation plants.

The prospect of eliminating such expansive savings is especially significant

when viewed against the backdrop of the impact of recent market disruptions and

climate extremes on the reliability of the United States' electricity. system.

Moreover, it appears DOE's basis for its recanting adoption of a 13 SEER standard

in favor of the 12 SEER standard is based squarely on Southern Company claims

that there is no direct relationship between peak demand growth and reduced

electric system reliability. 67 Fed. Reg. at 36392. JA7350-52. This conclusion

cannot be squared with DOE's statement in the same notice that "higher efficiency

standards for central air conditioners and heat pumps are expected to reduce

significantly the peak loads of electric systems in the future, thus enabling a

reduction in the number of new power plants and transmission lines required to

meet future demand. " Id. at 36392. JA-7351-52. As this Court has found, "an

agency decision that runs sharply against virtually all the ... evidence presented

and makes no specific finding as to the credibility of the claimant's otherwise

uncontroverted testimony" will not be supported. Williams v. Bowen, 859 F.2d

255, 256 (2d Cir. 1988). DOE's reasoning for adopting a 12 SEER standard is not

14

EE-RM-STD-98-440 COMMENT 317

quads of energy savmgs over 25 years, or the equivalent of all the energy 

consumed by 9 million American households in a single year. This reduction in 

the standard will require in 2020 the construction of almost twice as many 

generation plants. 

The prospect of eliminating such expansive savings is especially significant 

when viewed against the backdrop of the impact of recent market disruptions and 

climate extremes on the reliability of the United States' electricity system. 

Moreover, it appears DOE's basis for its recanting adoption ofa 13 SEER standard 

in favor of the 12 SEER standard is based squarely on Southern Company claims 

that there is no direct relationship between peak demand growth and reduced 

electric system reliability. 67 Fed. Reg. at 36392. JA7350-52. This conclusion 

call110t be squared with DOE's statement in the same notice that "higher efficiency 

standards for central air conditioners and heat pumps are expected to reduce 

significantly the peak loads of electric systems in the future, thus enabling a 

reduction in the number of new power plants and transmission lines required to 

meet future demand." Id. at 36392. JA-7351-52. As this Court has found, "an 

agency decision that runs sharply against virtually all the ... evidence presented 

and makes no specific finding as to the credibility of the claimant's otherwise 

uncontroverted testimony" will not be supported. Williams v. Bowen, 859 F.2d 

255, 256 (2d Cir. 1988). DOE's reasoning for adopting a 12 SEER standard is not 

14 
based on the substantial evidence presented on the effects of energy conservation

on reducing peak load and should thus be vacated.

ARGUMENT

DOE'S Finding That SEER 12 Is The Maximum Standard That Is

Technologically Feasible And Economically Justified Lacks Record Support.

I. A 12 SEER Standard Is Not the Maximum Improvement in Energy

Efficiency that is Technologically Feasible

Section 6295(o)(2)(A) of the Energy Policy and Conservation Act

("EPCA"), requires that any "new or amended energy conservation standard

prescribed by the Secretary under this section for [central air conditioners] shall be

designed to achieve the maximum improvement in energy efficiency ... which the

Secretary determines is technologically feasible and economically justified." 42

U.S.C. § 6295(o)(2)(A). A determination that a standard is "technologically

feasible and economically justified" must be based on substantial evidence. 42

U.S.C. § 6306(b)(2). In NRDC v. Herrington, the Court provides useful insights

on how DOE should detennine the maximum level of energy efficiency that is

technologically feasible and economically justified:

"[EPCA] establishes a clear decision-making procedure. DOE must

first identify, for all product types and classes, the maximum

improvement in energy efficiency that is technologically feasible. If a

standard at that level would be economically justified, DOE must set

the standard there. If a standard requiring the maximum

technologically feasible level would not be economically justified,

15

EE-RM-STD-98-440 COMMENT 317

based on the substantial evidence presented on the effects of energy conservation 

on reducing peak load and should thus be vacated. 

ARGUMENT 

DOE'S Finding That SEER 12 Is The Maximum Standard That Is 

Technologically Feasible And Economically Justified Lacks Record Support. 

L A 12 SEER Standard Is Not the Maximum Improvement in Energy 

Efficiency that is Technologically Feasible 

Section 6295( 0 )(2)(A) of the Energy Policy and Conservation Act 

("EPCA"), requires that any "new or amended energy conservation standard 

prescribed by the Secretary under this section for [central air conditioners] shall be 

designed to achieve the maximum improvement in energy efficiency ... which the 

Secretary determines is technologically feasible and economically justified." 42 

U.S.C. § 6295 (0)(2)(A). A detem1ination that a standard is "technologically 

feasible and economically justified" must be based on substantial evidence. 42 

U.S.C. § 6306(b )(2). In NRDC v. Herrington, the Court provides useful insights 

on how DOE should detennine the maximum level of energy efficiency that is 

technologically feasible and economically justified: 

"[EPCA] establishes a clear decision-making procedure. DOE must 

first identify, for . all product types and classes, the maximum 

improvement in energy efficiency that is technologically feasible. If a 

standard at that level would be economically justified, DOE must set 

the standard there. If a standard requiring the maximum 

technologically feasible level would not be economically justified, 

15 
DOE must set the standard at the highest level that is both

technologically feasible and economically justified. " NRDC v.

Herrington, 768 F.2d 1355, 1391-92 (D.C. Cir. 1986).

DOE must concede that the SEER 13 standard is "technologically feasible." SEER

technology has been available to manufacturers for at least 15 years and almost all

manufacturers produce one or more of the 600 models meeting or exceeding the

SEER 13 standard available for purchase today. Indeed, in the 12 SEER Rule,

DOE found that the maximum technologically feasible efficiency level for

residential central air conditioners is actually considerably higher than SEER 13.6

IL DOE Fails To Justify, Nor Does The Record Provide Evidence To

Conclude, That the Revised 12 SEER Standard Is the Maximum

Improvement in Energy Efficiency that is Economically Justified

Because "technological feasibility" cannot be disputed, the only issue this

Court must decide is whether there is substantial record evidence or an adequate

rationale provided to justify DOE's reversal of its previous on-the-record

determination that the SEER 13 standard is "economically justified." Again, as the

Herrington Court observed, the Act outlines a very specific procedure.

Specifically, EPCA requires that to determine if an air conditioner energy

efficiency standard is "economically justified:

6 Specifically, DOE found that SEER 18, with a corresponding maximum

Heating Seasonal Performance Factor ("HSPF") of 9.4 for residential heat pumps,

was "technologically feasible." 67 Fed. Reg. 36368, 36378 (May 23, 2002). 3A16

EE-RM-STD-98-440 COMMENT 317

DOE must set the standard at the highest level that is both 

technologically feasible and economically justified." NRDC v. 

Herrington, 768 F.2d 1355, 1391-92 (D.C. Cir. 1986). 

DOE must concede that the SEER 13 standard is "technologically feasible." SEER 

technology has been available to manufacturers for at least 15 years and almost all 

manufacturers produce one or more of the 600 models meeting or exceeding the 

SEER 13 standard available for purchase today. Indeed, in the 12 SEER Rule, 

DOE found that the maximUlTI technologically feasible efficiency level for 

residential central air conditioners is actually considerably higher than SEER 13.6 

II DOE Fails To Justify, Nor Does The Record Provide Evidence To 

Conclude,· That the Revised 12 SEER Standard Is the Maximum 

Improvement in Energy Efficiency that is Economically Justified. 

Because "technological feasibility" cannot be disputed, the only issue this 

Court must decide is whether there is substantial record evidence or an adequate 

rationale provided to justify DOE's reversal of its previous on-the-record 

determination that the SEER 13 standard is "economically justified." Again, as the 

Herrington Court observed, the Act outlines a very specific procedure. 

Specifically, EPCA requires that to determine if an air conditioner energy 

efficiency standard is "economically justified: 

6 Specifically, DOE found that SEER 18, with a corresponding maximum 

Heating Seasonal Perfom1ance Factor ("HSPF") of 9.4 for residential heat pumps, 

was "technologically feasible." 67 Fed. Reg. 36368, 36378 (May 23, 2002). JA16 
"... the Secretary shall determine whether the benefits of the standard

exceed its burdens by, to the greatest extent practicable, considering -

(I) the economic impact of the standard on the manufacturers and

on the consumers of the products subject to such standard;

(II) the savings in operating costs throughout the estimated average

life of the covered product in the type (or class) compared to

any increase in the price of, or in the initial charges for, or

maintenance expenses of, the covered products which are likely

to result from the imposition of the standard;

(III) the total projected amount of energy, or as applicable, water,

savings likely to result directly from the imposition of the

standard;

any lessening of the utility or the performance of the covered

products likely to result from the imposition of the standard;

(IV) the impact of any lessening of competition, as determined in

writing by the Attorney General, that is likely to result from the

imposition of the standard;

(V) the need for national energy and water conservation; and

(VI) other factors the Secretary considers relevant. 42 U.S.C. §

6295(o)(2)(B)(i)(I)-(VII).

In its issuance of the Final 13 SEER Rule, DOE outlined the framework for

its consideration of each of the previously listed factors.

NARUC will not duplicate the discussion in Petitioners' brief that clearly

demonstrates DOE's revised analysis of impacts on manufacturers is

unsubstantiated by the evidence. Nor will NARUC engage in a lengthy discussion

regarding DOE's flawed analysis regarding the impacts on consumers.' In keeping

with our pledge to the Court to avoid duplicative arguments, we will instead

simply adopt by reference all of those arguments pursuant to Federal Rules of

7 Indeed, NARUC specifically endorses and adopts by reference all of the

arguments presented in the Petitioner Brief at pp. 5 - 132.

17

EE-RM-STD-98-440 COMMENT 317

" ... the Secretary shall determine whether the benefits of the standard 

exceed its burdens by, to the greatest extent practicable, considering-

(1) the economic impact of the standard on the manufacturers and 

on the consumers of the products subject to such standard; 

(II) the savings in operating costs throughout the estimated average 

life of the covered product in the type (or class) compared to 

any increase in the price of, or in the initial charges for, or 

maintenance expenses of, the covered products which are likely 

to result from the in1position of the standard; 

(III) the total projected amount of energy, or as applicable, water, 

savings likely to result directly from the imposition of the 

standard; 

any lessening of the utility or the performance of the covered 

products likely to result from the imposition of the standard; 

(IV) the impact of any lessening of competition, as determined in 

writing by the Attorney General, that is likely to result from the 

imposition of the standard; 

(V) the need for national energy and water conservation; and 

(VI) other factors the Secretary considers relevant. 42 U.S.C. § 

6295( 0 )(2)(B)(i)(I)-(VII). 

In its issuance of the Final 13 SEER Rule, DOE outlined the framework for 

its consideration of each of the previously listed factors. 

NARUC will not duplicate the discussion in Petitioners' brief that clearly 

demonstrates DOE's revised analysis of impacts on manufacturers is 

unsubstantiated by the evidence. Nor will NARUC engage in a lengthy discussion 

regarding DOE's flawed analysis regarding the impacts on consumers.7 In keeping 

with our pledge to the Court to avoid duplicative arguments, we will instead 

simply adopt by reference all of those arguments pursuant to Federal Rules of 

7 Indeed, NARUC specifically endorses and adopts by reference all of the 

arguments presented in the Petitioner Brief at pp. 5 - 132. 

17 
Appellate Procedure Rule 28(1). However, because of NARUC's members' unique

qualifications and experience with respect to conservation policy and the

interwoven effects of such energy conservation on system reliability, we will

provide some additional insight as to why DOE's discussion of factors six

(conservation impact) and seven (reliability impacts) does not rebut its original

findings with respect to economic feasibility and has no support in the record.

For example, in DOE's explanation of factor six "Need of the Nation to

Conserve Energy" the agency stated, "the Secretary recognizes that energy

conservation benefits the Nation in several important ways. Enhanced energy

efficiency improves the Nation's energy security, strengthens the economy, and

reduces the environmental impacts of energy production." 67 Fed. Reg. 36368,

36379 (January 21, 2001); JA-7303-04. Under the "Other Factors" factor,

"[DOE] considered the potential improvement to the reliability of the electrical

system." Id.

DOE's consideration of all these factors must be based on substantial

evidence presented during the public comment process.g In its original assessment

8 See, NRDC v. Herrington,768 F.2d 1355)( EPCA expressly provides that the

substantial evidence standard guides review). Moreover, "[w]hen reviewing the

policy judgments made by the Secretary, including those predictive and difficult

judgment calls the Secretary is called upon to make, [this Court] will subject them

to searching scrutiny to ensure that they are neither arbitrary nor irrational - in

other words, [the reviewing Court] must determine whether `the decision is based

18

EE-RM-STD-98-440 COMMENT 317

Appellate Procedure Rule 28(i). However, because ofNARUC's members' unique 

qualifications and expenence with respect to conservation policy and the 

interwoven effects of such energy conservation on system reliability, we will 

provide some additional insight as to why DOE's discussion of factors Sl;X 

(conservation impact) and seven (reliability impacts) does not rebut its original 

findings with respect to economic feasibility and has no support in the record. 

For example, in DOE's explanation of factor six "Need of the Nation to 

Conserve Energy" the agency stated, "the Secretary recognizes that energy 

conservation benefits the Nation in several important ways. Enhanced energy 

efficiency improves the Nation's energy security, strengthens the economy, and 

reduces the environmental impacts of energy production." 67 Fed. Reg. 36368, 

36379 (January 21, 2001); JA-7303-04. Under the "Other Factors" factor, 

"[DOE] considered the potential improvement to the reliability of the electrical 

system." Id. 

DOE's consideration of all these factors must be based on substantial 

evidence presented during the public comment process. 8 In its original assessment 

8 See, NRDC v. Herrington,768 F.2d 1355)( EPCA expressly provides that the 

substantial evidence standard guides review). Moreover, "[w]hen reviewing the 

policy judgments made by the Secretary, including those predictive and difficult 

judgment calls the Secretary is called upon to make, [this Court] will subject them 

to searching scrutiny to ensure that they are neither arbitrary nor irrational - in 

other words, [the reviewing Court] must determine whether 'the decision is based 

18 
of that record, DOE concluded in the issuance of the Final 13 SEER Rule in

January 2001 that SEER 13 was economically justified because: "the benefits of

energy savings, the projected amount of avoided power plant capacity or

improvement in system reliability that accompanies expected reduction in peak

demand, consumer life cycle cost savings, national net present value increase and

emission reductions resulting from the standards outweigh the burdens." 66 Fed.

Reg. at 7196. JA-5576

DOE's analysis finding the 12 SEER standard as the "maximum

improvement" that is "economically justified" obviously ignores its own earlier

findings. Whenever an agency "changes its course," it is "obligated to supply a

reasoned analysis for the change beyond that which may be required when an

agency does not act in the first instance."9 The DOE SEER 12 opinion fails to

provide the needed "reasoned analysis" and ignores the substantial evidence

presented by numerous federal and State government regulators, including the U.S.

Environmental Protection Agency, and private and public electric utilities, that

demonstrates the importance of energy efficiency in energy system operations.

on a consideration of the relevant factors and whether there has been a clear error

of judgment."' Herrington at 1369, citing California v. Watt, 668 F.2d 1290, 1302

(D.C.Cir.1981)(quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

4021 416 (1971)(Emphasis added).

9 Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Ins.

Co., 463 U.S. 29, 42 (1983).

19

EE-RM-STD-98-440 COMMENT 317

of that record, DOE concluded in the issuance of the Final 13 SEER Rule in 

January 2001 that SEER 13 was economically justified because: "the benefits of 

energy savings, the projected amount of avoided power plant capacity or 

improvement in system reliability that accompanies expected reduction in peale 

demand, consumer life cycle cost savings, national net present value increase and 

emission reductions resulting from the standards outweigh the burdens." 66 Fed. 

Reg. at 7196. JA-5576 

DOE's analysis finding the 12 SEER standard as the "maximum 

improvement" that is "economically justified" obviously ignores its own earlier 

findings. Whenever an agency "changes its course," it is "obligated to supply a 

reasoned analysis for the change beyond that which may be required when an 

agency does not act in the first instance."g The DOE SEER 12 opinion fails to 

provide the needed "reasoned analysis" and ignores the substantial evidence 

presented by numerous federal and State governlnent regulators, including the U.S. 

Environmental Protection Agency, and private and public electric utilities, that 

demonstrates the importance of energy efficiency in energy system operations. 

on a consideration of the relevant factors and whether there has been a clear error 

ofjudgment.'" Herrington at 1369, citing California v. Watt, 668 F.2d 1290,1302 

(D.C.Cir.1981)(quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 

402,416 (1971)(Emphasis added). 

9 Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Ins. 

Co., 463 U.S. 29, 42 (1983). 

19 
In its original analysis, DOE estimated that a 13 SEER standard will "save

approximately 4.2 quads of energy over 25 years" or the equivalent of "all the

energy consumed by nearly 26 million American households in a single year.... In

2020, the standards will avoid the construction of five 400 megawatt coal-fired

plants and thirty-four 400 megawatt gas-fired plants." 66 Fed. Reg. 7170, 7171

(January 22, 2001). JA-5551

The revised standard significantly reduces these energy savings.

Specifically, the new standard eliminates 1.4 quads of energy savings over 25

years, or the equivalent of all the energy consumed by approximately 9 million

American households in a single year. By revising the standard down, DOE has,

by its own estimates, changed the standard in a way that will require in 2020 the

construction of almost twice as many generation plants. Specifically, the drop to

the SEER 12 standard will require the construction of two additional 400 megawatt

coal-fired plants and seventeen additional 400 megawatt gas-fired plants. 67 Fed.

Reg. 36368, 36377 (May 23, 2002). JA-7296.

The prospect of eliminating such expansive savings are especially significant

when viewed against the backdrop of the impact of recent market disruptions and

climate extremes on the reliability of the United States' electricity system. As

DOE noted in the Final 13 SEER Rule:

20

EE-RM-STD-98-440 COMMENT 317

In its original analysis, DOE estimated that a 13 SEER standard will "save 

approximately 4.2 quads of energy over 25 years" or the equivalent of "all the 

energy consumed by nearly 26 million An1erican households in a single year .... In 

2020, the standards will avoid the construction of five 400 megawatt coal-fired 

plants and thirty-four 400 megawatt gas-fired plants." 66 Fed. Reg. 7170, 7171 

(January 22, 2001). JA-5551 

The revised standard significantly reduces these energy savIngs. 

Specifically, the new standard eliminates 1.4 quads of energy savings over 25 

years, or the equivalent of all the energy consumed by approximately 9 million 

American households in a single year. By revising the standard down, DOE has, 

by its own estimates, changed the standard in a way that will require in 2020 the 

construction of almost twice as many generation plants. Specifically, the drop to 

the SEER 12 standard will require the construction of two additional 400 megawatt 

coal-fired plants and seventeen additional 400 megawatt gas-fired plants. 67 Fed. 

Reg. 36368, 36377 (May 23, 2002). JA-7296. 

The prospect of eliminating such expansive savings are especially significant 

when viewed against the backdrop of the iInpact of recent market disruptions and 

climate extremes on the reliability of the United States' electricity system. As 

DOE noted in the Final 13 SEER Rule: 

20 
"Recent summertime electric power outages in various regions of our

country resulted in disruption of many peoples' lives and businesses.

... While central air conditioning accounts for about 10 percent of

residential electricity consumption, it can account for several times

this amount during peak hours on hot summer days, when electricity

reliability is most strained.... peak load reductions are critical given

that the conditions leading to grid instability can occur well before

peak demand even equals supply." 66 Fed. Reg. at 7173. JA-5553.

Because of concerns about such outages, the Secretary of Energy, at

NARUC's 1999 Summer Committee Meetings, pledged "to investigate several

recent major electric power disturbances as part of a six-point plan to improve the

reliability of the U.S. electric power system." See, "Report of the U.S. Department

of Energy's Power Outage Study Team: Findings and Recommendations to

Enhance Reliability from the Summer of 1999," March 2000, JA-2163. According

to DOE, the recommendations contained in the report led the Secretary to put this

rulemaking on the fast track and to advance the publication of [the Final 13 SEER

Rule]." 66 Fed. Reg. 7170, 7173 (January 22, 2001).

This team recommended increasing the energy efficiency of central air

conditioners as one key method for policy makers to quickly enhance reliability.

Id.

"The increased adoption of energy efficiency measures can enhance

electric system reliability by reducing demand growth in areas

experiencing shortages in electric generation or constraints in

electric transmission or distribution. Programs to stimulate

adoption of energy efficient technologies and practices can provide

more rapid relief to areas with fast-growing demand. Further, they

21

EE-RM-STD-98-440 COMMENT 317

"Recent summertime electric power outages in various regions of our 

country resulted in disruption of many peoples' lives and businesses. 

. .. While central air conditioning accounts for about 1 ° percent of 

residential electricity consumption, it can account for several times 

this amount during peak hours on hot summer days, when electricity 

reliability is most strained .... peak load reductions are critical given 

that the conditions leading to grid instability can occur well before 

peak demand even equals supply." 66 Fed. Reg. at 7173. JA-5553. 

Because of concerns about such outages, the Secretary of Energy, at 

NARUC's 1'999 Summer Committee Meetings, pledged "to investigate several 

recent major electric power disturbances as part of a six-point plan to improve the 

reliability of the U.S. electric power system." See, "Report of the U.S. Department 

of Energy's Power Outage Study Tean1: Findings and Recommendations to 

Enhance Reliability from the Summer of 1999," March 2000, JA-2163. According 

to DOE, the recommendations contained in the report led the Secretary to put this 

rulemaking on the fast track and to advance the publication of [the Final 13 SEER 

Rule]." 66 Fed. Reg. 7170,7173 (January 22, 2001). 

This team recommended increasing the energy efficiency of central aIr 

conditioners as one key method for policy makers to quickly enhance reliability. 

"The increased adoption of energy efficiency measures can enhance 

electric system reliability by reducing demand growth in areas 

experiencing shortages in electric generation or constraints in 

electric transmission or distribution. Programs to stimulate 

adoption of energy efficient technologies and practices can provide 

more rapid relief to areas with fast-growing demand. Further, they 

21 
can do so with fewer negative impacts than would occur during the

construction of new generation, transmission, and distribution

facilities. Such programs might be especially helpful in areas

where growth in electric demand is high; ...Technologies and

practices that reduce loads during times of peak demand, such as

high-efficiency air conditioning and lighting equipment, are

especially valuable. JA-2163, 2178. (emphasis added).

As part of its study reflecting the need for national energy conservation

measures, the team, focused on power outages and depressed voltages on Long

Island in the summer of 1999 and found: "[tlraditional methods (., construction

of new transmission and central generation) for supplying electric power to load

pockets were not able to keep up with load growth.... There has been local

resistance to the construction of new, higher-voltage transmission lines and new

generating stations in the area." Id. By contrast, the maximum permissible

economically feasible energy efficiency standards, can do much more to alleviate

load pockets in areas such as Long Island and other parts of the country.

The need for immediate implementation of the maximum permissible

efficiency standards is not projected to end anytime soon. As NRDC pointed out

in December 1, 2000 comments, since the record of this proceeding closed in

January of 2001: " ...rates for large residential electricity users in California

increased 40%; throughout the four states of the Pacific Northwest, rates went up

typically by 31%; Massachusetts and Pennsylvania have also experienced hikes in

electricity prices far beyond those consistent with what was projected by DOE."

22

EE-RM-STD-98-440 COMMENT 317

can do so with fewer negative impacts than would occur during the 

construction of new generation, transmission, and distribution 

facilities. Such programs might be especially helpful in areas 

where growth in electric demand is high; .. , Technologies and 

practices that reduce loads during times of peak demand, such as 

high-efficiency air conditioning and lighting equipment, are 

especially valuable. JA-2163, 2178. (emphasis adOed). 

As part of its study reflecting the need for national energy conservation 

measures, the team, focused on power outages and depressed voltages on Long 

Island in the summer of 1999 and found: "[t]raditional methods (~., construction 

of new transmission and central generation) for supplying electric power to load 

pockets were not able to keep up with load growth .... There has been local 

resistance to the construction of new, higher-voltage transmission lines and new 

generating stations in the area." Id. By contrast, the maximum permissible 

economically feasible energy efficiency standards, can do much more to alleviate 

load pockets in areas such as Long Island and other parts of the country. 

The need for immediate implementation of tp.e maximum permissible 

efficiency standards is not projected to end anytime soon. As NRDC pointed out 

in December 1, 2000 comments, since the record of this proceeding closed in 

January of 2001: " ... rates for large residential electricity users in California 

increased 40%; throughout the four states of the Pacific Northwest, rates went up 

typically by 31 %; Massachusetts and Pennsylvania have also experienced hikes in 

electricity prices far beyond those consistent with what was projected by DOE." 

22 
JA-4720. The comments filed by American Council for an Energy-Efficient

Economy ("ACEEE") builds on the NRDC statement. Specifically ACEEE

highlights data from the North American Electric Reliability Council ("NERC") to

outline the overall potential impact of conservation on system reliability. JA

4969.10 According to ACEEE, NERC projects that between "now and 2020,

approximately 370,000 MW of new generation capacity will be needed to maintain

1999 capacity margins. Thus air conditioner standards can provide more than 15%

of needed capacity over the next 20 years." JA-4969. As referenced above, a

significant fraction of the percentage "gains" in capacity is lost under the revised

SEER 12 standard.

The Texas Public Utility Commission, then chaired by the current head of

the Federal Energy Regulatory Comnssion Pat Wood, also commented on how a

13 SEER standard reduces demand and improve system reliability: "On July 23,

1999, the Entergy electric system (Entergy) implemented emergency curtailment

of retail customers when system demands exceeded the available power supply.

These curtailments affected 557,354 retail customers in Louisiana, Texas,

Arkansas, and Mississippi. Updated central air-conditioning standards, effective in

to Since its formation in 1968, the North American Electric Reliability Council

(NERC) has operated as a voluntary organization to promote bulk electric system

reliability and security - one dependent on reciprocity, peer pressure, and the

mutual self-interest of all those involved. Through this model, NERC has helped to

make the North American electric system the most reliable system in the world.

23

EE-RM-STD-98-440 COMMENT 317

JA-4720. The comments filed by American Council for an Energy-Efficient 

Economy ("ACEEE") builds on the NRDC statement. Specifically ACEEE 

highlights data from the North American Electric Reliability Council ("NERC") to 

outline the overall potential impact of conservation on system reliability. JA4969. 10 According to ACEEE, NERC projects that between "now and 2020, 

approximately 370,000 MW of new generation capacity will be needed to maintain 

1999 capacity margins. Thus air conditioner standards can provide more than 15% 

of needed capacity over the next 20 years." JA-4969. As referenced above, a 

significant fraction of the percentage "gains" in capacity is lost under the revised 

SEER 12 standard. 

The Texas Public Utility Commission, then chaired by the current head of 

the Federal Energy Regulatory Commission Pat Wood, also commented on how a 

13 SEER standard reduces demand and improve system reliability: "On July 23, 

1999, the Entergy electric system (Entergy) implemented emergency curtailment 

of retail customers when system demands exceeded the available power supply. 

These curtailments affected 557,354 retail customers in Louisiana, Texas, 

Arkansas, and Mississippi. Updated central air-conditioning standards, effective in 

10 Since its formation in 1968, the North American Electric Reliability Council 

(NERC) has operated as a voluntary organization to promote bulk electric system 

reliability and security - one dependent on reciprocity, peer pressure, and the 

mutual self-interest of all those involved. Through this model, NERC has helped to 

make the North American electric system the most reliable system in the world. 

23 
1990, would have cut the 1999 peak demand in the Entergy service area by more

than 1,260 MW, thus eliminating the capacity shortage that occurred in 1999." See,

the Comments of the Public Utility Commission of Texas filed in DOE EE-RN-97-

500 (Nov. 29, 2000), JA--4661. Similarly, Austin, Texas Mayor Kirk Watson

quantified the impact of DOE's adoption of a 12 instead of a 13 SEER standard.

The City of Austin owns and operates its serving electric utility. According to

Mayor Watson, the revision sacrifices, just for Texas, "about 135 MW of avoided

peak growth per year, totaling more than 2,000 MW by 2020; annual bill savings

that would grow to $200 million per year by 2020 (annual savings grow as people

buy new air conditioners); annual electric savings that would reach more than

2,700 gigawatt hours by 2020; and significant reductions in power plant pollution

including NOx. Comments of Mayor Kirk Watson filed in DOE EE-RN-97-500

(Nov. 29, 2000), JA-4697. Cities like Austin, are particularly concerned about

energy efficiency because the city owns the electric utility.

The Alliance to Save Energy also quantified the impact of the change of the

efficiency standards on reliability. JA-4935-36. The Alliance and other sponsors

of the Appliance Standards Awareness Project (ASAP) produced a report in July

2000 called "Staying Cool: How Energy-Efficient Air Conditioners Can Prevent

Blackouts, Cut Pollution, and Save Energy." Id. The Reported documented peak

load reduction impacts of the SEER 13 standard level.

24

EE-RM-STD-98-440 COMMENT 317

1990, would have cut the 1999 peak demand in the Entergy service area by more 

than 1,260 MW, thus eliminating the capacity shortage that occurred in 1999." See, 

the Comments of the Public Utility Commission of Texas filed in DOE EE-RN-97-

500 (Nov. 29, 2000), JA--4661. Similarly, Austin, Texas Mayor Kirk Watsop 

quantified the impact of DOE's adoption of a 12 instead of a 13 SEER standard. 

The City of Austin owns and operates its serving electric utility. According to 

Mayor Watson, the revision sacrifices, just for Texas, "about 135 MW of avoided 

peak growth per year, totaling more than 2,000 MW by 2020; annual bill savings 

that would grow to $200 million per year by 2020 (annual savings grow as people 

buy new air conditioners); annual electric savings that would reach more than 

2,700 gigawatt hours by 2020; and significant reductions in power plant pollution 

including NOx." Comments of Mayor Kirk Watson filed in DOE EE-RN-97-500 

(Nov. 29, 2000), JA-4697. Cities like Austin, are particularly concerned about 

energy efficiency because the city owns the electric utility. 

The Alliance to Save Energy also quantified the impact of the change of the 

efficiency standards on reliability. JA-4935-36. The Alliance and other sponsors 

of the Appliance Standards Awareness Project (ASAP) produced a report in July 

2000 called "Staying Cool: How Energy-Efficient Air Conditioners Can Prevent 

Blackouts, Cut Pollution, and Save Energy." Id. The Reported documented peak 

load reduction impacts of the SEER13 standard level. 

24 
"[The Report] showed that raising the standard from SEER 12 to

SEER 13 with median EER will save 16,700 MW of additional

peak power demand, equal to the generation of 33 large power

plants (or more than a hundred typical pecker units). While it is

true that many other factors contribute to peak demand, residential

air conditioning is a major contributor to peak loads. It is also true

that power outages are typically triggered by small shortfalls in

capacity relative to peak load; in California this year, it was

reported that shortfalls as small as 100 MW triggered reliability

problems." Id.

While some commenters, such as the Electric Edison Institute, suggested

that the effect of annual air conditioner energy use as a proportion of total energy

use is, while measurable, insignificant, see comments at JA-4165, its analysis fails

to take into account how air conditioners are disproportionately on at the time of

peak demand. The American Council for an Energy-Efficient Economy (ACEEE)

presented evidence that shows the effect of residential air conditioning on peak

demand. See, JA-4968 ("A recent data collection and analysis effort by utilities in

New Jersey estimates that residential air conditioning accounts for about 26% of

peak demand in the state.")

DOE's basis for recanting its adoption of a 13 SEER standard in favor of the

12 SEER standard is apparently based squarely on Southern Company claims that

there is no direct relationship between peals demand growth and reduced electric

system reliability. 67 Fed. Reg. 36392. JA-7350. This conclusion cannot be

squared with DOE's statement in the salve notice that "higher efficiency standards

25

EE-RM-STD-98-440 COMMENT 317

"[The Report] showed that raising the standard from SEER 12 to 

SEER 13 with median EER will save 16,700 MW of additional 

peak power demand, equal to the generation of 33 large power 

plants (or more than a hundred typical peaker units). While it is 

true that many other factors contribute to peak demand, residential 

air conditioning is a major contributor to peak loads. It is also true 

that power outages are typically triggered by small shortfalls in 

capacity relative to peak load; in California this year, it was 

reported that shortfalls as small as 100 MW triggered reliability 

problems." Id. 

While some commenters, such as the Electric Edison Institute, suggested 

that the effect of annual air conditioner energy use as a proportion of total energy 

use is, while measurable, insignificant, see comments at JA-4l65, its analysis fails 

to take into account how air conditioners are disproportionately on at the time of 

peak demand. The American Council for an Energy-Efficient Economy (ACEEE) 

presented evidence that shows the effect of residential air conditioning on peak 

demand. See, JA-4968 ("A recent data collection and analysis effort by utilities in 

New Jersey estimates that residential air conditioning accounts for about 26% of 

peak demand in the state.") 

DOE's basis for recanting its adoption of a 13 SEER standard in favor of the 

12 SEER standard is apparently based squarely on Southern Company claims that 

there is no direct relationship between peak demand growth and reduced electric 

system reliability. 67 Fed. Reg. 36392. JA-7350. This conclusion cannot be 

squared with DOE's statement in the Saine notice that "higher efficiency standards 

25 
for central air conditioners and heat pumps are expected to reduce significantly the

peak loads of electric systems in the future, thus enabling a reduction in the

number of new power plants and transmission lines required to meet future

demand. Electric system planners will take these efficiency improvements and

other factors affecting future electricity demand into account when estimating how

many new plants and transmission lines will be required to meet future demand,

while maintaining or improving system reliability." Id.

As this Court has found, "an agency decision that runs sharply against

virtually all the ... evidence presented and makes no specific finding as to the

credibility of the claimant's otherwise uncontroverted testimony" will not be

supported. Williams v. Bowen, 859 F.2d 255, 256 (2d Cir. 1988). DOE's

reasoning for adopting a 12 SEER standard is not based on the substantial evidence

presented on the effects of energy conservation on reducing peak load and should

thus be vacated.

26

EE-RM-STD-98-440 COMMENT 317

for central air conditioners and heat pumps are expected to reduce significantly the 

peak loads of electric systems in the future, thus enabling a reduction in the 

number of new power plants and transmission lines required to meet future 

demand. Electric system planners will take these efficiency improvements and 

other factors affecting future electricity demand into account when estimating how 

many new plants and transmission lines will be required to meet future demand, 

while maintaining or improving system reliability." Id. 

As this Court has found, "an agency decision that runs sharply against 

virtually all the ... evidence presented and makes no specific finding as to the 

credibility of the claimant's otherwise uncontroverted testimony" will not be 

supported. Williams v. Bowen, 859 F.2d 255, 256 (2d Cir. 1988). DOE's 

reasoning for adopting a 12 SEER standard is not based on the substantial evidence 

presented on the effects of energy conservation on reducing peak load and should 

thus be vacated. 

26 
CONCLUSION

For the foregoing reasons, NARUC urges this Court to ( 1) vacate the DOE's

withdrawal of the Final SEER 13 rule, (2) vacate the SEER 12 rule, and (3)

reinstate the Final SEER 13 Rule as the current amended energy efficiency

standard under 42 U.S.C. § 6295.

Dated: September 27, 2002

Respectfully submitted,

National Association of Regulatory

Utility Commissioners i

James Bradford Ramsay

General Counsel

Sharla M. Barklind

Assistant General Counsel

1101 Vermont Ave., NW, Suite 200

Washington, DC 20005

202-898-1350

27

EE-RM-STD-98-440 COMMENT 317

CONCLUSION 

For the foregoing reasons, NARUC urges this Court to (1) vacate the DOE's 

withdrawal of the Final SEER 13 rule, (2) vacate the SEER 12 rule, and (3) 

reinstate the Final SEER 13 Rule as the current amended energy efficiency 

standard under 42 U.S.C. § 6295. 

Dated: September 27, 2002 

BY: 

27 

Respectfully submitted, 

National Association -of Regulatory 

Utility Commissioners • /} 

~11.J)~~ J ames Bradford Ramsay 

General Counsel 

Sharla M. Barklind 

Assistant General Counsel 

1101 Vermont Ave., NW, Suite 200 

Washington, DC 20005 

202-898-1350 
CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure,

the undersigned counsel hereby certifies that this brief complies with the typevolume limitation of Rule 32(a)(7)(B). As measured by the word processing

system used to prepare this brief, there are 6,765 words in the brief.

28

EE-RM-STD-98-440 COMMENT 317

CERTIFICATE OF COMPLIANCE 

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, 

the undersigned counsel hereby certifies that this brief complies with the typevolume limitation of Rule 32(a)(7)(B). As measured by the word processing 

system used to prepare this brief, there are 6,765 words in the brief. 

28 
CERTIFICATE OF SERVICE

I hereby certify that on this 27th day of September, 2002, I caused to be

served copies of the foregoing "BRIEF OF INTERVENORS NATIONAL

ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS" via first

class mail upon the parties listed on the Service List attached below.

Sharla M. Barkl' d

ELIOT SPITZER

Attorney General, State of New York

PETER H. LEHNER

D. SCOTT BASSINSON

Assistant Attorneys General

New York State Department of Law

The Capitol

Albany, New York 12224

Tel: (518) 473-5843

Attorney for Petitioner State of New York

KATHERINE KENNEDY, Esq.

NATURAL RESOURCES DEFENSE COUNCIL, INC.

40 West 20`h Street

New York, New York 10011

Tel: (212) 727-4463

Attorney for Petitioners Natural Resources Defense Council, Inc. and Public

Utility Law Project and for Petitioner-hatervenor Consumer Federation of America

BILL LOCKYER

Attorney General of the State of California

RICHARD M. FRANK

Chief Assistant Attorney General, Public Rights Division

California Attorney General's Office

1300 "I" Street, P. O. Box 944255

Sacramento, California 94244-2550

(916) 445-9555

Attorney for Petitioner State of California

29

EE-RM-STD-98-440 COMMENT 317

CERTIFICATE OF SERVICE 

I hereby certify that on this 2ih day of September, 2002, I caused to be 

served copies of the foregoing "BRIEF OF INTERVENORS NATIONAL 

ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS" via first 

class mail upon the parties listed on the Service List attached below. 

ELIOT SPITZER 

Attorney General, State of New York 

PETER H. LEHNER 

D. SCOTT BASSINSON 

Assistant Attorneys General 

New York State Department of Law 

The Capitol 

Albany, New York 12224 

Tel: (518) 473-5843 

Attorney for Petitioner State of New York 

KATHERINE KENNEDY, Esq. 

NATURAL RESOURCES DEFENSE COUNCIL, INC. 

40 West 20th Street 

New York, New York 10011 

Tel: (212) 727-4463 

Attorney for Petitioners Natural Resources Defense Council, Inc. and Public 

Utility Law Project and for Petitioner-Intervenor Consumer Federation of America 

BILL LOCKYER 

Attorney General of the State of Cali fomi a 

RICHARD M. FRANK 

Chief Assistant Attorney General, Public Rights Division 

California Attorney General's Office 

1300 "I" Street, P. O. Box 944255 

Sacramento, California 94244-2550 

(916) 445-9555 

Attorney for Petitioner State of California 

29 
RICHARD BLUMENTHAL

Attorney General

State of Connecticut

MARK KINDALL

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

(860) 808-5250

Attorney for Petitioner State of Connecticut

WILLIAM H. SORRELL

Attorney General, State of Vermont

S. MARK SCIARROTTA

Assistant Attorney General

Office of the Attorney General

109 State Street

Montpelier, Vermont 05609-1001

(802) 828-3185

Attorney for Petitioner State of Vermont

G. STEVEN ROWE

Attorney General, State of Maine

PAUL STERN

Deputy Attorney General

GERALD D. REID

Assistant Attorney General

Department of the Attorney General

State House Station #6

Augusta, ME 04333-0006

(207) 626-8800

Attorney for Petitioner-Intervenor State of Maine

DAVID SAMSON

Attorney Gcneral, State of New Jersey

HOWARD GEDULDIG

Deputy Attorney General

Richard J. Hughes Justice Complex

25 Market Street, P.O. Box 093

Trenton, NJ 08625-0093

(609) 633-8109

Attorney for Petitioner-Intervenor State of New Jersey

30

EE-RM-STD-98-440 COMMENT 317

ruCHARDBLUMENTHAL 

Attorney General 

State of Connecticut 

MARK KINDALL 

Assistant Attorney General 

55 Elm Street 

P.O. Box 120 

Hartford, CT 06141-0120 

(860) 808-5250 

Attorney for Petitioner State of Connecticut 

WILLIAM H. SORRELL 

Attorney General,State of Vermont 

S. MARK SCIARROTTA 

Assistant Attorney General 

Office of the Attorney General 

109 State Street 

Montpelier, Vermont 05609-1001 

(802) 828-3185 

Attorney for Petitioner State ofVennont 

G. STEVEN ROWE 

Attorney General, State of Maine 

PAUL STERN 

Deputy Attorney General 

GERALD D. REID 

Assistant Attorney General 

Department of the Attorney General 

State House Station #6 

Augusta, ME 04333-0006 

(207) 626-8800 

Attorney for Petitioner-Intervenor State of Maine 

DAVID SAMSON 

Attorney General, State of New Jersey 

HOWARD GEDULDIG 

Deputy Attorney General 

Richard J. Hughes Justice Complex 

25 Market Street, P.O. Box 093 

Trenton, NJ 08625-0093 

(609) 633-8109 

Attorney for Petitioner-Intervenor State of New Jersey 

30 
FRANKIE SUE DEL PAPA

Attorney General of the State of Nevada

TIMOTHY HAY

Chief Deputy Attorney General

Bureau of Consumer Protection

1000 E. William St., Ste. 200

Carson City, NV 89701

(775) 687-6300

Attorney for Petitioner State of Nevada

PHILIP T. MCLAUGHLIN

Attorney General of the State of

New Hair-.pshire

AMY B. MILLS, Attorney

Environmental Protection Bureau

33 Capitol Street

Concord, NH 03301

( 603) 271-3679

Attorney . or Intervenor State of New Hampshire

SHELDCN WHITEHOUSE

Attorney General of Rhode Island

TRICIA K. JEDELE, Special Assistant

Attorney General

150 Soutll Main Street

Provide:, Rhode Island 02903

(401) 274-4400

Attorney :or Intervenor State of Rhode Island

31

EE-RM-STD-98-440 COMMENT 317

FRANKIE SUE DEL PAPA 

Attorney General of the State of Nevada 

TIMOTHY HAY 

Chief Deputy Attorney General 

Bureau of Consumer Protection 

1000 E. William St., Ste. 200 

Carson City, NY 89701 

(775) 687-6300 

Attorney for Petitioner State of Nevada 

PHILIP T. MCLAUGHLIN 

Attorney General of the State of 

New Han",pshire 

AMY B. MILLS, Attorney 

Environn1ental Protection Bureau 

33 Capitol Street 

Concord, NH 03301 

( 603) 27l-3679 

Attorney or Intervenor State of New Hampshire 

SHELDeN WHITEHOUSE 

Attorney General of Rhode Island 

TRICIA K. JEDELE, Special Assistant 

Attorney General 

150 Soutll Main Street 

Provide:) c, Rhode Island 02903 

(401) 274-4400 

Attorney ;or Intervenor State of Rhode Island 

31 
THOM.i\:: F. REILLY

AttorneyGneral of the Commonwealth of Massachusetts

FREDERICK AUGENSTERN,

WILLIAM L. PARDEE,

Assistar ' Attorneys General

200 Portland Street

Boston, ' A 02114

(617) 7/_ -2200

Attornc or Petitioner- Intervenor Commonwealth of Massachusetts

CHARLES HARAK, ESQ.

NATIC . * AL CONSUMER LAW CENTER

77 Sun, .,- 2r Street, 10th Flr.

Bostoi, .. A 02111

(617) 5 8010

Attom, jr Petitioners-Intervenors Massachusetts Union of Public Housing

Tenants and Texas Ratepayers' Organization to Save Energy

JAME: COMEY

United tes Attorney

Southc- )istrict of New York

WENL CHWARTZ

AssistL. united States Attorney

U.S. A -aey's Office

Southe. District of New York

100 Ci. -ch Street, 19th Floor

New _^', k, New York 10007

(718) -608

Attorr, )r Respondents Spencer Abraham

and U; States Department of Energy

32

EE-RM-STD-98-440 COMMENT 317

THOM/\:) F. REILLY 

Attornev General of the Commonwealth of Massachusetts -' 

FREDERICK AUGENSTERN, 

WILLIAM L. PARDEE, 

Assistan' Attorneys General 

200 Portland Street 

Boston, ~ :A 02114 

(617) 7 _ -2200 

Attornc ,'or Petitioner- Intervenor Commonwealth of Massachusetts 

CHARLES HARAK, ESQ. 

NATIC .. AL CONSUMER LA W CENTER 

77 Sum.~' ~r Street, 10th FIr. 

BostOll_. A 02111 

(617)5 SOlO 

Attorn, . Jf Petitioners-Intervenors Massachusetts Union of Public Housing 

Tenants ,md Texas Ratepayers' Organization to Save Energy 

JAME~ .'. COMEY 

United. .tes Attorney 

Southc- )istrict of New York 

WENL;CHWARTZ 

Assist 

U.S.A 

Southe 

100 Ci. 

NewY, 

(718) . 

Jnited States Attorney 

-aey's Office 

District of New York 

-ell Street, 19th Floor 

k, New York 10007 

-5608 

AttoTI,} 

andU] 

Jf Respondents Spencer Abraham 

.~ States Department of Energy 

32 
JOHN %,. HODGES

WILE`' REIN & FIELDING LLP

1776 Y Street NW

Washi ;ton, D.C. 20006

(202) 9-7000

Attorn s for Respondent-Intervenor Air-Conditioning and Refrigeration Institute

33

EE-RM-STD-98-440 COMMENT 317

JOHN \. HODGES 

WILEv REIN & FIELDING LLP 

1776 :F ~treet NW 

Wasbi ~ton, D.C. 20006 

(202) ~ 9-7000 

Attorn s for Respondent-Intervenor Air-Conditioning and Refrigeration Institute 

33