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. Plaintiff States, representing over 50 million people of the United States,

challenge several unlawful final rules of the United States Department of Energy (DOE),

by which it is attempting to replace and revise downward a Final Rule it issued under the

previous administration that established cost-effective, technically feasible and

environmentally 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.

EE-RM-STD-98-440 COMMENT 240

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

STATE OF NEW YORK, 

STA TE OF CALIFOR.NIA, 

ST A TE OF C01\TNECTICUT, 

STATE OF VERt'-.10!\T. 

ST.,<\ T~QLf\1/d~E. _ 

Plaintiffs, 

-againstSPENCER ABRAHAM, AS SECRETARY 

OF THE UNITED STATES DEPARTMENT 

OF ENERGY, and UNITED STATES 

DEPARTMENT OF ENERGY, 

Defendants. 

Civil Action No, 01 CV -5499 

(L TS)(DCF) 

:~\):L t-::-J) Ll2::\~ I) 

.~,LJYPJJ;~LE "~L\ L 

COl\1PLAI~T FOR 

DECLARATORY AND 

INJUNCTIVE RELIEF 

PRELIMINARY STATEMENT 

1. Plaintiff States, representing over 50 million people of the United States, 

challenge several unlawful final rules of the United States Department of Energy (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

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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 of the 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 under the Administrative Procedure Act (APA), 5 U.S.C. §§

553 et seq., and without any valid justification - 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 of the 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 of these 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[] of a 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 is repeating its concern for

the adequacy of the energy supply, and discussing the possibility of building over one

EE-RM-STD-98-440 COMMENT 240

• 

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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 of the 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 under the Administrative Procedure Act (APA), 5 U.S.c. §§ 

553 et ~, and without any valid justification - 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 of the 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 of these 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[] of a 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 of the energy supply, and discussing the possibility of building over one 
EE-RM/STD-98-440 - + +0

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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 declaratory judgment 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, 1c e_ -in l.! on scr\ ;iioi Rulc, . nd.!

the "subslilition" 1" 1 I or (t ol0\ C 1. \.I CI jCICIn \ Ce tiln-C 1 11 si ndIc d. n S Se 01 rtli i It .L I\

2§5.J .0 l-ncde-il F 'I 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 of New York is a sovereign state and brings this action on

behalf of itself and, as parens patriae, on behalf of the people of the State of New York.

7. Plaintiff State of California is a sovereign state and brings this action on

behalf of itself and, as parens patriae. on behalf of the people of the State of California.

8. Plaintiff State of Connecticut is a sovereign state and brings this action on

behalf of itself and, as parens patriae, on behalf of the people of the State of Connecticut.

9. Plaintiff State of Vermont is a so\verelun state and hins this action on

blici f of itself and. as l)arcnEs patriac. on behalf of the ico]pl of the State of Vermont.

10. P'lainil f State of Mnine is a;sov\crci( nlct! anid bnis this Ctio 011

bchlifo Isltand.ll aspan. on beha'ill of h co'le of the Slate of M 1 ainc.

EE-RM-STD-98-440 COMMENT 240

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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 declaratory judgment pursuant to 

28 U.s.c. § 2201(a) that DOE is barred by 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 be . '}hl.l'.'-;Ji t 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'. J Lib' 

~-,,"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. Plaintiff State of New York is a sovereign state and brings this action on 

bcllalf of itself and, as parens patriae, on behalf of the people of the State of New York. 

7. Plaintiff State of California is a sovereign state and brings this action on 

behalf of itself and, as parens patriae, on behalf of the people of the State of California. 

8. Plaintiff State of Connecticut is a sovereign state and brings this action on 

behalf of itself and, as parens patriae, on behalf of the people of the State of Connecticut. 

9. fl <1 i III i ff S19.1g.L\~~QJlQ}lUS-.?...iO \ cI.e i Q 11 stat e ~ n dJl[Ll}g;iJbi5~a c t i QlL 011 

b c 1.!~IJL0LiJs~lJ~~ll'-~.~ J).Q~(; l))J?£IUji!LC)Ll_b~ ~llL~)r JII c J2g.Q]2 L~.2 flIl£~ ~.t:H(; .. QLV c !:!1l.9 ll.t, 
EE-RM/STD-98440 -fy '

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11. On behalf of the people of the plaintiff States as well as on behalf of

themselves as consumers of electricity, the plaintiff States have strong environmental.

public health and consumer interests in the prompt implementation of the 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 of the need to build new

power plants. DOE's attempts to delay the effective date of the Final Conservation Rule

have harmed plaintiffs by delaying these benefits. The plaintiff States believe that

'mplementation of all reasonably feasible energy conservation measures is an essential

component of any long-term solution to America's energy needs. In addition, DOE's

planned revision of the Final Conservation Rule to reduce the energy efficiency standards

will adversely affect all citizens in plaintiff States, in economic as well as environmental

and public health areas.

12. Defendant Spencer Abraham is Secretary of DOE. As such, he is

responsible for administration of that 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 of EPCA.

JURISDICTION AND VENUE

14. This Court has jurisdiction 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 COMMENT 240

· . EE-RM/STD-98-440 --1F~ lfO 

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11. On behal f of the people of the plaintiff States as well as on behalf of 

themsel yes as consumers of electricity, the plaintiff States have strong environmentaL 

public health and consumer interests in the prompt implementation of the 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 of the need to build nev,' 

power plants. DOE's attempts to delay the effective date of the Final Conservation Rule 

have ham1ed plaintiffs by delaying these benefits. The plaintiff States believe that 

.mplementation of all reasonably feasible energy conservation measures is an essential 

component of any long-tem1 solution to America's energy needs. In addition, DOE's 

planned revision of the Final Conservation Rule to reduce the energy efficiency standards 

will adversely affect all citizens in plaintiff States, in economic as well as environmental 

and public health areas. 

12. Defendant Spencer Abraham is Secretary of DOE. As such, he is 

responsible for administration of that agency in accordance with EPe A and the AP A. 

DOE's headquarters are located at 1000 Independence Ave., SW, \Vashington, DC 

20585. 

13. Defendant DOE is the agency responsible for implementation of EPCA. 

JURlSDICTION AND VENUE 

14. This Court has jurisdiction over the matters raised pursuant to the APA, 5 

U.S.c. § 706, and 28 U.S.c. §§ 1331 (federal question) and 220] (declaratory jUdgment). 
EE-RM/STD-98-440 -a- 

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15. Venue in this Court is proper pursuant to 28 U.S.C. § 1391(e) because the

defendants are an officer and an agency of the United States and one of the plaintiffs

resides in this district.

STATEMENT OF FACTS COMMON TO ALL CLAIMS

A. The Importance of Appliance Energy Efficiency Standards

i6. Electricity generation in the United States causes a wide range of adverse

envirDnmen:al impacts, including air pollution emissions that threaten public health,

contribute to worldwide climate change, and cause acid rain. The impacts of electricity

generation also include water pollution, including toxic mercury pollution and disruption

of fish and other aquatic ecosystems. The production of fuels for electricity generation

also has major adverse environmental effects. Huge amounts of electricity are wasted

through inefficient usage, which, in turn, causes unnecessary electricity generation and

pollution. This waste is particularly acute and damaging during hours of hot weather peak

electricity demand, when air conditioners are operating at their highest level of output.

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 of residential 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 a significantly

larger amount. Id.

EE-RM-STD-98-440 COMMENT 240 · ' 

EE-RM/STO-98-440-1/>:J, 'f0 

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15. Venue in this Court is proper pursuant to 28 U.s.c. § 1391 ( e) because the 

defendants are an officer and an agency of the United States and one of the plaintiffs 

resides in this district. 

STATEMENT OF FACTS COMMO]\ TO ALL CLAIMS 

A. !he Importance of Appliance Energv Efficiencv Standards 

16. Electricity generation in the United States causes a wide range of adverse 

envini1men~a1 impacts, including air pollution emissions that threaten public health, 

contriJute to worldwide climate change, and cause acid rain. The impacts of electricity 

generatio'1 also include water pollution, including toxic mercury pollution and disruption 

of fish and other aquatic ecosystems. The production of fuels for electricity generation 

also has major adverse environmental effects. Huge amounts of electricity are wasted 

through inefficient usage, which, in turn, causes unnecessary electricity generation and 

pollution. This waste is particularly acute and damaging during hours of hot weather peak 

electricity demand, when air conditioners are operating at their highest level of output. 

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 of residential electricity 

consumption, and several times that amount during peak hot 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'

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18. Appliance energy efficiency standards address these problems by creating

cost-effective, technically feasible minimum efficiency standards that must be 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 a house 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 of the 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 of electricity for

all consumers, especially when electricity is sold in a wholesale 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 in particular, 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 a result, in the absence of strong appliance efficiency standards, tenants end up

EE-RM-STD-98-440 COMMENT 240

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18. Appliance energy efficiency standards address these problems by creating 

cost-effective, technically feasible minimum efficiency standards that must be 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 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 over the lifetime of the 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 over the 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 of electricity for 

all consumers, especially when electricity is sold in a wholesale power market, 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, 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 a result, in the absence of strong appliance efficiency standards, tenants end up 
EE-RM/STD-98-440 -4 O

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with unnecessarily high electric bills. This is a particularly acute problem in large urban

areas such as New York City or Los 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 a percentage of income 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 water heaters,

EE-RM-STD-98-440 COMMENT 240 '. ' 

EE-RM/STD-98-440-i/ A 'fo 

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with unnecessarily high electric bills. This is a particularly acute problem in large urban 

areas such as New York City or Los Angeles, where many residents live in multi-family 

housing. This "split incentive" problem also arises ¥,'here 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 spenr: more on energy as a percentage of income than other 

income groups, and therefore v'ilj benefit more from lower energy bills 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 "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 water heaters, 
EE-RM/STD-98-440' :

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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 of these efficiency ratings. The Act

mandated specific criteria for the amendment of appliance 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 economically jl 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[] of a

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 a three-step process. First, the Act itself established 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 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 a Seasonal Energy Efficiency Ratio (SEER) to measure the'

energy efficiency for the seasonal cooling performance of central air conditioners and

heat pumps. In addition, the Heating Seasonal Performance Factor (HSPF) is DOE's

measure of energy efficiency for the seasonal heating performance of heat pumps. The

higher the number, the more efficient the appliance. The Act established the initial

EE-RM-STD-98-440 COMMENT 240

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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 of these efficiency ratings. The Act 

mandated specific criteria for the amendment of appliance 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 it stifitQ " 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 of a 

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 itself established 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 by January I, 

2001. 42 U.S.c. § 6295(d)(3)(B). 

25. DOE uses a Seasonal Energy Efficiency Ratio (SEER) to measure the' 

energy efficiency for the seasonal cooling performance of central air conditioners and 

heat pumps. In addition, the Heating Seasonal Perfomlance Factor (HSPF) is DOE's 

measure of energy efficiency for the seasonal heating performance of heat pumps. The 

higher the number, the more efficient the appliance. The Act established the initial 
EE-RM/STD-98-440----W)

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efficiency standard at 10 SEER for central air conditioners and for the cooling

performance of heat pumps and 6.8 HSPF for the heating performance of heat 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 of the air conditioner and heat pump efficiency standard

setting process required by EPCA.

C. Rulemaking Requirements Under Federal Law

27. The APA requires agencies of the 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 a rule." 5 U.S.C. § 551(5).

Section 553(b) provides that "[g]eneral notice of proposed rule making shall be published

in the Federal Register .... " 5 U.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 of written 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 of policy, or rules of agency

organization, procedure or practice: or when the agency for good cause finds (and

incorporates the finding and a brief statement of reasons therefor in the rules issued) that

EE-RM-STD-98-440 COMMENT 240

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efficiency standard at 10 SEER for central air conditioners and for the cooling 

perfom1ance of heat pumps and 6.8 HSPF for the heating perfonnance of heat 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, 

200 1, 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 of the air conditioner and heat J),lmp tfficiency standard 

setting process required by EPCA. 

C. Rulemaking Requirements Under Federal Law 

27. The APA requires agencies of the 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 a rule." 5 U.s.c. § 551 (5). 

Section 553(b) provides that "[gJeneral notice of proposed 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 making through the submission of written 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 of policy, or rules of agency 

organization, procedure or practice: or when the agency for good cause finds (and 

incorporates the finding and a brief statement of reasons therefor in the rules issued) that 
EE-RM/STD-98-4404-1 V

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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]he required publication or service of a

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 or recognizes an exemption or relieves a restriction; (2)

interpretive rules and statements of policy; or (3) as otherwise providec by the agency for

good cause found and published with the rule." 5 U.S.C. § 553(d).

31. The APA further provides that the effective date of a rule can be

postponed "[w]hen an agency finds that justice so requires ... pending judicial review." 5

U.s.C. § 705.

32. The APA empowers a reviewing court to:

hold unlawful and set aside agency action, findings, and

conclusions found to be -

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; * * *

(C) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory

right;

(D) without observance of procedure

required by law ....

5 U.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 COMMENT 240

EE-RM/STD-98-440 --:j .. ~ ~f) 

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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]he required publication or service of a 

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 or recognizes an exemption or relieves a restrirtion; (2) 

interpretive rules and statements of policy; 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 AP A further provides that the effective date of a rule can be 

postponed "[ vV']hen an agency finds that justice so requires ... pending judicial 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 of discretion, or 

otherwise not in accordance with law; 

* * * 

(C) in excess of statutory jurisdiction, 

authority, or limitations, or short of statutory 

right; 

(D) without observance of procedure 

required by law .... 

5 U.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- t 0

-11-

an Advance Notice of Proposed 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 of January 23, 2006. Id. at 7170-71. The January 22, 2001 notice stated

that the "effective date of this 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% of the 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)] of energy over 25 years (2006 through 2030). This is

EE-RM-STD-98-440 COMMENT 240

EE-RM/STD-98-440-tr'. ~ if{) 

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an Advance Notice of Proposed 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 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 of January 23, 2006. Id. at 7170-71. The January 22, 200 I notice stated 

that the "effective date of this 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% of the 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)] of energy 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 $1 billion over the same period. In 2020, the

standards will avoid the construction of five 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) of carbon, or an amount equal

to that produced by approximately 3 million cars every year.

Additionally, air pollution will be reduced by the elimination of

approximately 94 thousand metric tons of nitrous oxides (NOx) from 2006

through 2020.

66 Fed. Reg. at 7171 (emphasis added).

E. The Department of Energy'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 of the Final Conservation Rule, DOE set in motion an attempt to delay

implementation of the Final Conservation Rule and weaken its standards.

37. On January 24, 2001, four days after the inauguration of the new

President, a memorandum from Assistant to the President and Chief of Staff Andrew H.

Card, Jr. ("the Card Memo"), dated January 20, 2001. was published in the Federal

Register. See Exhibit D. The Card Memo directed heads of executive departments and

agencies to, "[w]ith respect to regulations that have been published in the OFR [Office of

the Federal Register] but have 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 or judicial

deadlines." Id. ¶ 4.

EE-RM-STD-98-440 COMMENT 240

EE-RM/STD-98-440 -:If ~ 'fD 

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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$l billion over the same period. In 2020, the 

standards will avoid the construction of five 400 meg:awatt 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) of carbon, or an amount equal 

to that produced by approximately 3 million cars every year. 

Additionally, air pollution will be reduced by the elimination of 

approximately 94 thousand metric tons of nitrous oxides (NOx) from 2006 

through 2020. 

66 Fed. Reg. at 7171 (emphasis added). 

E. The Department of Energv'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 of the Final Conservation Rule, DOE set in motion an attempt to delay 

implementation of the Final Conservation Rule and weaken its standards. 

37. On January 24, 2001, four days after the inauguration of the new 

President, a memorandum from Assistant to the President and Chief of Staff Andrew H. 

Card, Jr. ("the Card Memo"), dated January 20, 2001, was published in the Federal 

Register. Sec Exhibit D. The Card Memo directed heads of executive departments and 

agencies to, "[ w ]ith respect to regulations that have been published in the OFR [Office of 

the Federal Register] but have 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 or judicial 

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 of the 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 "[t]he 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 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 determination

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 comment because it constitutes a rule of procedure under 5 U.S.C.

section 553(b)(A). Alternatively, DOE's implementation of this action without

opportunity for public comment, effective immediately upon 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 of the effective

date, seeking prior public comment on this temporary delay would have been

impractical, as well as contrary to the public interest in the orderly promulgation

and implementation of regulations. The imminence of the effective date is also

good cause for making this action effective immediately upon publication.

66 Fed. Reg. at 8745.

40. In light of the 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 of the Final Conservation Rule. Moreover, in light of the 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 COMMENT 240

EE-RM/STD-98-440 -:If ~lfO 

-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 of the 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 of new 

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 comment because it constitutes a rule of procedure under 5 U.s.c. 

section 553(b)(A). Altematively, DOE's implementation of this action without 

opportunity for public comment, effective immediately upon 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 of the effective 

date, seeking prior public comment on this temporary delay would have been 

impractical, as well as contrary to the public interest in the orderly promulgation 

and implementation of regulations. The imminence of the effective date is also 

good cause for making this action effective immediately upon publication. 

66 Fed. Reg. at 8745. 

40. In light of the 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 of the Final Conservation Rule. Moreover, in light of the 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), a trade association that represents a number of manufacturers of air conditioners,

filed a Petition for Review of the Final Conservation Rule in the United States Court of

Appeals for the Fourth Circuit. ARI et al. v. United States Department of Energy. 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 the joint request of

ART and the U.S. Department of Justice, suspended the briefing in the ARI Petition for

Review proceeding pending DOE's determination of a "petition for reconsideration" sent

by ARI to DOE.

43. On April 13, 2001. DOE issued a press 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 a 20%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 of a 60-day review of a rule proposed in the last

days of the 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 COMMENT 240

EE-RM/STD-98-440-1F :AlfD 

-14-

4l. On February 19, 2001, the Air Conditioning and Refrigeration Institute 

(ARl), a trade association that represents a number of manufacturers of air conditioners, 

filed a Petition for Review of the Final Conservation Rule in the United States Court of 

Appeals for the Fourth Circui1. ARI et al. v. United States Department of Energy. 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 the joint request of 

ARl and the U.S. Department of Justice, suspended the briefing in the ARl Petition for 

Revie\v proceeding pending DOE's determination of a "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 of a 60-day review of a rule proposed in the last 

days of the Clinton Administration, which proposed a 13113 SEER standard." Id. 

(emphasis added). Notwithstanding this language, the Final Conservation Rule was a 

final rule under the AP A 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 of the Final Conservation Rule indefinitely

"pending the outcome of petitions by [ARI] for reconsideration by DOE and for judicial

review by the United States Court of Appeals 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 of the 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

judicial review provisions of the APA also provide for a change of

"effective date" as follows: "When an agency finds that justice so

requires, it may postpone the effective date of action 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 of Federal Regulations as an effective final rule, and

manufacturers would have to begin the process of coming 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 a further notice of proposed

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 of ARI's petition for judicial review and the related

petition for administrative reconsideration, justice requires that DOE

postpone the effective date of the 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 COMMENT 240

EE.RM/STD.98-440</#~<fO 

-15-

44. On April 20, 2001, DOE published a second final rule in the Federal 

Register purporting to delay the effective date of the Final Conservation Rule indefinitely 

"pending the outcome of petitions by [ARI] for reconsideration by DOE and for judicial 

review by the United States Court of Appeals 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 of the 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 

judicial review provisions of the APA also provide for a change of 

"effective date" as follows: "When an agency finds that justice so 

requires, it may postpone the effective date of action 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 of Federal Regulations as an effective final rule, and 

manufacturers would have to begin the process of coming 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 a further notice of proposed 

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. 

46. DOE concluded that: 

During the pendency of ARI's petition for judicial review and the related 

petition for administrative reconsideration, justice requires that DOE 

postpone the effective date of the 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. 
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 a diverse set of interested parties,

including manufacturers and their representatives" as well as states, electric utilities and

consumers, it is unlikely that a new round of comments would provide any additional

information to support reduction of the SEER 13 standard set forth in the Final

Conservation Rule.

48. As with the initial amendment of the 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 of the Final Conservation Rule,

and made the stay determination effective immediately. DOE stated that:

To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and

comment procedures based on the good cause exceptions in 5 U.S.C. 553(b)(B)

and 553(d)(3). Seeking public comment and delaying the effect of today's action

are impracticable, unnecessary and contrary to the public interest for several

reasons. Postponement of the imminent effective date of April 23, 2001, avoids

confusion among manufacturers as to whether to begin the process of coming into

compliance. It avoids expenditures by manufacturers in reliance on a rule with

respect to which there is a significant likelihood of modification. It also

facilitates reconsideration of a final rule that, if allowed 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 claimed justification - the possible "confusion among

manufacturers" due to the "significant likelihood of modification" of the Final

Conservation Rule - is entirely circular and of its own making. Any "confusion" stems

only from DOE's own about-face. Furthermore, DOE's reliance on the potential burdens

to manufacturers to justify delaying the effective date of the Final Rule is unsupported.

As discussed above, in its prlI 13.; O200 I le:_ss rclcasc. DOE has recently stated that an

EE-RM-STD-98-440 COMMENT 240

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 of interested parties, 

including manufacturers and their representatives" as well as states, electric utilities and 

consumers, it is unlikely that a new round of comments would provide any additional 

information to support reduction of the SEER 13 standard set forth in the Final 

Conservation Rule. 

48. As with the initial amendment of the Final Conservation Rule's effective 

date, DOE provided no notice or opportunity for public comment \,,'ith respect to this 

second final rule indefinitely delaying the effective date of the 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 

comment procedures based on the good cause exceptions in 5 U.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 of the imminent effective date of April 23, 2001, a\'oids 

confusion among manufacturers as to whether to begin the process of coming into 

compliance. It avoids expenditures by manufacturers in reliance on a rule with 

respect to which there is a significant likelihood of modification, It also 

facilitates reconsideration of a final rule that, if allowed 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 claimed justification - the possible "confusion among 

manufacturers" due to the "significant likelihood of modification" of the Final 

Conservation Rule - is entirely circular and of its own making. Any "confusion" stems 

only from DOE's own about-face. Furthermore, DOE's reliance on the potential burdens 

to manufacturers to justify delaying the effective date of the Final Rule is unsupported, 
EE-RM/STD-98-440- _ /7

-17-

amended standard requiring 12 SEER and 7.4 HSPF is supportable 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 of the 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 .!4Lo¥.9?.Q l .sg, IIi be pIUoposing.

.ll ol 1 .. \ 2.00) 1 DOE -liDannouii 'ri l-hii cd ll tilhe Fccci-l R stl-r i s

pIc:i:sic to \\ ithdraw its .anltlav no 200(1 fllral seitti h-uLc fort c C1lCI\ n COscr\'alioll

s!1flcU(Ls d\- rc': csidenil eccint.ll ir collditiol lers ald cln -. al a!ir- coll(ditiollillf he }l t 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 thei lowcr 12 SEER erclu'v efficiency stiandard. See 66 Fed. Rce. at .S23.

I]. Inl ldditioli. DOE alnnolnllccd thait 11 hs "10o\' concluded tlhlt flC Jal \'

: . 00 ! 1 - 1 FI' lI. I I Ll l b E . l I-t L d l t lC oire ra.ts A. RIs ti lI i r

jc!i. ( sL cr-atii):;J 9 I. .I:.' DOF_] .0 s ls) l\\so is ic \l a n l-l-tor (11 elnts to 3cillc ail_

implcmeCnt statutory, 1 imitations on its authority to prCscribe aCmendd cncrv

colnscl'alion staidards." Id. DOE stated that it would rcccive public commeni oni. a01nd

hold a public hearNim on. at least somc aspcts of thescj piMosals. Id.

CLAIMS FOR RELIEF

FIRST CAUSE OF ACTION

(Declaratory Judgment Under EPCA)

EE-RM-STD-98-440 COMMENT 240

EE-RM/STO-98-440 - tr A L/ 1J 

-17 -

amended standard requiring 12 SEER and 7.4 HSPF is supportable and wtH ~\:.Q.!JJg be 

proposed. Under the 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 of the 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 '.: . 

CLAIMS FOR RELIEF 

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[] of a covered 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 r Ilc 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 of central air conditioners and heat pumps in v\iolation of 42 U.S.C. §

6295(o)(1). By noticc j!ibtlished in tjhe LJui2. 2?()) 1 Fcderal Rc.is1tr. DOE h1aC9 no\

forlnallj mlade this rcposal toL decease the enelL.. cffcllencv standard set forth in the

Fi nal Conseclrat ion Rulec

..... Atliho..,l h DOE 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 in fact has alrcadv

reached final dcterminations on crucal apects of til rul eiakinL. Thescinal

EE-RM-STD-98-440 COMMENT 240

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 of a 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 under 42 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 of central air conditioners and heat pumps in violation of 42 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 Icc aI a. nd

poicy iss-ues that DOE considered in dccidine \lltc1 tro se xitdraw.d'-aal of the

Janu ar . 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. s c also i.. lailll n .on that l] nj

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

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

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

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

rn iIicc standa Iscd. aos sct fatrl in DOE Jlprpo5. V's a001 Fldral Rselistc Notic. because

such action would violate the express provisions of 42 U.S.C. § 6295(o )( ), and would be

now ci \e s to certa..In a5spec.ts 01 its anal Si ] sof manUnif urer andconlsurLC' C impact .c

arbitrary and capricious under the APA. declaratory Plaintiffs are also entitled pursuant to ato injunctiondgment 28 US.C

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

in the Final Conservation Rule. : iicl Ldi n. .but not IIlmited to the -Nw ithdrawl'- o f the Finalct

Conmser.'atoon Rule. aid the -sibstitti o.i" for it of a nw. lower I2 S EE 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 of 42 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 COMMENT 240

EE-RM/STD-98-440 .... ifb? 'fD 

-19-

56. Plaintiffs are entitled to a declaratory judgment pursuant 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 of 42 U.s.c. § 6295(0)(1), and would be 

arbitrary and capricious under the AP A. 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) 
-20-\ ' EE-RM/STD-98-440't{ .Q

57. DOE's February 2, 2001 final rule delaying the effective date of the 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 of the 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 of critical

importance to all consumers.

59. DOE's February 2, 2001 rulemaking action was not an interpretative rule,

a general statement of policy, or a rule of agency organization, procedure or practice

within the meaning of Section 553(b)(A) of the 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 of the Final Conservation Rule more than 30 days before the Final Conservation

Rule's effective date.

62. DOE's failure to publish its February 2, 2001 final rule delaying the

effective date of the 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 COMMENT 240

-20- EE-RM/STD-98-44~1F-~~V 

57. DOE's February 2,2001 final rule delaying the effective date of the 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 of the Final Conservation Rule yiolates the AP A. 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 of critical 

importance to all consumers. 

59. DOE's February 2, 2001 rulell1akir.g action was not an interpretative rule. 

a general statement of policy, or a rule of agellCY or~.1nization, procedure or pr9ctice 

within the meaning of Section 553(b)(A) of the f\PA. 

60. DOE did not have good cause to find that providing notice and 

opportunity to conunent 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 of the Final Conservation Rule more than 30 days before the Final Conservation 

Rule's effective date. 

62. DOE's failure to publish its February 2, 2001 final rule delaying the 

effective date of the 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 a restriction" or an interpretative rule or

statement of policy within the meaning of the APA. 5 U.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 of Section 553(d)(3).

5 U.S.C. § 553(d)(3).

EE-RM-STD-98-440 COMMENT 240

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 or relieves a restriction" or an interpretative rule or 

statement of policy within the meaning of the APA. 5 U.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 of Section 5 53( d)( 3), 

5 U.S.c. § 553(d)(3). 
EE-RM/STD-98-440 -j- a4 U

-22-

FOURTH CAUSE OF ACTION

(60-Day Delay Rule in Violation of Law)

65. The sole authority cited for DOE's February 2, 2001 final rule delaying

the effective date of the Final Conservation Rule was the Card Memo.

66. The Card Memo specifically excludes actions taken "pursuant to statutory

or judicial 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 no justification for DOE's

February 2, 2001 final rule.

69. DOE's February 2, 2001 rulemaking was arbitrary and capricious, an

abuse of discretion 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. 5 U.S.C. §§ 553(b), (c).

EE-RM-STD-98-440 COMMENT 240

EE-RM/STO-98-440 -:It ~ 'f·O 

-22-

FOURTH CAUSE OF ACTION 

(60-Day Delay Rule in Violation of Law) 

65. The sole authority cited for DOE's February 2, 2001 final rule delaying 

the effective date of the Final Conservation Rule was the Card Memo. 

66. The Card Memo specifically excludes actions taken "pursuant to statutory 

or judicial deadlines." See Exhibit D. 

67. The Final Air Conditioner and Heat Pump Conser\'ati01 Rule was issued 

pursuant to a statutory deadline imposed under 42 U.S.c. § 6295(d)(3rA). 

68. By its own terms, the Card Memo provides no justificatiop for DOE's 

February 2, 2001 final rule. 

69. DOE's February 2, 2001 rulemaking was arbitrary and capricious, an 

abuse of discretion 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 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 20,200 I 

final rule amending the Final Air Conditioner 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, a general

statement of policy, or a rule of agency organization, procedure or practice within the

meaning of Section 553(b)(A) of the 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 of APA 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 of the Final 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 of the Final Air Conditioner and Heat Pump Conservation Rule more than

30 days before its effective date violated the APA. 5 U.S.C. § 553(d).

76. DOE's April 20, 2001 rulemaking was not "a substantive rule which

grants or recognizes an exemption or relieves a restriction" or an interpretative rule or

statement of policy within the meaning of Section 553(d)(1)-(2). 5 U.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 of Section 553(d)(3), 5

U.S.C. § 553(d)(3).

EE-RM-STD-98-440 COMMENT 240

EE-RM/STD-98-440-:tt ~ £fO . 

-23-

72. DOE's April 20, 2001 rulemaking was not an interpretative rule, a general 

statement of policy, or a rule of agency organization, procedure or practice within the 

meaning of Section 553(b)(A) of the APA. 

73. DOE did not have good cause to find that providing notice and 

opportunity to comment prior to issuing its April 20, 200 1 final rule was impracticable, 

unnecessary or contrary to the public interest within the meaning of APA 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 oftbe Final 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 of the 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 substantive rule which 

grants or recognizes an exemption or relieves a restriction" or an interpretative rule or 

statement of policy w·itbin tbe meaning of Section 553(d)(1)-(2). 5 U.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 of Section 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, 5 U.S.C. § 705, as justification

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 of action 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 purported justification 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 purported justification for its April

20, 2001 action was also improper because Section 705 does not allow an agency to

postpone the effective date of an action pending consideration by the agency of a petition

for reconsideration.

82. DOE abused its discretion in finding that "justice . . . requires" delay of

the effective date of the 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 of procedure

required by law pursuant to APA Section 706(2)(A), 5 U.S.C. § 706(2)(A).

EE-RM-STD-98-440 COMMENT 240

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

-24-

SEVENTH CAUSE OF ACTION 

(Improper Reliance on AP A § 705 for Indefinite Delay Rule) 

78. DOE claimed to rely on APA Section 705,5 U.S.c. § 705, as justification 

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 of action 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 purported justification 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 purported justification for its April 

20, 2001 action was also improper because Section 705 does not allow an agency to 

postpone the effective date of an action pending consideration by the agency of a petition 

for reconsideration. 

82. DOE abused its discretion in finding that "justice ... requires" delay of 

the effective date of the Final Conservation Rule pursuant to AP A 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 of procedure 

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 a declaratory 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 )J inelUdi in but not limilted to the JFinal \vithcra\\ al- of the Conser-vltio. Rule.

and the Stilsttltiop lor it )o la ne\. lo\\ erp 12 SEERl- c3 ncclneI \ flcicnLcv stalickiird as sct

l!'th i DO'J!!.E. s!.l. .Ju.!: 2 ! Fed.iral .0 c . 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 of the 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 of the Rule; and

4. That plaintiffs be granted such other and further relief that 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

EE-RM-STD-98-440 COMMENT 240

-25-

EE.RM/STD.98 .. 440-#~ 'Iv 

PRA YER FOR RELIEF 

WHEREFORE, Plaintiffs request: 

1. That this Court enter a declaratory judgment pursuant 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 of the 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 of the Rule; and 

4. That plaintiffs be granted such other and further relief that this Court deems 

just and equitable. 

Dated: September _ , 2001 

By: 

ELIOT SPITZER 

A TTORNEY 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 of Law

The Capitol

Albany, New York 12224

(518) 473-5843

BILL LOCKYER

ATTORNEY GENERAL OF THE

STATE OF CALIFORNIA

By:

RICHARD M. FRANK

Chief Assistant 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

___ _________ _STATE OF \VERMONT

By:

ERICK TITRUD

, .,_ .,, . _ ,~_^_ MRSCIARROTTA

.,. _ .. .. ^. „ „......_.___„„....______. _ Attornev __AlRjn' fi Geinerials ;!L}. Office

EnDironmnietal Protection

EE-RM-STD-98-440 COMMENT 240

• 

, . . . 

By: 

By: 

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

-26-

New York State Department of Law 

The Capitol 

Albany, New York 12224 

(518) 473-5843 

BILL LOCKYER 

A TTOR.NEY GENERAL OF THE 

ST A TE OF CALIFOR.l\JIA 

RICHARD M. FR.A.NK 

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 

RICHARD BLUMENTHAL 

ATTORNEY GENER.A.L 

ST ATE 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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109 State Strlcct

Montpcelicr. \lermonlt ()5609-1001

__ _________ _2 __28-51 ___ (802') 82S-55 18

G. STEVEN ROWE

A TTORN EY G.ENER AL

STA.TE OF MAINE

By: ^____ _ ________________ . B __. c X. __

Paul Stern

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EE-RM-STD-98-440 COMMENT 240

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