### EE.RM/STD- T 

### o

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, STATE OF CALIFORNIA, STATE OF CONNECTICUT, STATE OF \ER\M1NT. STATE OF .Ml.AINE. Plaintiffs, -against- Civil Action No. 01 CV-5499 (LTS)(DCF) SPENCER ABRAHAM, AS SECRETARY \AMEN\;]I 

### .1-) 

### .:. l OF THE UNITED STATES DEPARTMENT SUPPLE .NE\N-F OF ENERGY, and UNITED STATES COMPLAINT FOR DEPARTMENT OF ENERGY, :DECLARATORY AND INJUNCTIVE RELIEF Defendants. PRELIMINARY STATEMENT 1. PlaintiffStates, representing over 50 million people ofthe United States, challenge several unlawful final rules ofthe United States Department ofEnergy (DOE), by which it is attempting to replace and revise downward aFinal Rule it issued under the previous administration that established cost-effective, technically feasible and environmentally beneficial energy efficiency standards forresidential air conditioners and heat pumps. This Final Rule, entitled "Energy Conservation Program for Consumer Products: Central Air Conditioners and Heat Pumps Energy Conservation Standards,'.' ("Final Air Conditioner and Heat Pump Conservation Rule" or "the Final Conservation Rule") was published in the Federal Register as a final rule on January 22, 2001, 66 Fed. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OFNEW YORK STATE OF NEW YORK, STATE OF CALIFOR.NIA, STATE OF C01\TNECTICUT, STATE OF VERt'-.10!\T. ST.,<\**T~QLf\1/d~E.** _ Plaintiffs,-againstSPENCERABRAHAM, AS SECRETARY OF THE UNITED STATESDEPARTMENT OF ENERGY, and UNITED STATES DEPARTMENT OF ENERGY, Defendants. Civil Action No, 01 CV-5499 (LTS)(DCF)**:~\):L**

### t-::-J)**Ll2::\~** I)**.~,LJYPJJ;~LE "~L\**  L**COl\1PLAI~T** FOR DECLARATORY AND INJUNCTIVE RELIEF

PRELIMINARY STATEMENT 1. PlaintiffStates, representing over 50 millionpeople ofthe United States, challenge several unlawful final rules ofthe United States Department ofEnergy (DOE), by which it is attempting to replace and revise downward a Final Rule it issued under the preyious administration that established cost-effective, technically feasible and emironmentally beneficial energy efficiency standards for residential air conditioners and heat pumps. This Final Rule, entitled "Energy Conservation Program for Consumer Products: Central Air Conditioners and Heat Pumps Energy Conservation Standards,'.' ("Final Air Conditioner and Heat Pump Conservation Rule" or "the Final Conservation Rule") was published in the Federal Register as a final rule on January 

### 22, 2001, 66 Fed.

### E6E-RWM/STD-98-440 -_;

# 2 t -2- Reg. 7170, pursuant to a statutory mandate and deadline established by the Energy Policy 

### and Conservation Act (EPCA), 42 U.S.C. §6295(d). 2. The effective date ofthe Final Air Conditioner and Heat Pump Conservation Rule was February 21, 2001. See 66 Fed.Reg. 7170. Almost immediately after the new Administration assumed office, DOE

- without providing forpublic notice and comment as is required under the Administrative Procedure Act (APA), 5U.S.C. §§ 553 et seq., and without any validjustification

- issued what it purports to be additional final rules that have delayed and suspended this effective date. See 66 Fed. Reg. 8745 (Feb. 2, 2001) (final rule delaying the effective date ofthe Final Air Conditioner and Heat Pump Conservation Rule for sixty days) (attached as Exhibit A); 66 Fed. Reg. 20191 (April 20, 2001) (final rule further delaying the Rule's effective date) (attached as Exhibit B). 3. In the second ofthese final rules, DOE also announced that it will propose weaker energy efficiency standards to replace those in the Final Air Conditioner and Heat Pump Conservation Rule. 66 Fed. Reg. 20191 (April 20, 2001). This attempt to roll back the energy efficiency standards directly violates the governing statute, which explicitly prohibits DOE from amending appliance energy efficiency standards by "decreas[ing]
... the minimum required energy efficiency[] ofa covered product." 42 U.S.C. § 6295(o)(1). On July 5,2001. DOE did propose to "withdraw" the Final Conservation Rule, and "substitule" a lower enerv efficicncy standard. See 66 Fed. Re-. 38822 uly 25. 201i(attached as Exhibit 

### 4. Thus, at the same time the new Administration isrepeating its concern for the adequacy ofthe energy supply, and discussing the possibility ofbuilding over one 

### • 

### -2- Reg. 7170, pursuant to a statutory mandate and deadline**eStabli~hed** by the Energy Policy I
....**\.,~** and Conservation Act (EPCA), 42 U.S.c. § 6295(d). 2. The effective date ofthe Final Air Conditioner and Heat Pump Conservation Rule was February 21,2001. See 66 Fed.Reg. 7170. Almost immediately after the new Administration assumed office, DOE

- without providing for public notice and comment as is required underthe Administrative Procedure Act (APA), 5 U.S.c. §§ 553 et**~,** and without any validjustification

- issued what it purports to be additional final rules that have delayed and suspended this effective date. See 66 Fed. Reg. 8745 (Feb. 2, 2001) (final rule delaying the effective date ofthe Final Air Conditioner and Heat Pump Conservation Rule for sixty days) (attached as Exhibit A); 66 Fed. Reg. 20191 (April 20, 2001) (final rule further delaying the Rule's effective date) (attached as Exhibit B). 3. In the second ofthese final rules, DOE also announced that it will propose weaker energy efficiency standards to replace those in the Final Air Conditioner and Heat Pump Conservation Rule. 66 Fed. Reg. 20191 (April 20, 2001). This attempt to roll back the energy efficiency standards directly violates the governing statute, which explicitly prohibits DOE from amending appliance energy efficiency standards by "decreas[ing]
... the minimum required energy efficiency[] ofa covered product." 42 U.S.c. § 6295(0)(1). On luI\' 25 2001. DOE did 1'0 )ose to "withdraw" the Final

4. Thus, at the same time the ne\\' Administration is repeating its concern for the adequacy ofthe energy supply, and discussing the possibility ofbuilding over one

### EE-RM/STD-98-440 - + 

### +0 -3- 

### thousand new electricity generating power plants, it is taking steps to reduce the energy efficiency of certain appliances

- a reduction that will increase the utilization and cost of electricity and resulting air and water pollution generated by electric power plants. 5. Plaintiffs urge this Court to (a) issue a declaratoryjudgment pursuant to 28 U.S.C. § 2201(a) that DOE is barred by 42 U.S.C. § 6295(o)(1) from revising, amending or changing in any way the Final Conservation Rule to weaken or lower the energy efficiency standards for central air conditioners and heat pumps established in the Final Conservation Rule. ij l

### tidingl the "\\'ithld il\, i of, e_ 1c -inl.! 

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. nd.! 

### the "subslilition" 

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### l-ncde-il Rcisc. terand enjoin DOE from taking any such action; and (b) hold unlawful, vacate, enjoin and set aside DOE's two final rules delaying the effective date of the Final Conservation Rule. PARTIES 6. Plaintiff State ofNew York is asovereign state and brings this action on behalfofitselfand, as parens patriae, onbehalf ofthe people ofthe State ofNew York. 7. PlaintiffState ofCalifornia is a sovereign state and brings this action on behalf ofitselfand, as parens patriae. on behalfofthe people ofthe State ofCalifornia. 8. PlaintiffState ofConnecticut is asovereign state and brings this action on behalfofitselfand, as parens patriae, onbehalf ofthe people ofthe State ofConnecticut. 9. PlaintiffState ofVermont is aso\verelun state and hins this action on blici fof itself and. as l)arcnEs

### patriac. on behalf ofthe ico]pl ofthe State ofVermont. 10. P'lainilf State ofMnine is a;sov\crci( nlct! anid bnis this 

### Ctio011 bchlifo Isltand. ll aspan. on beha'ill of h co'le ofthe Slate of M

### 1 ainc. 

### EE-RM/STD·98-440

...

## /~tfO -3- thousand new electricity generating powerplants, it is taking steps to reduce the energy efficiency ofcertain appliances - a reduction that will increase the utilization and cost of electricity and resulting air and waterpollution generated by electric powerplants. 5. Plaintiffs urge this Court to (a) issue a declaratoryjudgment pursuant to 

### 28 U.s.c. § 2201(a) that 

### DOE is barredby 

### 42 U.S.c. § 

### 6295(0)(1) from revising, amending or changing in any way the Final Conservation Rule to weaken or lower the energy efficiency standards for central air conditioners and heat pumps established in the Final Conservation**Rule,.in~Jltd~l]gtJ2('.·>lthlll::l-"\;lI·' (~r·Jhl'-XLn:ll.(()n'-;l'n:lli})I~.Rtll\:,.dll(1**  t

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.'}hl.l'.'-;Jit**lIJL()ll".I~JL~t~)L~ll(,:~~J.Q.\Y £LS.I}~~~)**  __**(:fIil~I':'llC.LS**t;!l1Qcl**L~L .(~~);L~l)<)U** 11
..IIUI1.l'.JLib'**~-,,"i,,~{.(~lJj.J::"~lL~X'll.J~c~i.s1.'-:'.L.and** enjoin 

### DOE from taking any such action; and (b) hold unlawful, vacate, enjoin and set aside 

### DOE's two final rules delaying the effective date of the Final Conservation Rule. PARTIES 6. PlaintiffState ofNew York is a sovereign state and brings this action on bcllalfofitselfand, as parens patriae, on behalfofthe people ofthe State ofNew York. 7. PlaintiffState ofCalifornia is a sovereign state and brings this action on behalfofitselfand, as parens patriae, onbehalfofthe people ofthe State ofCalifornia. 8. PlaintiffState ofConnecticut is a sovereign state and brings this action on behalfofitselfand, as parenspatriae, onbehalfofthe people ofthe State ofConnecticut. 9. 

## fl <1iIIIiff**S19.1g.L\~~QJlQ}lUS-.?...iO**\cI.eiQ11 state**~**n**dJl[Ll}g;iJbi5~a**ctiQlL 011 

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c**1.!~IJL0LiJs~lJ~~ll'-~.~ J).Q~(;** **l))J?£IUji!LC)Ll_b~ ~llL~)r** JII cJ2g.Q]2**L~.2 flIl£~ ~.t:H(;** ..QLVc!:!1l.9ll.t,

### EE-RM/STD-98440 -fy' -4- 11. On behalfofthe people ofthe plaintiffStates as well as on behalfof themselves as consumers ofelectricity, the plaintiff States have strong environmental. public health and consumer interests in the prompt implementation ofthe Final Conservation Rule. The Final Conservation Rule will save energy, lower energy bills, reduce air pollution emissions and related public health impacts, reduce the likelihood of electricity shortages and blackouts, and help to avoid some ofthe need to build new power plants. DOE's attempts to delay the effective date ofthe Final Conservation Rule have harmed plaintiffs by delaying these benefits. The plaintiff States believe that 'mplementation ofall reasonably feasible energy conservation measures is an essential component ofany long-term solution to America's energy needs. In addition, DOE's planned revision ofthe Final Conservation Rule to reduce the energy efficiency standards will adversely affect all citizens in plaintiff States, in economic aswell as environmental and public health areas. 12. Defendant Spencer Abraham is Secretary ofDOE. As such, he is responsible for administration ofthat agency in accordance with EPCA and the APA. DOE's headquarters are located at 1000 Independence Ave., SW, Washington, DC 20585. 13. Defendant DOE is the agency responsible for implementation ofEPCA. JURISDICTION AND VENUE 14. This Court hasjurisdiction over the matters raised pursuant to the APA, 5 U.S.C. §706, and 28 U.S.C. §§ 1331 (federal question) and 2201 (declaratory judgment). 

## · 

# . EE-RM/STD-98-440

## --1F~

## lfO -4- 11. Onbehalfofthe people ofthe plaintiffStates as well as on behalfof themselyes as consumers ofelectricity, the plaintiffStates have strong environmentaL public health and consumerinterests in the prompt implementation ofthe Final Conservation Rule. The Final Conservation Rule will save energy, lower energy bills, reduce air pollution emissions and related public health impacts, reduce the likelihood of electricity shortages and blackouts, and help to avoid some ofthe need to build nev,' powerplants. DOE's attempts to delay the effective date ofthe Final Conservation Rule have ham1ed plaintiffs by delaying these benefits. The plaintiffStates believe that .mplementation ofall reasonably feasible energy conservation measures is an essential component ofany long-tem1 solution to America's energy needs. In addition, DOE's planned revision ofthe Final Conservation Rule to reduce the energy efficiency standards will adversely affect all citizens in plaintiffStates, in economic as well as environmental and public health areas. 12. Defendant SpencerAbraham is Secretary ofDOE. As such, he is responsible for administration ofthat agency in accordance with EPeA and the APA. DOE's headquarters are located at 1000 Independence Ave., SW, \Vashington, DC 20585. 13. Defendant DOE is the agency responsible for implementation ofEPCA. JURlSDICTION AND VENUE 14. This Courthasjurisdiction overthe matters raised pursuant to the APA, 5 U.S.c. § 706, and 28 U.S.c. §§ 1331 (federal question) and 220] (declaratoryjUdgment).

### EE-RM/STD-98-440 -a- 

# '
-5- 

### 15. Venue in this Court is proper pursuant to 28 U.S.C. § 1391(e) because the defendants are an officer and an agency ofthe United States and one ofthe plaintiffs resides in this district.

STATEMENT OF FACTS COMMON TO ALL CLAIMS A. The Importance ofAppliance Energy Efficiency Standards i6. Electricity generation in the United States causes a wide range ofadverse envirDnmen:al impacts, including air pollution emissions that threaten public health, contribute to worldwide climate change, and cause acid rain. The impacts ofelectricity generation also include water pollution, including toxic mercury pollution and disruption offish and other aquatic ecosystems. The production offuels for electricity generation also has major adverse environmental effects. Huge amounts ofelectricity are wasted through inefficient usage, which, in turn, causes unnecessary electricity generation and pollution. This waste is particularly acute and damaging during hours ofhot weather peak electricity demand, when air conditioners are operating at their highest level ofoutput. 17. According to DOE, central air conditioning

- performed by air conditioners or heat pumps which both air condition in warm weather and provide heat in cool weather

- generally accounts for about 10 percent ofresidential electricity consumption, and several times that amount during peak hot summer days. See 66 Fed. Reg. at 7173. The Final Conservation Rule would ultimately reduce the nation's total annual electricity use by approximately two percent and peak demand by asignificantly larger amount. Id. 

### · ' 

### EE-RM/STO-98-440-1/>:J,

# 'f0
-5- 15. Venue in this Court is properpursuantto 28 U.s.c. § 1391(e) because the defendants are an officer and an agency ofthe United States and one ofthe plaintiffs resides in this district.

STATEMENT OF FACTS COMMO]\ TO ALL CLAIMS A. !heImportance ofAppliance Energv Efficiencv Standards 16. Electricity generation in the United States causes a wide range ofadverse**envini1men~a1** impacts, including air pollution emissions that threaten public health, contriJute to worldwide climate change, and cause acid rain. The impacts ofelectricity generatio'1 also include water pollution, including toxic mercury pollution and disruption offish and other aquatic ecosystems. The production offuels for electricity generation also has major adverse environmental effects. Huge amounts ofelectricity are wasted through inefficient usage, which, in turn, causes unnecessary electricity generation and pollution. This waste is particularly acute and damaging during hours ofhot weather peak electricity demand, when air conditioners are operating at theirhighest level ofoutput. 17. Accordingto DOE, central air conditioning

- performed by air conditioners orheat pumps whichboth air condition in warm weather andprovide heat in cool weather

- generally accounts for about 10 percent ofresidential electricity consumption, and several times that amount during peakhot summer days. See 66 F.ed. Reg. at 7173. The Final Conservation Rule would ultimately reduce the nation's total annual electricity use by approximately two percent and peak demand by a significantly larger amount. Id.

### EE-RM/STD-98-440-/-94' -6- 

### 18. Appliance energy efficiency standards address these problems by creating cost-effective, technically feasible minimum efficiency standards that mustbe met by appliance manufacturers. Increasing appliance efficiency levels reduces electricity waste and electricity demand and reduces air pollution and other environmental problems associated with electricity generation, while providing consumers with the same level of service from their appliances. An efficient air conditioner, for instance, cools ahouse as well as a less efficient one, while using considerably less electricity. 19. Appliance energy efficiency standards also have important consumer benefits. Because energy efficient products use less electricity, customers' electricity bills can be substantially reduced over the lifetime ofthe product. For example, the Final Conservation Rule, once implemented, is expected to save California consumers at least S103 to 207 million in energy costs over the 18-year average equipment lifetime, as compared to the pre-existing standard. Moreover, appliance efficiency standards reduce peak summer electric demand, which, ideally, can bring down the price ofelectricity for all consumers, especially when electricity is sold in awholesale power market, as in California and New York. Under those circumstances, relatively small decreases in peak demand can dramatically reduce the market price for power at that time. 20. Appliance efficiency standards also help consumers, and low-income
consumers inparticular, because they help to address the "split incentive" problem that people who rent apartments and homes often experience: landlords have an economic incentive to buy the cheapest appliances without regard to energy efficiency, in those circumstances in which the landlord provides appliance but the tenant pays the electricity bills. As aresult, in the absence of strong appliance efficiency standards, tenants end up " ' 

### EE-RM/STD-98-440-ffa

# 'flJ -6- 18. Appliance energy efficiency standards address these problemsby creating cost-effective, technically feasible minimum efficiency standards that must be metby appliance manufacturers. Increasing appliance efficiency levels reduces electricity waste and electricity demand and reduces airpollution and other environmental problems associated with electricity generation, while providing consumers with the same level of service from their appliances. An efficient air conditioner, for instance, cools a house as well as a less effi"ient one, while using considerably less electricity. 19. Appliance energy efficiency standards also have important consumer benefits. Because energy efficient products use less electricity, customers' electricity bills can be substantially reduced overthe lifetime ofthe product. For example, the Final Conservation Rule, once implemented, is expected to save California consumers at least S 1 03 to 207 million in energy costs overthe IS-year average equipment lifetime, as compared to the pre-existing standard. Moreover, appliance efficiency standards reduce peak summer electric demand, which, ideally, can bring down the price ofelectricity for all consumers, especially when electricity is sold in a wholesale powermarket, as in California and Nev,' York. Under those circumstances, relatively small decreases in peak demand can dramatically reduce the market price for power at that time. 20. Appliance efficiency standards also help consumers, and low-income
consumers in particular, becausethey help to address the "split incentive"problem that people who rent apartments and homes often experience: landlords have an economic incentive to buy the cheapest appliances without regard to energy efficiency, in those circumstances in which the landlordprovides appliance but the tenant pays the electricity bills. As a result, in the absence ofstrong appliance efficiency standards, tenants end up

### EE-RM/STD-98-440 -4 O -7- with unnecessarily high electric bills. This is a particularly acute problem in large urban
areas such as New York City orLos Angeles, where many residents live in multi-family housing. This "split incentive" problem also arises where a developer builds and sells finished homes and thus has no incentive to install efficient air conditioners. Appliance efficiency standards are also particularly helpful to moderate and low-income consumers because these consumers spend more on energy as apercentage ofincome than other income groups, and therefore vill benefit more from lower energy bills due to more efficient appliances. 21. Finally, appliance energy efficiency standards help consumers by making efficient appliances the norm, rather thar, the exception. Standards ensure that consumers will find efficient appliances readily available in stores and will not have to pay a premium for them. Consumers can be assured any appliance they buy will meet minimum efficiency standards. B. EPCA's Mandates Regarding the Appliance Standard 22. The National Appliance Energy Conservation Act, Pub. L. 100-12, was signed in 1987 by President Ronald Reagan to amend EPCA. EPCA's congressional purposes include "to conserve energy supplies through energy conservation programs" and "to provide for improved energy efficiency of... major appliances." 42 U.S.C. § 6201(4), (5). EPCA was further amended in 1988 and 1992. Pub, L. 100-357; Pub. L. 102-486. 23. EPCA as amended (hereafter EPCA or the Act), 42 U.S.C. §§ 6291-6309, established deadlines and standards for developing and revising energy efficiency standards for consumer products, including household appliances such as waterheaters, 

# '. ' 

### EE-RM/STD-98-440-i/

# A'fo

-7- with unnecessarily high electric bills. This is a particularly acute problem in large urban
areas such as New York City or Los Angeles, where manyresidents live in multi-family housing. This "split incentive"problem also arises¥,'here a developerbuilds and sells finished homes and thus has no incentive to install efficient air conditioners. Appliance efficiency standards are also particularly helpful to moderate and low-income consumers because these consumers spenr: more on energy as a percentage ofincome than other income groups, and therefore v'ilj benefit more from lower energybills due to more efficient appliances, 21. Finally, appliance: enerK.' efficiency standards help consumers by making efficient appliances the norm, rather than the exception. Standards ensure that consumers will find efficient appliances readily available in stores and will not have to pay a premium for them, Consumers can be assured any appliance they buy will meet minimum efficiency standards. B. EPCA's Mandates Regarding the Appliance Standard 22. The National Appliance Energy Conservation Act, Pub. L. 100-12, was signed in 1987 by President Ronald Reagan to amend EPCA. EPClI..'s congressional purposes include "to conserve energy supplies through energy conservation programs" and "toprovide for improved energy efficiency of
... major appliances." 42 U.S.c. § 6201(4), (5). EPCA was further amended in 1988 and 1992. Pub, L. 100-357; Pub. 

### L. 102-486. 23. EPCA as amended (hereafter EPCA orthe Act), 42 U.s.c. 

### §§ 6291-6309, established deadlines and standards for developing and revising energy efficiency standards for consumerproducts, including household appliances such as waterheaters,

### EE-RM/STD-98-440':

-8- 

### clothes washers, and central air conditioners and heat pumps. 42 U.S.C. § 6292. It established specific initial mandatory efficiency ratings for covered appliances and also set a schedule for the amendment and strengthening ofthese efficiency ratings. The Act mandated specific criteria for the amendment ofappliance efficiency standards. The Act requires DOE to ensure that any amended standard "shall be designed to achieve the maximum improvement in energy efficiency
. ..

### .vhich the Secretary determines is 

### technologically feasible and economicallyjl stified " Id. at §6295(o)(2)(A) (emphasis added). Significantly, the Act also provides that "[tChe Secretary may not prescribe any amended standard" that "decreases the minimum required energy efficiency[] ofa covered product." 42 U.S.C. § 6295(o)(1) (emphasis added). 24. With respect to efficiency standards for central air conditioners and heat pumps, EPCA set forth athree-step process. First, the Act itselfestablished initial standards for central air conditioners and heat pumps for all products manufactured after January 1, 1993. Second, the Act required DOE to publish afinal rule to determine whether these initial efficiency standards should be amended, and to publish the amended rule by January 1, 1994. 42 U.S.C. § 6295(d)(3)(A). Third, the Act required DOE to determine whether further amendments to the standards were required by January 1, 2001. 42 U.S.C. § 6295(d)(3)(B). 25. DOE uses aSeasonal Energy Efficiency Ratio (SEER) to measure the' energy efficiency for the seasonal cooling performance ofcentral air conditioners and heat pumps. In addition, the Heating Seasonal Performance Factor (HSPF) is DOE's
measure ofenergy efficiency for the seasonal heating performance ofheat pumps. The higher the number, the more efficient the appliance. The Act established the initial 

### EE_RM/STO-98-4404:J,

# tfO

-8- clothes washers, and central air conditioners and heatpumps. 42 U.S.c. § 6292. It established specific initial mandatory efficiency ratings for covered appliances and also set a schedule for the amendment and strengthening ofthese efficiency ratings. The Act mandated specific criteria for the amendment ofappliance efficiency standards. The Act requires DOE to ensure that any amended standard "shall be designed to achieve the maximum improvement in energy efficienC'!_._._._'vhich the Secretary detemlines is technolorrically feasible and economicallv 

## itstifitQ " 

### liL at § 6295(0)(2)(A) (emphasis added). Significantly, the Act also provides th'1t "[(he Secretary may not prescribe any amended standard" that "decreases the minimum reljrired energy efficiency[J ofa covered product." 42 U.s.c. § 6295(0)(1) (emphasis added). 24. With respect to efficiency standards for central air conditioners and heat pumps, EPCA set forth a three-step process. First, the Act itselfestablished initial standards for central air conditioners and heat pumps for all products manufactured after January 1, 1993. Second, the Act required DOE to publish a final rule to detemline whether these initial efficiency standards should be amended, and to publish the amended rule by January 1, 1994. 42 U.S.c. § 6295(d)(3)(A). Third, the Act required DOE to detemline whether further amendments to the standards were required byJanuary I, 2001. 42 U.S.c. § 6295(d)(3)(B). 25. DOEuses a Seasonal Energy Efficiency Ratio (SEER) to measure the' energy efficiency for the seasonal cooling performance ofcentral air conditioners and heat pumps. In addition, the Heating Seasonal Perfomlance Factor (HSPF) is DOE's
measure ofenergy efficiency for the seasonal heatingperformance ofheat pumps. The higher the number, the more efficient the appliance. The Act established the initial

### EE-RM/STD-98-440----W) -9- 

### efficiency standard at 10 SEER for central air conditioners and for the cooling performance ofheat pumps and 6.8 HSPF for the heating performance ofheat pumps. 26. As set forth below, DOE has been woefully slow in keeping up with EPCA's mandates. DOE did not complete the second statutorily required step, not publishing the Final Air Conditioner and Heat Pump Conservation Rule until January 22, 2001, seven years after the deadline Congress mandated for the first amendment of EPCA's initial air conditioner and heat pump efficiency standards. DOE has not even embarked on the third step ofthe air conditioner and heat pump efficiency standard setting process required by EPCA. C. Rulemaking Requirements Under Federal Law 27. The APA requires agencies ofthe United States to provide notice and comment concerning rulemaking. 5 U.S.C. §§ 551(5); 553(b) and (c). Section 551(5) defines rulemaking as "fonnulating, amending or repealing arule." 5U.S.C. § 551(5). Section 553(b) provides that "[g]eneral notice ofproposed rule making shall be published in the Federal Register
.... " 5U.S.C. § 553(b). Section 553(c) provides that "[a]fter 

### notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through the submission ofwritten data, views, or arguments with or without opportunity for oral presentation." 5U.S.C. § 553(c). 28. The only exceptions to the notice and comment requirement for rulemakings are for "interpretive rules, general statements ofpolicy, or rules ofagency organization, procedure or practice: or when the agency for good cause finds (and incorporates the finding and a briefstatement ofreasons therefor in the rules issued) that 

### EE-RM/STD-98-44a-#J,

# '10
-9- efficiency standard at 10 SEER for central air conditioners and for the cooling perfom1ance ofheat pumps and 6.8 HSPF for the heating perfonnance ofheat pumps. 26. As set forth below, DOE has been woefully slo\\' in keeping up with EPCA's mandates. DOE did not complete the second statutorily required step, not publishing the Final Air Conditioner and Heat Pump Conservation Rule until January 22, 2001, seven years after the deadline Congress mandated for the first amendment of EPCA's initial air conditioner and heat pump efficiency sandads. DOE has not even embarked on the third step ofthe air conditioner and heat J),lmp tfficiency standard setting process required by EPCA. C. Rulemaking Requirements Under Federal Law 27. The APA requires agencies ofthe United States to provide notice and comment concerning rulemaking. 5 U.s.c.**§~** 551(5); 553(b) and (c). Section 551(5) defines rulemaking as "fonnulating, amending orrepealing a rule." 5 U.s.c. § 551 (5). Section 553(b) provides that "[gJeneral notice ofproposed rule making shall be published in the Federal Register
...." 5 U.S.c. 

### § 553(b). Section 553(c) provides that "[aJfter notice required by this section, the agency shall give interested persons an opportunity to participate in the rule makingthrough the submission ofwritten data, views, or arguments with or without opportunity for oral presentation." 5 U.S.c. § 553(c). 28. The only exceptions to the notice and comment requirement for rulemakings are for "interpretive rules, general statements ofpolicy, orrules ofagency organization, procedure orpractice: orwhen the agency for good cause finds (and incorporates the finding and a briefstatement ofreasons therefor in the rules issued) that

### EE-RM/STD-98-4404-1 V -10- 

### notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5U.S.C. §553(b)(A), (B). 29. The APA further provides that "[t]he required publication or service ofa substantive rule shall be made not less than 30 days before its effective date" with certain exceptions. 5U.S.C. §553(d). 30. The only exceptions to the 30-day publication requirement are for "(1) a substantive rule which grants orrecognizes an exemption or relieves a restriction; (2) interpretive rules and statements ofpolicy; or (3) as otherwise providec by the agency for good cause found and published with the rule." 5U.S.C. §553(d). 31. The APA further provides that the effective date ofa rule can be postponed "[w]hen an agency finds thatjustice so requires
... pendingjudicial review." 5 U.s.C. §705. 32. The APA empowers areviewing court to: hold unlawful and set aside agency action, findings, and conclusions found to be

- (A) arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law; * * * 

### (C) in excess ofstatutoryjurisdiction, authority, or limitations, or short ofstatutory right; (D) without observance ofprocedure required by law .... 

### 5U.S.C. §706(2)(A), (C), (D). D. The Final Air Conditioner and Heat Pump Conservation Rule 33. DOE's rulemaking process for establishing amended air conditioner and heat pump efficiency standards took place over a seven-year period. DOE first published 

### EE-RM/STD-98-440

# --:j
..**~ ~f)**  -10- notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 U.S.c. 

### § 553(b)(A), (B). 29. The APA further provides that "[t]herequired publication or service ofa substantive rule shall be made not less than 30 days before its effective date" with certain exceptions. 5 U.S.c. § 553(d). 30. The only exceptions to the 30-day publication requirement are for "(1) a substantive rule which grants orrecognizes an exemption orrelieves a restrirtion; (2) interpretive rules and statements ofpolicy; or (3) as otherwise providec.**~y** tlw agency for good cause found and published \Iv'ith the rule." 5 U.S.c. § 553(d). 31. The APA further provides that the effective date ofa rule can be postponed "[vV']hen an agency finds thatjustice so requires
... pendingjudicial review." 5 U.S.c. § 705. 32. The APA empowers a reviev,'ing court to: hold unlawful and set aside agency action, findings, and conclusions found to be

- (A) arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law; 

## * * 

## * (C) in excess ofstatutoryjurisdiction, authority, or limitations, or short ofstatutory right; (D) without observance ofprocedure required by law
.... 5 U.S,c. §706(2)(A), (C), (D). D. TheFinal Air Conditioner and Heat Pump Conservation Rule 33. DOE's rulemaking process for establishing amended air conditionerand heat pump efficiency standards took place over a seven-yearperiod. DOE first published

### EE.RM/STD-98-440- t 

# 0
-11-
an Advance Notice ofProposed Rulemaking (ANOPR) stating its intent to revise the EPCA's initial air conditioner and heat pump efficiency standards on September 8, 1993. On November 24, 1999, DOE published a Supplemental ANOPR. On October 5, 2000, DOE proposed an amended rule for air conditioners and heat pumps. Through the New York State Energy Research and Development Authority, a New York public benefit corporation created by statute, see N.Y. Public Auth. Law, tit. 9,New York participated in the development of,and provided comments regarding, the Final Conservation Rule. 34. On January 22, 2001, DOE published the Final Conservation Rule. 66 Fed. Reg. 7170-7200 (Jan. 22, 2001). See Exhibit C. The Final Conservation Rule amends the existing appliance energy efficiency standards by raising them to 13 SEER for central air conditioners and to 13 SEERi7.7 HSPF for heat pumps (cooling and heating performance respectively), applicable to products manufactured for sale in the United States as ofJanuary 23, 2006. Id. at 7170-71. The January 22, 2001 notice stated that the "effective date ofthis rule is February 21, 2001." 66 Fed. Reg. at 7170. The Final Conservation Rule increases energy efficiency standards for central air conditioners and heat pumps by 30% over pre-existing standards. While air conditioners and heat pumps meeting these more efficient standards are already commercially available and comprise approximately 14% ofthe market, the Final Conservation Rule insures that all such products will meet these standards. 35. DOE found that the Final Conservation Rule would have a number of significant energy savings and environmental and consumer benefits. DOE found that: The standards will provide benefits to the nation. DOE estimates the standards will save approximately 4.2 quads [quadrillion British thermal units (Btu)] ofenergy over 25 years (2006 through 2030). This is EE-RM/STD-98-440-

# tr'.

# ~if{)
-11-
an AdvanceNotice ofProposed Rulemaking (ANOPR) stating its intent to revise the EPCA's initial air conditioner and heat pump efficiency standards on September 8,1993. On November 24, 1999, DOE published a Supplemental ANOPR. On October 5, 2000, DOEproposed an amended rule for air conditioners and heat pumps. Through the New York State Energy Research and Development Authority, a New York public benefit corporation createdby statute, see N.Y. Public Auth. Law, tit. 9, New York participited in the development of, and provided comments regarding, the Final Conservation Rule. 34. On January 22, 2001, DOE published the Final Conservation Rule. 615 Fed. Reg. 7170-7200 (Jan. 22, 2001). See Exhibit C. The Final Conservation Rule amends the existing appliance energy efficiency standards by raising them to 13 SEER for central air conditioners and to 13 SEER/7.7 HSPF for heat pumps (cooling and heating performance respectively), applicable to products manufactured for sale in the United States as ofJanuary 23, 2006. Id. at 7170-71. The January 22, 200I notice stated that the "effective date ofthis rule is February 21,2001." 66 Fed. Reg. at 7170. The Final Conservation Rule increases energy efficiency standards for central air conditioners and heat pumps by 30% over pre-existing standards. While air conditioners and heat pumps meeting these more efficient standards are already commercially available and comprise approximately 14% ofthe market, the Final Conservation Rule insures that all such products will meet these standards. 35. DOE found that the Final Conservation Rule would have a number of significant energy savings and environmental and consumerbenefits. DOE found that: The standards will providebenefits to the nation. DOE estimates the standards will save approximately 4.2 quads [quadrillion British thermal units (Btu)] ofenergy over 25 years (2006 through 2030). This is

## EE-RMISTD-9O8-440 

# _- 

# 94 -12- equivalent to all the energy consumed by nearly 26 million households in a single year. We also estimate this standard will have a net benefit to the nation's consumers of$1billion over the same period. In 2020, the standards will avoid the construction offive 400 megawatt coal-fired plants and thirty-four 400 megawatt gas-fired plants. These energy savings will result in cumulative greenhouse gas emission reductions of approximately 33 million metric tons (Mt) ofcarbon, or an amount equal to that produced by approximately 3million cars every year. Additionally, air pollution will be reduced by the elimination of approximately 94 thousand metric tons ofnitrous oxides (NOx) from 2006 through 2020.
66 Fed. Reg. at 7171 (emphasis added). E. The Department ofEnergy's Abrupt About-Face 36. Just days after publishing the Final Conservation Rule, having already made extensive findings with respect to the environmental, energy saving and consumer benefits ofthe Final Conservation Rule, DOE set in motion an attempt to delay implementation ofthe Final Conservation Rule and weaken its standards. 37. On January 24, 2001, four days after the inauguration ofthe new President, a memorandum from Assistant to the President and Chief of StaffAndrew H. Card, Jr. ("the Card Memo"), dated January 20, 2001. was published in the Federal Register. See Exhibit D. The Card Memo directed heads ofexecutive departments and agencies to, "[w]ith respect to regulations that have been published in the OFR [Office of the Federal Register] buthave not taken effect, temporarily postpone the effective date of the regulations for 60 days." Id. at 

### ¶3. However, the Card Memo specifically excludes from this directive "any regulations promulgated pursuant to statutory orjudicial deadlines." Id. 

### ¶4. 

### EE-RM/STD-98-440

# -:If**~**

# 'fD
-12- equivalent to all the energy consumedby nearly 26 million households in a single year. We also estimate this standard will have a net benefit to the nation's consumers of$l billion over the same period. In 2020, the standards will avoid the construction offive 400 meg:awatt coal-fired plants and thirty-four400 megawatt gas-fired plants. These energy savings will result in cumulative greenhouse gas emission reductions of approximately 33 million metric tons (Mt) ofcarbon, or an amount equal to thatproducedby approximately 3 million cars every year. Additionally, airpollution will bereduced by the elimination of approximately 94 thousand metric tons ofnitrous oxides (NOx) from 2006 through 2020.
66 Fed. Reg. at 7171 (emphasis added). E. The Department ofEnergv's Abrupt About-Face 36. Just days after publishing the Final Conservation Rule, having already made extensive findings with respect to the environmental, energy saving and consumer benefits ofthe Final Conservation Rule, DOE set in motion an attempt to delay implementation ofthe Final Conservation Rule and weaken its standards. 37. On January 24, 2001, four days after the inauguration ofthe new President, a memorandum from Assistant to the President and ChiefofStaffAndrew H. Card, Jr. ("the Card Memo"), dated January 20, 2001, was published in the Federal Register. Sec Exhibit D. The Card Memo directed heads ofexecutive departments and agencies to, "[w]ith respect to regulations that have beenpublished in the OFR [Office of the Federal Register] buthave not taken effect, temporarilypostponethe effective date of the regulations for 60 days." Id. at**~** 3. However, the Card Memo specifically excludes from this directive "any regulations promulgated pursuant to statutory orjudicial deadlines." Id.**~** 4.

### EE-RM/STD-98-440 

### -# a't -13- 38. On February 2, 2001 DOE published in the Federal Register what it labeled as a final rule "temporarily delay[ing]" the effective date ofthe Final Air Conditioner and Heat Pump Rule for 60 days until April 23, 2001. 66 Fed. Reg: 8745 (Feb. 2, 2001). See Exhibit A. DOE cited the Card Memo as the authority forthis action. DOE stated that "[t]he temporary 60-day delay in effective date is necessary to give DOE officials the opportunity for further review and consideration ofnew regulations, consistent with [the Card Memo]." 39. DOE provided no notice or opportunity forpublic comment with respect to this final rule delaying the Final Conservation Rule, and made the stay determination effective immediately. DOE stated that: To the extent that 5U.S.C. section 553 applies to this action, it is exempt from notice and comment because it constitutes a rule ofprocedure under 5U.S.C. section 553(b)(A). Alternatively, DOE's implementation ofthis action without opportunity for public comment, effective immediately upon publication today in the Federal Register, is based on the good cause exceptions in 5U.S.C. section 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary and contrary to the public interest
.... Given the imminence ofthe effective date, seeking prior public comment on this temporary delay would have been impractical, aswell as contrary to the public interest in the orderly promulgation and implementation ofregulations. The imminence ofthe effective date is also good cause formaking this action effective immediately upon publication. 66 Fed. Reg. at 8745. 40. In light ofthe current energy concerns and Congress' direction that an amended rule be published by January 1, 1994, it is contrary to the public interest to delay the effective date ofthe Final Conservation Rule. Moreover, in light ofthe long lead time given to manufacturers under the Final Conservation Rule, there is no good
cause to delay the Final Conservation Rule. EE-RM/STD-98-440

# -:If**~lfO** -13- 38. On February 2,2001 DOEpublished in the Federal Register what it labeled as a final rule "temporarily delay[ing]" the effective date ofthe Final Air Conditioner and Heat Pump Rule for 60 days until April 23, 2001. 66 Fed. Reg: 8745 (Feb. 2, 2001). See Exhibit A. DOE cited the Card Memo as the authority for this action. DOE stated that "[tJhe temporary 60-day delay in effective date is necessary to give DOE officials the opportunity for further review and consideration ofnew regulations, consistent with [the Card Memo]." 39. DOE provided no notice or opportunity for public comment with respect to this final rule delaying the Final Conservation Rule, and made the stay detem1ination effective immediately. DOE stated that: To the extent that 5 U.S.c. section 553 applies to this action, it is exempt from notice and commentbecause it constitutes a rule ofprocedure under 5 U.s.c. section 553(b)(A). Altematively, DOE's implementation ofthis action without opportunity for public comment, effective immediatelyupon publication today in the Federal Register, is based on the good cause exceptions in 5 U.s.c. section 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary and contrary to the public interest.
.... Given the imminence ofthe effective date, seeking priorpublic comment on this temporary delay would have been impractical, as well as contrary to the public interest in the orderlypromulgation and implementation ofregulations. The imminence ofthe effective date is also good cause for making this action effective immediately upon publication. 66 Fed. Reg. at 8745. 40. In light ofthe current energy concems and Congress' direction that an amended rule be published by January 1, 1994, it is contrary to the public interest to delay the effective date ofthe Final Conservation Rule. Moreover, in light ofthe long lead time given to manufacturers under the Final Conservation Rule, there is no good
cause to delay the Final Conservation Rule.

### EE-RM/STD-98-440_- ,, -14- 41. On February 19, 2001, the Air Conditioning and Refrigeration Institute (ARI), atrade association that represents anumber ofmanufacturers ofair conditioners, filed aPetition for Review ofthe Final Conservation Rule in the United States Court of Appeals for the Fourth Circuit. ARI et al. v. United States Department ofEnergy. et al., No. 01-1370 (4th Cir.). 42. On March 23, 2001, ARI sent a letter to DOE styled a "petition for reconsideration," asking DOE to "reconsider" the Final Conservation Rule and issue a new rule with weaker energy efficiency standards for central air conditioners and heat pumps. Subsequent to this administrative filing, the Fourth Circuit, at thejoint request of ART and the U.S. Department ofJustice, suspended the briefing in the ARI Petition for Review proceeding pending DOE's determination ofa "petition for reconsideration" sent by ARI to DOE. 43. On April 13, 2001. DOE issued apress release announcing "its intention to propose a new . . . standard for central air conditioners and heat pumps" with a SEER standard of 12. See Exhibit E. This represents a20%0 increase over existing efficiency standards for central air conditioners and heat pumps, rather than the 30% increase established by the Final Rule. Despite the fact that the Final Rule had already been published in the Federal Register almost three months earlier, DOE stated that "[t]oday's announcement marks the completion ofa 60-day review ofa rule proposed in the last days ofthe Clinton Administration, which proposed a 13/13 SEER standard." Id. (emphasis added). Notwithstanding this language, the Final Conservation Rule was a final rule under the APA and EPCA. EE-RM/STD-98-440-1F

# :AlfD -14- 

### 4l. OnFebruary 

### 19, 2001, the Air Conditioning and Refrigeration Institute (ARl), a trade association that represents a number ofmanufacturers ofair conditioners, filed a Petition for Review ofthe Final Conservation Rule in the United States Court of Appeals for the Fourth Circui1. ARI et al. v. United States Department ofEnergy. et al., No. 01-1370 (4th Cir.). 42. On March 23, 2001, ARl sent a letter to DOE styled a "petition for reconsideration," asking DOE to "reconsider" the Final Conservation Rule and issue a
new rule \vith weaker energy efficiency standards for central air conditioners and heat pumps. Subsequent to this administrative filing, the Fourth Circuit, at thejoint request of ARl and the U.S. Department ofJustice, suspended the briefing in the ARl Petition for Revie\v proceeding pending DOE's determination ofa "petition for reconsideration" sent by ARI to DOE. 43. On April 13,2001, DOE issued a press release announcing "its intention to propose a nev,/
... standard for central air conditioners and heat pumps" with a SEER standard of 12. See Exhibit E. This represents a 20% increase over existing efficiency standards for central air conditioners and heat pumps, rather than the 30% increase established by the Final Rule. Despite the fact that the Final Rule had already been published in the Federal Register almost three months earlier, DOE stated that "[tJoday's announcement marks the completion ofa 60-day review ofa rule proposed in the last days ofthe Clinton Administration, which proposed a 13113 SEER standard." Id. (emphasis added). Notwithstanding this language, the Final ConservationRule was a final rule under the APA and EPCA.

### EE-RM/STD-98-440-'?<- -15- 44. On April 20, 2001, DOE published a second final rule in the Federal Register purporting to delay the effective date ofthe Final Conservation Rule indefinitely "pending the outcome ofpetitions by [ARI] for reconsideration by DOE and forjudicial review by the United States Court ofAppeals for the Fourth Circuit." 66 Fed. Reg. 20191 (April 20, 2001). In the April 20th Federal Register final rule, DOE stated that: Under the informal rulemaking provisions ofthe Administrative Procedure Act (APA), an agency by rule may alter the "effective date" of a previously published final rule (5U.S.C. 551(4), 551(5), 553). The judicial review provisions ofthe APA alsoprovide for a change of "effective date" as follows: "When an agency finds thatjustice so requires, it may postpone the effective date ofaction taken by it, pending judicial review . . ." (5U.S.C. 705). Once the effective date passes, the standards set out in the January 22, 2001 final rule would become part of the Code ofFederal Regulations as an effective final rule, and manufacturers would have to begin the process ofcoming into compliance by January 23, 2006. That process involves both planning and capital expenditures. 66 Fed. Reg. 20191. 45. DOE also stated that it intends within the next 60 days to issue afurther notice ofproposed rulemaking to revise the standard levels set out in the January 22, 2001, final rule and examine the extent to which current minimum required energy efficiency levels are to be increased in 2006. In that notice, DOE intends to propose a 12 SEER with a corresponding 7.4 HSPF. Id. 46. DOE concluded that: During the pendency ofARI's petition forjudicial review and the related petition for administrative reconsideration, justice requires that DOE postpone the effective date ofthe January 22, 2001, final rule, in order to avoid imposing on manufacturers an obligation to undertake planning and capital expenditures to come into compliance by January 23, 2006, with a rule DOE is reconsidering. Id.

## EE.RM/STD.98-440</#~<fO -15- 44. On April 20, 2001, DOEpublished a second final rule in the Federal Registerpurporting to delay the effective date ofthe Final Conservation Rule indefinitely "pending the outcome ofpetitions by [ARI] for reconsideration by DOE and forjudicial review bythe United States Court ofAppeals for the Fourth Circuit." 66 Fed. Reg. 20191 (April 20, 2001). In the April 20th Federal Register final rule, DOE stated that: Under the informal rulemaking provisions ofthe Administrative Procedure Act (APA), an agency by rule may alter the "effective date" of a previously published final rule (5 U.S.c. 551 (4),551(5),553). The judicialreview provisions ofthe APA also provide for a change of "effective date" as follows: "When an agency finds thatjustice so requires, it maypostpone the effective date ofaction taken by it, pending judicial review
...." (5 U.S.c. 705). Once the effective date passes, the standards set out in the January 22, 2001 final rule would become part of the Code ofFederal Regulations as an effective final rule, and manufacturers would have to begin the process ofcoming into compliance byJanuary 23, 2006. That process involves both planning and capital expenditures. 66 Fed. Reg. 20191. 45. DOE also stated that it intends within the next 60 days to issue a further notice ofproposed rulemaking to revise the standard levels set out in the January 22, 2001, final rule and examine the extent to which current minimum required energy efficiency levels are to be increased in 2006. In that notice, DOE intends to propose a 12 SEERwith a corresponding 7.4 HSPF.
46. DOE concluded that: During the pendency ofARI's petition forjudicial review and the related petition for administrative reconsideration,justicerequires that DOE postpone the effective date ofthe January 22, 2001, final rule, in order to avoid imposing onmanufacturers an obligation to undertake planning and capital expenditures to come into compliancebyJanuary 23,2006, with a rule DOE is reconsidering.

### EE-RM/STD-98-440 : ' :O -16- 47. Given that the Final Conservation Rule was promulgated only after DOE received and considered "over 800 comments from adiverse set ofinterested parties, including manufacturers and their representatives" as well as states, electric utilities and consumers, it is unlikely that anew round ofcomments would provide any additional information to support reduction ofthe SEER 13 standard set forth in the Final Conservation Rule. 48. As with the initial amendment ofthe Final Conservation Rule's effective date, DOE provided no notice or opportunity for public comment with respect to this second final rule indefinitely delaying the effective date ofthe Final Conservation Rule, and made the stay determination effective immediately. DOE stated that: To the extent that 5U.S.C. 553 applies to this action, it is exempt from notice and comment procedures based on the good cause exceptions in 5U.S.C. 553(b)(B) and 553(d)(3). Seeking public comment and delaying the effect oftoday's action are impracticable, unnecessary and contrary to the public interest for several reasons. Postponement ofthe imminent effective date ofApril 23, 2001, avoids confusion among manufacturers as to whether to begin the process ofcoming into compliance. It avoids expenditures by manufacturers in reliance on a rule with respect to which there is asignificant likelihood ofmodification. It also facilitates reconsideration ofa final rule that, ifallowed to take effect, might well result in a court order remanding the rule under instructions for further action thereby producing delay in realizing the anticipated energy and cost savings. 66 Fed. Reg. at 20191. 49. DOE's claimedjustification

- the possible "confusion among manufacturers" due to the "significant likelihood ofmodification" ofthe Final Conservation Rule

- is entirely circular and ofits own making. Any "confusion" stems only from DOE's own about-face. Furthermore, DOE's reliance on the potential burdens to manufacturers tojustify delaying the effective date ofthe Final Rule is unsupported. As discussed above, inits prlI13.; O200 I 

### le:_ss rclcasc. 

### DOE has recently stated that an EE-RM/STD·98-440

# -jF;J,L!O
-16- 47. Given that the Final Conservation Rule was promulgated only after DOE received and considered "over 800 comments from a diverse set ofinterested parties, including manufacturers and theirrepresentatives" as well as states, electric utilities and consumers, it is unlikely that a new round ofcomments would provide any additional information to supportreduction ofthe SEER 13 standard set forth in the Final Conservation Rule. 48. As with the initial amendment ofthe Final Conservation Rule's effective date, DOEprovided no notice oropportunity for public comment \,,'ith respect to this second final rule indefinitely delaying the effective date ofthe Final Conservation Rule, and made the stay detem1ination effective immediately. DOE stated that: To the extent that 5 USc. 553 applies to this action, it is exempt from notice and commentprocedures based on the good cause exceptions in 5 U.S.c. 553(b)(B) and 553(d)(3). Seekingpublic comment and delaying the effect oftoday's action are impracticable, unnecessary and contrary to the public interest for several reasons. Postponement ofthe imminent effective date ofApril 23, 2001, a\'oids confusion among manufacturers as to whether to begin the process ofcoming into compliance. It avoids expenditures by manufacturers in reliance on a rule with respect to which there is a significant likelihood ofmodification, 

### It also facilitates reconsideration ofa final rule that, ifallowed to take effect, might well result in a court orderremanding the rule under instructions for further action thereby producing delay in realizing the anticipated energy and cost savings, 66 Fed. Reg. at 20191. 49. DOE's claimedjustification

- the possible "confusion among manufacturers" due to the "significant likelihood ofmodification" ofthe Final Conservation Rule

- is entirely circular and ofits own making. Any "confusion" stems only from DOE's own about-face. Furthermore, DOE'sreliance on the potential burdens to manufacturers tojustify delaying the effective date ofthe Final Rule is unsupported,

### EE-RM/STD-98-440-


### _ /7 -17- amended standard requiring 12 SEER and 7.4 HSPF issupportable and will ould be proposed. Under the Final Conservation Rule, manufacturers will not be required to meet the 13 SEER/7.7 HSPF until 2006. DOE has cited no evidence to support a conclusion that costs to manufacturers to begin working toward the 13 SEER/7.7 HSPF standard ofthe Final Conservation Rule are substantially more burdensome than costs to begin working toward the 12 SEER/7.4 HSPF amended standard DOE a! 

### tlhat lime 

### i!nl

)!.:-3 

### l .!4Lo¥.9?.Q .sg, IIi be pIUoposing. ol
.. 1 .ll \ 

### 2.00)1 DOE -liDannouii 

### cd ll tilhe 

### Fccci-l R 'ri stl-r l-hii i s 

### pIc:i:sic 

## to \\ ithdrawits.anltlav no 200(1 

### fllral h-uLc 

### seitti c fort n C1lCI\ COscr\'alioll s!1flcU(Ls 

### d\- rc': csidenil 

### eccint.llir collditiol 

### lers ald cln 

### -. al a!ir-coll(ditiollillf he t }l ' 

### I (6Fcd. 

### Re.: 3S l 

### v2l\ 2... (l)(c llnihasis added) "A a stIhs tLIt.ici.. 

### d1DOE1has nnd, 

### o-\priil l 1t C1-itIaIl t1lL r 1 p1r1>_s relecase anild the April 20 fual ruEl. 

### t'o.p ose theilowcr 12 SEER erclu'vefficiency stiandard. See 66 Fed. Rce. at.S23. I]. Inl ldditioli. DOE alnnolnllccd thait 11 hs "10o\' concluded tlhlt flC Jal \'

:. 00 1 ! 1 lI. - I FI' I L b l l E

. l t I- L d l tlC oire ra.ts A. RIs 

### ti lI i r 

### jc!i. ( 

### sLcr-atii):;J I. 9 .I:.' DOF_] 

### s .0 

### ls) is l\\so ic l-l-tor \l a n (11elnts to 3cillc ail_ implcmeCnt statutory, 1 imitations on its authority to prCscribe aCmendd cncrv



### col 

### nscl'alion staidards." Id. DOE stated that it would rcccive public commeni oni. a01nd hold a public hearNim on. at least somc aspcts ofthescjpiMosals. Id. CLAIMS FOR RELIEF FIRST CAUSE OF ACTION (Declaratory Judgment Under EPCA) EE-RM/STO-98-440-

# trAL/

# 1J -17

- amended standard requiring 12 SEER and 7.4 HSPF is supportable and 

### wtH**~\:.Q.!JJg** be proposed. Underthe Final Conservation Rule, manufacturers \vill not be required to meet the ]3 SEER!7.7 HSPF until 2006. DOE has cited no evidence to support a conclusion that costs to manufacturers to begin working toward the 13 SEER!7.7 HSPF standard ofthe Final Conservation Rule are substantially more burdensome than costs to begin working to\vard the 12 SEER!7.4 HSPF amended standard DOE 

## m . .1ll;lLli!lls:'**~D1PJQ1JS'l1**t**sti!JJ:~lQJ"\JiilliJi!li9.!.~s** on i**t~ill:llb..Qri!)~cu)rc~~c:.tjl~ilIl1CIl9Sd~CJ1~..rU**'.: 

# .

CLAIMSFORRELIEF FIRST CAUSE OF ACTION (Declaratory Judgment Under EPCA)

### EE-RM/STD-98-440 - :'0 v -18- 52. EPCA provides that DOE "may not prescribe any amended standard which
... decreases the minimum required energy efficiency[] ofacovered product." 42 

### U.S.C.§ 6295(o)(1). 53. As required by 42 U.S.C. § 6295(d)(3)(A). the Final Conservation Rule amends the previous efficiency standards for air conditioners and heat pumps established by Congress under 42 U.S.C. § 6295(d)(1). The Final Conservation Rule establishes energy efficiency stanc'ards of 13 SEER and HSPF 7.7. Notwithstanding DOE's characterization (f the Final Conservation Rule as a 'proposed" rule. the Final Conservation Rule establ'shec an enforceable efficiency standard for air conditioners and heat pumps and was final under the APA and EPCA. 54. ' 

### i 'L l1JlJ2IL ^! e l l 

### Itc.~ j.% 20..
. . '() i nil rIlc DOE has announced its imminent intent to propose to change the Final Conservation Rule to decrease the energy efficiency standards for air conditioners and heat pumps to 12 SEER and 7.4 HSPF. 66 Fed. Reg. 20191 (April 20, 2001) (stating its intent to act "within 60 days"). DOE's announced action would decrease the minimum required energy efficiency ofcentral air conditioners and heat pumps in v\iolation of42 U.S.C. § 6295(o)(1). By noticcj!ibtlished intjhe LJui2. 

### 2?()) 1Fcderal Rc.is1tr. DOE h1aC9 no\ forlnallj mlade this rcposal toLdecease the enelL..cffcllencv standard set forth in the Fi

### nal Conseclration Rulec 

### ..... Atliho..,l hDOE stated in tjlh Jul " Fcceral Recistci-Notice that it iS mcrelypr"loposiltn" to 

### "w\itlldra\ the Final Conservation Rule and "substitute" a ne\\ 

### rule \vith decreased enerLv efficiencv standards. it is clear that DOE infact has alrcadv reached final dcterminations on crucal apects oftil rul eiakinL. Thesc inal 

### EE-RM/STD-98-440

## ~=Ir~ 

# fO
-18- 

### 52. EPCA provides that DOE "may not prescribe any amended standard which
... decreases the minimum required energy efficiency[J ofa covered product." 42 U.S.c.§ 6295(0)(1). 53. As required by 42 U.S.c. § 6295(d)(3)(A), the Final Conservation Rule amends the previous efficiency standards for air conditioners and heat pumps established by Congress under42 U.S.c. § 6295(d)(l). The Final Conservation Rule establishes energy efficienc> st::!I1c.1

### ards of 13 SEER and HSPF 7.7. Notwithstanding DOE's characterization (Jthe Final Conservation Rule as a "proposed" rule, the Final Conservation Rule establ'shed an enforceable efficiency standard for air conditioners and heat pumps and was final under the APA and EPCA.

has 

### announced its imminent intent to propose to change the Final Conservation Rule to decrease the energy efficiency standards for air conditioners and heat pumps to 12 SEER and 7.4 HSPF. 66 Fed. Reg. 20191 (April 20, 2001) (stating its intent to act "within 60 days"). DOE's announced action would decrease the minimum required energy efficiency ofcentral air conditioners and heat pumps in violation of42 U.S.c. §

### EE.RM/STD-98-440 "--"9 c1 -19- 

### determinations include the p.rportcd Rc-\WCi IL'i]In Of "ai

### umbc1r Of CrucialIOI C Cfaclor.. se id. at 3-883.4. an. r-cachin j certa "conclus ons \\ tlh rI-c ari to the IccaI a. nd poicy iss-ues that DOE considered in dccidine \lltc1 tro se xitdraw.d'-aal 

### ofthe Januar 

### . 2001 final rule"! 

### Id. at 

### 88'7, DOE conJcludecd that it 

### hlas c ol "dccidcdto 

### accord i.llmorc wciglpt to ccrtaill lactors. Id.a. 

### t . 

### c s also i.. lailll n .on that 

### l]nj LIII11f In Ins a 2ina le. ina udecl nCIIIat t discIionl IId \ClLen t \\i h se it\ cl to tlhe

5. Plaintiffs are entitled to a declaratoryjudment pursuant to 28 U.S.C. ctC -Cvc

2201 that DOE is barred from taking any action to reduce the energy efficiency standards

Conta\ined RLMlc. aid nuhfc istiettdics tion for it of ai cnc\i.loncr and SEER puncm-p

rn

iIicc standa Iscd.aos sct fatrl in DOE V's Jlprpo5. a001 Fl dral Rselistc Notic. because such action would violate the express provisions of42 U.S.C. § 6295(o )( ), and would be now ci \es to certa..In a5spec.ts 01 its anal Si ] sof manUnif urer C andconlsurLC' impact .c



### arbitrary and capricious under the APA. Plaintiffs are also entitled to a declaratory injunctiondgment pursuant to 28 US.C 2201 tprohibiti DOEis barred from taking any such action to reduce the energy efficiency standards inthe Final Conservation Rule.: iiclLdin. .butnot IIlmited 

### to the 

### -Nw ithdrawl'- ofthe Finalct Conmser.'atoon Rule. aid the -sibstittio.i" for itofanw. lower I2 SEE E. enrcv efficiency standard. as set forth in DOE's July 25. 2001 Federal Rci - 

### ster Noticc. because such action would violate the express provisions of42 U.S.C. 

### §6295(o)(1), and would be arbitrary and capricious under the APA. Plaintiffs are also entitled to an injunction prohibiting DOE from taking any such action. SECOND CAUSE OF ACTION (Failure to Provide Notice and Comment under APA for 60-day Delay Rule) EE-RM/STD-98-440....

# ifb?'fD
-19-

56. Plaintiffs are entitled to a declaratoryjudgmentpursuant to 28 U.S.c. § 2201 that DOE is barred from taking any action to reduce the energy efficiency standards

such action would violate the express provisions of42 U.s.c. 

### §6295(0)(1), and would be arbitrary and capricious under the APA. Plaintiffs are also entitled to an injunction prohibiting DOE from taking any such action. SECOND CAUSE OF ACTION (Failure to Provide Notice and CommentunderAPA for 60-day Delay Rule)-20-\ ' EE-RM/STD-98-440't{ .Q 

### 57. DOE's February 2, 2001 final rule delaying the effective date ofthe Final Air Conditioner and Heat Pump Conservation Rule constitutes rulemaking under the APA. DOE's February 2, 2001 action required notice and comment. 58. DOE's failure to provide notice and comment prior to its February 2,2001 final rule delaying the effective date ofthe Final Conservation Rule violates the APA. 5 U.S.C. §§ 553(b), (c). In addition, DOE's attempt to delay the Final Conservation Rule is contrary to the public interest, since it will r.iso delay the energy savings ofcritical importance to all consumers. 59. DOE's February 2,2001 rulemaking action was not an interpretative rule,
ageneral statement ofpolicy, or arule ofagency organization, procedure or practice within the meaning ofSection 553(b)(A) ofthe APA. 60. DOE did not have good cause to find that providing notice and opportunity to comment prior to issuing its February 2,2001 final rule was impracticable, unnecessary or contrary to the public interest. THIRD CAUSE OF ACTION (Failure to Publish 60-day Delay Rule 30 Days In Advance Under APA) 61. DOE did not publish its February 2, 2001 final rule delaying the effective date ofthe Final Conservation Rule more than 30 daysbefore the Final Conservation Rule's effective date. 62. DOE's failure to publish its February 2,2001 final rule delaying the effective date ofthe Final Conservation Rule more than 30 days before its effective date violated the APA. 5U.S.C. § 553(d). -20-

### EE-RM/STD-98-44~1F-~~V 57. DOE's February 2,2001 final rule delaying the effective date ofthe Final Air Conditioner and Heat Pump Conservation Rule constitutes rulemaking under the APA. DOE's February 2, 2001 action required notice and comment. 58. DOE's failure to provide notice and comment prior to its February 2, 2001 final rule delaying the effective date ofthe Final Conservation Rule yiolates the APA. 5

u.s.c. §§ 553(b), (c). In addition, DOE's attempt to delay the Final ConserYation Rule is contrary to the public interest, since it will (.iso delay the energy savings ofcritical importance to all consumers. 59. DOE's February 2, 2001 rulell1akir.g action was not an interpretative rule.

a general statement ofpolicy, or a rule ofagellCY**or~.1nization,** procedure or pr9ctice within the meaning ofSection 553(b)(A) ofthe f\PA. 60. DOE did not have good cause to find that providing notice and opportunity to conunentpriorto issuing its February 2, 2001 final rule was impracticable, unnecessary or contrary to the public interest. THIRD CAUSE OF ACTION (Failure to Publish 60-day Delay Rule 30 Days In Advance UnderAPA) 61. DOE did not publish its February 2, 2001 final rule delaying the effective date ofthe Final Conservation Rule more than 30 daysbefore the Final Conservation Rule's effective date. 62. DOE's failure to publish its February 2, 2001 final rule delaying the effective date ofthe Final Conservation Rule more than 30 days before its effective date violated the APA. 5 U.S.c. § 553(d).

### EE.RM/STD-98-440 

# -a ¢0 -21- 63. DOE's February 2,2001 rulemaking was not "a substantive rule which grants or recognizes an exemption or relieves arestriction" or an interpretative rule or statement ofpolicy within the meaning ofthe APA. 5U.S.C. §§ 553(d)(1)-(2). 64. DOE did not have good cause to publish its February 2, 2001 final rule less than 30 days before the rule's effective date within the meaning ofSection 553(d)(3). 5U.S.C. §553(d)(3). 

### EE-RM/STD-98-440

## ~**~**

# rO

-21- 63. DOE's February 2, 2001 rulemaking was not "a substantive rule which grants or recognizes an exemption orrelieves arestriction" or an interpretative rule or statement ofpolicy within the meaning ofthe APA. 5 U.s.c. §§ 553(d)(1)-(2). 64. DOE did nothave good cause to publish its February 2, 2001 final rule less than 30 days before the rule's effective date within the meaning ofSection 553(d)(3), 5U.S.c. § 553(d)(3).

### EE-RM/STD-98-440 -j- 

# a4 

# U
-22- FOURTH CAUSE OF ACTION (60-Day Delay Rule in Violation ofLaw) 65. The sole authority cited for DOE's February 2, 2001 final rule delaying the effective date ofthe Final Conservation Rule was the Card Memo. 66. The Card Memo specifically excludes actions taken "pursuant to statutory
orjudicial deadlines." See Exhibit D. 67. The Final Air Conditioner and Heat Pump Conservation Rule was issued pursuant to a statutory deadline imposed under 42 U.S.C. § 6295(d)(3)'A). 68. By its own terms, the Card Memo provides nojustification for DOE's February 2, 2001 final rule. 69. DOE's February 2, 2001 rulemaking was arbitrary and capricious, an abuse ofdiscretion and otherwise not in accordance with law and without observance of procedure required by law pursuant to APA Section 706(2)(A). FIFTH CAUSE OF ACTION (Failure to Provide Notice And Comment under APA for Indefinite Delay Rule) 70. DOE's April 20, 2001 final rule indefinitely delaying the effective date of the Final Conservation Rule constitutes rulemaking under the APA. DOE's April 20, 2001 action required notice and comment. 71. DOE's failure to provide notice and comment prior to its April 20, 2001 final rule amending the Final Air Conditioner and Heat Pump Conservation Rule violates the APA. 5U.S.C. §§ 553(b), (c). EE-RM/STO-98-440

# -:It**~**

# 'f·O
-22- FOURTH CAUSE OF ACTION (60-Day DelayRule in Violation ofLaw) 65. The sole authority cited for DOE's February 2, 2001 final rule delaying the effective date ofthe Final Conservation Rule was the Card Memo. 66. The Card Memo specifically excludes actions taken "pursuantto statutory
orjudicial deadlines." See Exhibit D. 67. The Final Air Conditioner and Heat Pump Conser\'ati01 Rule was issued pursuant to a statutory deadline imposed under42 U.S.c. § 6295(d)(3rA). 68. By its own terms, the Card Memo provides nojustificatiop for DOE's February 2, 2001 final rule. 69. DOE's February 2, 2001 rulemaking was arbitrary and capricious, an abuse ofdiscretion and otherwise not in accordance \vith law and without obsenance of procedure required by law pursuant to APA Section 706(2)(A). FIFTH CAUSE OF ACTION (Failure to Provide Notice And Comment under APA for Indefinite Delay Rule) 70. DOE's April 20, 2001 final rule indefinitely delaying the effective date of the Final Conservation Rule constitutesrulemaking underthe APA. DOE's April 20, 2001 action required notice and comment. 71. DOE's failure to provide notice and commentprior to its April 20,200I final rule amending the Final AirConditioner and Heat Pump Conservation Rule violates the APA. 5 U.S.c. §§ 553(b), (c).

### EE-RM/STD-98-440- 4 

### 6 

# L . -23- 72. DOE's April 20, 2001 rulemaking was not an interpretative rule, ageneral statement ofpolicy, or a rule ofagency organization, procedure or practice within the meaning ofSection 553(b)(A) ofthe APA. 73. DOE did not have good cause to find that providing notice and opportunity to comment prior to issuing its April 20, 2001 final rule was impracticable, unnecessary or contrary to the public interest within the meaning ofAPA Section 553(b)(B).
SIXTH CAUSE OF ACTION (Failure to Publish Indefinite Delay Rule 30 Days in Advance under APA) 74. DOE did not publish its April 20, 2001 final rule delaying the effective date oftheFinal Air Conditioner and Heat Pump Conservation Rule more than 30 days before its effective date. 75. DOE's failure to publish its April 20, 2001 final rule delaying the effective date ofthe Final Air Conditioner and Heat Pump Conservation Rule more than 30 days before its effective date violated the APA. 5U.S.C. § 553(d). 76. DOE's April 20, 2001 rulemaking was not "a substantive rule which grants or recognizes an exemption or relieves arestriction" or an interpretative rule or statement ofpolicy within the meaning of Section 553(d)(1)-(2). 5U.S.C. §§ 553(d)(1)- (2). 77. DOE did not have good cause to publish its April 20, 2001 rule less than 30 days before the rule's effective date, within the meaning ofSection 553(d)(3), 5 U.S.C. § 553(d)(3). 

### EE-RM/STD-98-440-:tt

# ~

# £fO . -23- 72. DOE's April 20, 2001 rulemaking was not an interpretative rule, a general statement ofpolicy, or a rule ofagency organization, procedure orpractice within the meaning ofSection 553(b)(A) ofthe APA. 73. DOE did not have good cause to find that providing notice and opportunity to commentpriorto issuing its April 20, 2001final rule was impracticable, unnecessary or contrary to the public interest within the meaning ofAPA Section 553(b)(B).
SIXTH CAUSE OF ACTION (Failure to Publisb Indefinite Delay Rule 30 Days in Advance under APA) 74. DOE did not publish its April 20, 2001 final rule delaying the effective date oftbeFinal Air Conditionerand HeatPump Conservation Rule more than 30 days before its effective date. 75. DOE's failure to publish its April 20, 2001 final rule delaying the effective date ofthe Final Air Conditioner and Heat Pump Conservation Rule more than 30 days before its effective date violated the APA. 5 V.S.c. 

### § 553(d). 76. DOE's April 20, 2001 rulemaking was not "a substantiverule which grants orrecognizes an exemption orrelieves a restriction" or an interpretative rule or statement ofpolicy w·itbin tbe meaning ofSection 553(d)(1)-(2). 5 U.S.c. §§ 553(d)(1)- (2). 77. DOE did nothave good cause to publish its April 20, 2001 rule less than 30days before the rule's effective date, within the meaning ofSection 553(d)(3), 5 V.S.c. § 553(d)(3).

### EE-RMISTD-98 -- 

### y
-24- SEVENTH CAUSE OF ACTION (Improper Reliance on APA §705 for Indefinite Delay Rule) 78. DOE claimed to rely on APA Section 705, 5U.S.C. §705, asjustification for its April 20, 2001 final rule. Section 705 provides that "[w]hen an agency finds that justice so requires, itmay postpone the effective date ofaction taken by it, pending judicial review." 5U.S.C. §705. 79. APA Section 705 does not allow an agency to suspend without notice and comment apromulgated rule. 80. DOE's reliance on APA Section 705 as purportedjustification for its April 20, 2001 action was improper. The Final Conservation Rule is not subject to active judicial review because the Fourth Circuit has suspended the briefing ofARI v. DOE. 81. DOE's reliance on APA Section 705 as purportedjustification for its April 20, 2001 action was also improper because Section 705 does not allow an agency to postpone the effective date ofan action pending consideration by the agency ofapetition forreconsideration. 82. DOE abused its discretion in finding that "justice
. . . requires" delay of the effective date ofthe Final Conservation Rule pursuant to APA Section 705. 83. DOE's April 20, 2001 action was arbitrary and capricious, an abuse of discretion and otherwise not in accordance with law and without observance ofprocedure required by law pursuant to APA Section 706(2)(A), 5U.S.C. §706(2)(A).

# EE.RM/STD-~4Q**'-'1F~Cf1J**

# . -24- SEVENTH CAUSE OF ACTION (Improper Reliance on APA §705 for Indefinite Delay Rule) 78. DOE claimed to rely on APA Section 705,5 U.S.c. § 705, asjustification for its April 20, 2001 final rule. Section 705 provides that "[w]hen an agency finds that justice so requires, it may postpone the effective date ofaction taken by it, pending judicial review." 5 U.S.c. § 705. 79. APA Section 705 does not allow an agency to suspend without notice and comment a promulgated rule. 80. DOE's reliance on APA Section 705 as purportedjustification for its April 20, 2001 action was improper. The Final Conservation Rule is not subject to active judicial review because the Fourth Circuit has suspended the briefing of

### ARI v. DOE. 81. DOE's reliance on APA Section 705 as purportedjustification for its April 20, 2001 action was also improperbecause Section 705 does not allow an agency to postpone the effective date ofan action pending consideration by the agency ofa petition for reconsideration. 82. DOE abused its discretion in finding that "justice
... requires" delay of the effective date ofthe Final Conservation Rule pursuantto APA Section 705. 83. DOE's April 20, 2001 action was arbitrary and capricious, an abuse of discretion and otherwise not in accordance with law and without observance ofprocedure required by law pursuant to APA Section 706(2)(A), 5 US.c. § 706(2)(A).

### EE-RM/STD-98-440 ~-':,/v -25- PRAYER FOR RELIEF WHEREFORE, Plaintiffs request: 1.That this Court enter adeclaratory judgment pursuant to 28 U.S.C. §2201 (a) that DOE may not amend. "\vitlhdra or in any way change the Final Conservation Rule
so as to weaken the energy efficiency standards contained therein pursuant to 42 U.S.C. § 6295(o)(1 

### )JinelUdi

### inbut 

### not limilted to the \vithcra\\al- ofthe JFinal Conser-vltio. Rule. and the Stilsttltiop lor it )ola ne\. 

### lo\\ erp 12 SEERl- 

### c3

ncclneI\ flcicnLcv stalickiird as sct l!'th i DO'J!!.E.s!.l. .Ju.! : ! 2 .0 c . Fed.iral Re. ! istr NotLic. and an injunction prohibiting DOE 

### from taking any such action; 2. That this Court hold unlawful and set aside DOE's February 2, 2001 and April 20, 2001 final rules amending the effective date ofthe Final Conservation Rule; 3. That this Court declare that the Final Air Conditioner and Heat Pump Conservation Rule was effective on February 21, 2001 and require that DOE take all steps necessary immediately to effectuate implementation ofthe Rule; and 4. That plaintiffs be granted such other and further reliefthat this Court deems just and equitable.

Dated: September _, 2001
ELIOT SPITZER ATTORNEY GENERAL STATE OF NEW YORK By: PETER H. LEHNER D. SCOTT BASSINSON Assistant Attorneys General -25- 

### EE.RM/STD.98

..

### 440-#~

# 'Iv
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request: 1. That this Court enter a declaratoryjudgmentpursuant to 28 U.S.c. § 2201 (a) that DOE may not**amend~\:ithdr_~l~~:·** or in any way change the Final Conservation Rule

so as to weaken the energy efficiency standards contained therein pursuant to 42 U.S.c. §**Il)rUl.l.ll.I)OJ:·~)l.I.IY_;:1:...?QQJJ~cll:I::1IJ~t:.gi~L~Tc\()ll~S:_,** and an injunction prohibiting DOE from taking any such action; 2. That this Court hold unlawful and set aside DOE's February 2, 2001 and April 20,2001 final rules amending the effective date ofthe Final Conservation Rule; 3. That this Court declare that the Final Air Conditioner and Heat Pump Conservation Rule was effective on February 21, 2001 and require that DOE take all steps necessary immediately to effectuate implementation ofthe Rule; and 4. That plaintiffs be granted such other and further reliefthat this Court deems just and equitable.

Dated: September_ , 2001

By: ELIOT SPITZER ATTORNEY GENERAL STATE OF NEW YORK
PETER H. LEHNER D. SCOTT BASSINSON Assistant Attorneys General

### EE-RM/STD-98-440 

# -! 9 -26-

New York State Department ofLaw The Capitol Albany, New York 12224 (518) 473-5843
BILL LOCKYER ATTORNEY GENERAL OF THE STATE OF CALIFORNIA By: RICHARD M. FRANK ChiefAssistant Attorney General, Public Rights Division California Attorney General's Office 1300 "I" Street P. 0. Box 944255 Sacramento, California 94244-2550 (916) 445-9555 RICHARD BLUMENTHAL ATTORNEY GENERAL STATE OF CONNECTICUT By: MARK KINDALL Assistant Attorney General 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 Tel: 860-808-5250 Fax: 860-808-5386 \WILLIAM I-. SORRELL ATTORNEY GENERAL



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New York State Department ofLaw The Capitol Albany, New York 12224 (518) 473-5843
BILL LOCKYER ATTOR.NEY GENERAL OF THE STATE OF CALIFOR.l\JIA

RICHARD M. FR.A.NK ChiefAssistant Attorney General, Public Rights Division California Attorney General's Office 1300 "I" Street P. O. Box 944255 Sacramento, California 94244-2550 (916) 445-9555 RICHARD BLUMENTHAL ATTORNEY GENER.A.L STATE OF CONNECTICUT

MARK KINDALL Assistant Attorney General 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 Tel: 860-808-5250 Fax: 860-808-5386

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