FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AIR CONDITIONING AND 

REFRIGERATION INSTITUTE; GAS

APPLIANCE MANUFACTURERS

ASSOCIATION; ASSOCIATION OF HOME

APPLIANCE MANUFACTURERS;

NATIONAL ELECTRICAL

MANUFACTURERS ASSOCIATION,

No. 03-16621 Plaintiffs-Appellees,

D.C. No.

v.  CV-02-02437-

ENERGY RESOURCES WBS/PAN

CONSERVATION AND DEVELOPMENT OPINION COMMISSION; WILLIAM J. KEESE,

Chairman; ROBERT PERNELL,

Commissioner; AURTHUR H.

ROSENFELD, Commissioner; JAMES

D. BOYD, Commissioner; JOHN L.

GEESMAN, Commissioner,

Defendants-Appellants. 

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, Chief Judge, Presiding

Argued and Submitted

November 1, 2004—San Francisco, California

Filed February 3, 2005

Before: Betty B. Fletcher, John T. Noonan, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas;

Dissent by Judge Noonan

1471
COUNSEL

William M. Chamberlain, Jonathan Blees, Monica Schwebs,

Paul A. Kramer, Jr., William W. Westerfield III, Sacramento,

California, for the appellants. 

John A. Hodges, Bruce L. McDonald, Dineen Pashoukos

Wasylik, Peter J. Riehm, Wiley Rein & Fielding LLP, Washington, D.C., for the appellees. 

OPINION

THOMAS, Circuit Judge: 

This case presents the question of whether federal law preempts California’s appliance regulations requiring appliance

manufacturers to submit data about their appliances to California’s Energy Resources Conservation and Development

1474 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION
Commission (“Commission”), mark their appliances with

basic information such as brand name and energy performance, and be subjected to related compliance and enforcement rules. We conclude that federal law does not preempt

California’s regulations. We therefore reverse the district

court’s decision finding the regulations preempted and permanently enjoining the Commission from enforcing these regulations, vacate the injunction, and remand.

I

California boasts an extensive and laudable appliance efficiency program. As part of California’s program, the Commission has, since 1977, required manufacturers to submit

data to it. The data collected by the Commission pursuant to

section 1606 of Title 20 of the California Code of Regulations

is maintained in an electronic database, which contains information on over 135,000 appliance models. The Commission’s

database provided the foundation of information for the Environmental Protection Agency’s Energy Star program and is

used frequently by consumers, energy consultants, contractors, researchers, utility program managers, manufacturers,

and other governmental agencies. As part of California’s

appliance program, the Commission also requires manufacturers to put basic information—such as the manufacturer’s

brand name and the appliance’s size and energy performance

—on their appliances. Cal. Code Regs. tit. 20, § 1607(b)-

(d)(2). The Commission enforces the data submittal and

marking requirements it places on manufacturers under section 1608. Cal. Code Regs. tit. 20, § 1608. 

Plaintiffs-Appellees, four major trade organizations representing appliance manufacturers nationwide (“Trade Associations”), claim that these California regulations are preempted

by the Energy Policy and Conservation Act, Pub. Law No.

94-163, 89 Stat. 871 (1975) (“EPCA”), specifically by 42

U.S.C. §§ 6297(a) and 6316(a)-(b). After these regulations

were adopted but before they went into effect, Trade AssociaAIR CONDITIONING v. ENERGY RESOURCES CONSERVATION 1475
tions filed suit for declaratory and injunctive relief in the

United States District Court for the Eastern District of California. The district court held that the California regulations

are preempted. The court, first preliminarily and then permanently, enjoined the Commission from enforcing the regulations. The Commission timely appealed. 

We review the district court’s decision regarding preemption de novo, Chamber of Commerce v. Lockyer, 364 F.3d

1154, 1160 (9th Cir. 2004), and the district court’s grant of

permanent injunction for abuse of discretion, Ting v. AT&T,

319 F.3d 1126, 1134-35 (9th Cir. 2003).

II

Preemption can occur in one of three ways: express preemption by statute, occupation of the field, or conflict

between state and federal regulation. English v. General Elec.

Co., 496 U.S. 72, 78-79 (1990). All parties agree that this case

presents a question of express preemption. Thus, this case

boils down to the interpretation of the statutory provision that

allegedly preempts state law. Medtronic, Inc. v. Lohr, 518

U.S. 470, 484 (1996); Cipollone v. Liggett Group, Inc., 505

U.S. 504, 517 (1992). 

To determine whether California’s regulations are preempted by EPCA, we are instructed to first “ ‘identify the

domain expressly pre-empted’ by that language.” Medtronic,

518 U.S. at 484 (quoting Cipollone, 505 U.S. at 517). “Since

pre-emption claims turn on Congress’s intent, we begin as we

do in any exercise of statutory construction with the text of

the provision in question, and move on, as need be, to the

structure and purpose of the Act in which it occurs.” New

York State Conference of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645, 655 (1995) (internal citations omitted). 

Our interpretation of the federal statute is informed by two

presumptions about the nature of preemption. Medtronic, 518

1476 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION
U.S. at 485. First, we address claims of preemption with the

starting presumption that Congress did not intend to supplant

state law. Id. We assume that the “historic police powers of

the States were not to be superseded by the Federal Act unless

that was the clear and manifest purpose of Congress.” Id.

(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947)). This presumption against preemption leads us to the

principle that express preemption statutory provisions should

be given a narrow interpretation. Id.; Cipollone, 505 U.S. at

518. 

Second, our analysis of the scope of the statute’s preemption is guided by the Supreme Court’s oft-stated comment that

“the purpose of Congress is the ultimate touchstone in every

pre-emption case.” Medtronic, 518 U.S. at 485 (internal quotations marks omitted). “As a result, any understanding of the

scope of a pre-emption statute must rest primarily on ‘a fair

understanding of congressional purpose.’ ” Id. at 485-86

(quoting Cipollone, 505 U.S. at 530, n. 27) (emphasis omitted). 

Also relevant to our interpretation of the scope of the statute’s preemption are the “structure and purpose of the statute

as a whole, as revealed not only in the text, but through [our]

reasoned understanding of the way in which Congress

intended the statute and its surrounding regulatory scheme to

affect business, consumers, and the law.” Id. at 486 (internal

citation and quotation marks omitted).

III

Thus, we turn to the language of the express preemption

provision at issue. 42 U.S.C. § 62971 provides, in relevant

part:

1

42 U.S.C. § 6316(a)-(b), the other preemption provision at issue in this

case, incorporates § 6297(a) with a few subtle distinctions that are not relevant to this case. 42 U.S.C. § 6316(a)-(b) relates to commercial and

industrial appliances whereas § 6297(a) relates to residential appliances.

Hereinafter, when we refer to 42 U.S.C. § 6297(a), in doing so, we also

refer to § 6316(a)-(b). 

AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION 1477
(a) Preemption of testing and labeling requirements 

(1) Effective on March 17, 1987, this part supersedes

any State regulation insofar as such State regulation

provides at any time for the disclosure of information with respect to any measure of energy consumption or water use of any covered product if—

(A) such State regulation requires testing or the

use of any measure of energy consumption, water

use, or energy descriptor in any manner other than

that provided under section 62932 of this title; or

(B) such State regulation requires disclosure of

information with respect to the energy use, energy

efficiency, or water use of any covered product

other than information required under section 62943

of this title.

42 U.S.C. § 6297. 

A. Data Submittal Regulations

The first California regulation that 42 U.S.C. § 6297(a)

arguably preempts is Cal. Code Regs. tit. 20, § 1606, which

requires appliance manufacturers to submit specified information to the Commission for each appliance for sale or sold in

California. Such information includes the name of the manufacturer, the brand name, the model number, and data produced during tests the manufacturer is required to perform

under Cal. Code Regs. tit. 20, § 1604. See Cal. Code Regs. tit.

20, §§ 1606(a), Table U. 

[1] To determine whether 42 U.S.C. § 6297(a) preempts the

data submittal requirements of Cal. Code Regs. tit. 20,

2

42 U.S.C. § 6293 establishes federal appliance testing requirements. 

3

42 U.S.C. § 6294 establishes federal appliance labeling requirements.

1478 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION
§ 1606, we look to the text of § 6297(a). Section 6297(a) preempts any state regulation that provides “at any time for the

disclosure of information with respect to any measure of

energy consumption or water use of any covered product if

. . . such State regulation requires disclosure of information

with respect to the energy use, energy efficiency, or water use

of any covered product other than information required under

section 6294.” The district court found the text of § 6297(a),

in particular the meaning of the phrase “disclosure of information,” ambiguous, and so do we. 

[2] Beginning with the presumption that Congress did not

intend to supplant state law, we must narrowly interpret

§ 6297(a) in general, and the phrase “disclosure of information” in particular. See Medtronic, 518 U.S. at 485. A narrow

interpretation is consistent with our direction to find preemption when preemption is the “clear and manifest purpose of

Congress.” Id. The narrow interpretation the Commission

advances is supported by the statutory text and is consistent

with Congress’s purpose. Applying a narrow interpretation of

§ 6297(a), we hold that it does not preempt the data submittal

requirements contained in Cal. Code Regs. tit. 20, § 1606. 

The rules of statutory construction support the narrow interpretation of “disclosure of information.” One rule of statutory

construction is that “identical words used in different parts of

the same act are intended to have the same meaning.” Commissioner of Internal Revenue v. Lundy, 516 U.S. 235, 250

(internal citations and quotation marks omitted). The phrase

“disclosure of information” is used twice in § 6297(a)(1) and

should be given the same meaning in both instances. In

§ 6297(a)(1), “disclosure of information” concerns information with respect to any measure of energy consumption or

water use. In § 6297(a)(1)(B), “disclosure of information”

requires manufacturers to place certain information on

consumer-directed product labels, as required by 42 U.S.C.

§ 6294. See 42 U.S.C. § 6294. In both instances, “disclosure

of information” may be interpreted to generally refer to the

AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION 1479
disclosure of information on labels directed to consumers at

point of sale or use. Thus, a narrow interpretation of

§ 6297(a)(1) is supported by the statutory text, and this interpretation should be applied. 

Furthermore, the statute as a whole compels a narrow interpretation of “disclosure of information.” Congress did not use

the phrase “disclosure of information” in EPCA when it referenced manufacturers providing data to the Department of

Energy (“DOE”); instead, Congress used the phrase “submit

information or reports.” 42 U.S.C. § 6296(d). 42 U.S.C.

§ 6296(d) allows the DOE to require appliance manufacturers

to provide the DOE with information about energy efficiency.

42 U.S.C. § 6296(d) provides, in relevant part, “the Secretary

may require . . . each manufacturer of a covered product to

submit information or reports to the Secretary.” Id.

§ 6296(d)(1) (emphasis added). When Congress referred to

the submittal of data to a government entity in EPCA, it used

the phrase “submit information or reports,” not “disclosure of

information.” The statute as a whole does not support a broad

interpretation of “disclosure of information.” On the contrary,

it suggests that “disclosure of information” only pertains to

labeling directed to consumers at point of sale or use.4

4The narrow interpretation of the phrase “disclosure of information” is

also supported by the relevant FTC regulations. 16 C.F.R. Part 305 establishes regulations regarding the consumer-directed labeling of appliances

and the testing required to accurately label appliances. 16 C.F.R. pt. 305.

Part 305 also includes regulations pertaining to the form and content of the

labels, §§ 305.11-.14, and the testing manufacturers must perform in order

to label with information regarding their appliances’ energy efficiency or

use, §§ 305.5-.10. The sections pertaining to the form and contents of the

labels are clustered under the heading of “Required Disclosures.” Section

305.8, which requires manufacturers to submit annually to the FTC a

report listing the annual energy consumption or energy efficiency rating

for each basic model in current production, is titled “Submission of data.”

The FTC regulations use “disclosure” to refer to consumer-directed labeling and “submission” to refer to data-submittal to a government entity.

Therefore, the FTC regulations, like EPCA, use “disclosure” to refer to

consumer-directed labeling and “submission” or “submit” to refer to datasubmittal to the government. 

1480 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION
In addition, the narrow interpretation of “disclosure of

information” rests on “a fair understanding of congressional

purpose” as evidenced by the relevant legislative history.

Medtronic, 518 U.S. at 485-86 (quoting Cipollone, 505 U.S.

at 530, n.27) (internal quotation marks and emphasis omitted).

The original version of the current labeling and testing preemption provision was first enacted in the EPCA, Pub. Law

No. 94-163, 89 Stat. 871 (1975). Its purpose appears to be

unchanged since then. 

Congress enacted EPCA in 1975, in the aftermath of the oil

embargo imposed against the United States by certain countries in the years prior. Natural Res. Def. Council v. Herrington, 768 F.2d 1355, 1364 (D.C. Cir. 1985). The oil embargo

called attention to the serious economic and national security

problems associated with our nation’s continued reliance on

foreign energy resources. Id. In response, President Ford called for “the strongest and most far-reaching energy conservation program we have ever had.” Id. (quoting 11 Weekly

Comp. Pres. Doc. 40, 41 (Jan. 20, 1975)) (internal quotation

marks omitted). Subsequently, Congress enacted EPCA, and

in doing so, established a comprehensive energy policy. Id.

EPCA was designed, in part, to reduce the United States’

“domestic energy consumption through the operation of specific voluntary and mandatory energy conservation programs.” S. Rep. No. 94-516, at 117 (1975), reprinted in 1975

U.S.C.C.A.N. 1956, 1957. Part of EPCA’s energy conservation program was to “[r]equire energy labeling of major home

appliances and certain other consumer products, and authorize

energy efficiency standards for major appliances.” Id. at 118.

Congress believed that better informed consumers and voluntary efforts by manufacturers would make energy efficiency

standards unnecessary. H. Rep. No. 94-340, at 95 (1975),

reprinted in 1975 U.S.C.C.A.N. 1762, 1857. Therefore, Congress required manufacturers to label their appliances and provided that the Secretary of the Federal Energy Administration

should utilize energy efficiency standards if the labeling proAIR CONDITIONING v. ENERGY RESOURCES CONSERVATION 1481
gram proved ineffective. Id. at 99. As a result, EPCA’s

express preemption provisions dealt primarily with the possibility that states would adopt different test procedures or consumer labeling requirements. See Pub. Law No. 94-163,

§ 327, 89 Stat. 871, 926-27. EPCA preempted state regulations insofar as they were “other than” the applicable federal

rules for testing and labeling. Id. § 327(a)(1), 89 Stat. at 927.

EPCA, however, allowed state regulations that differed from

the federal regulations if the state regulations were justified

by a substantial state or local need, did not interfere with

interstate commerce, and were more stringent than the federal

standard. Id. § 327(b)(2), 89 Stat. at 927. 

The National Energy Conservation and Policy Act, Pub. L.

No. 95-619, 92 Stat. 3206 (1978) (“NECPA”), amended portions of EPCA’s preemption provisions. States were still

allowed to adopt regulations identical to federal regulations.

See EPCA § 327(a)(2), 89 Stat. at 927. States were allowed to

prescribe regulations more stringent than federal regulations

— or, if there was no federal regulation, state could implement its own standard — only if the Secretary found there was

a significant state or local interest to justify the state’s regulation and the regulation would not unduly burden interstate

commerce. NECPA § 424(a), 92 Stat. at 3264. NECPA did

not amend EPCA’s preemption provisions regarding testing

or labeling. Id.

On a larger scale, NECPA created a nationwide conservation program for appliances and required the DOE to prescribe minimum energy efficiency standards for thirteen

covered products. Herrington, 768 F.2d at 1367; see H.R.

Rep. No. 95-1751, at 114 15 (1978). However, instead of

adopting energy efficiency standards, the DOE concluded in

1982 that establishing minimum energy efficiency standards

for the relevant appliances would not result in significant

energy conservation and would not be economically justified.

H.R. Rep. No. 100-11, at 27. Thus, the DOE determined no

efficiency standards were required under NECPA. Id. “While

1482 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION
DOE adopted its policy of the ‘no-standard’ standards, it also

initiated a general policy of granting petitions from States

requesting waivers from preemption. As a result, a system of

separate State appliance standards ha[d] begun to emerge and

the trend [was] growing.” S. Rep. No. 100-6, at 4. The D.C.

Circuit held that the DOE erroneously concluded that “nostandard” standards was appropriate and instructed the DOE

to adopt federal efficiency standards. Herrington, 768 F.2d at

1433. 

Because the DOE could not establish federal appliance efficiency standards immediately, major manufacturer trade associations and the Natural Resources Defense Council

negotiated a compromise solution, which Congress enacted as

the National Appliance Energy Conservation Act of 1987,

Pub. L. No. 100-12, 101 Stat. 103 (1987) (“NAECA”), codified at 42 U.S.C. §§ 6291-6309. H.R. Rep. No. 100-11, at 27-

28; S. Rep. No. 100-6, at 4-5, reprinted in 1987 U.S.C.C.A.N.

52, 54-55. NAECA established federal energy efficiency standards for residential appliances; DOE action was not required

to set these standards. NAECA § 5, 101 Stat. at 107-17. 

NAECA also amended NECPA’s preemption provisions.

NAECA provided that states could no longer adopt energy

efficiency standards that were identical to the federal standards. 42 U.S.C. § 6297(c). NAECA also made it more difficult for states to obtain waivers of preemption for more

stringent state efficiency standards; in order to obtain a

waiver, NAECA required states to establish by a preponderance of the evidence that state regulation was justified by

unusual and compelling state or local interests. 42 U.S.C.

§ 6297(d)(1)(B)-(C); see S. Rep. No. 100-6, at 9. The reason

for the broader preemption standards was to counteract the

systems of separate state appliance standards that had

emerged as a result of the DOE’s “general policy of granting

petitions from States requesting waivers from preemption,”

which caused appliance manufacturers to be confronted with

“a growing patchwork of differing State regulations which

AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION 1483
would increasingly complicate their design, production and

marketing plans.” S. Rep. No. 100-6, at 4. As for the preemption provisions regarding testing and labeling, NAECA, “essentially restate[d] existing law, and provide[d] that the Act

supersedes State and local regulations regarding testing and

labeling in certain cases.” Id. at 9. 

The latest legislation amending EPCA is the Energy Policy

Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (1992)

(“EPAct”), codified at 42 U.S.C. §§ 6311-17, which expanded

the federal appliance program to include energy efficiency

standards for commercial and industrial appliances. 42 U.S.C.

§§ 6295(j)-(k), 6313. EPAct incorporated the preemption provisions of 42 U.S.C. § 6297, with a few subtle distinctions,

which are not relevant to this case. 42 U.S.C. § 6316(a)-(b).

EPAct’s legislative history is silent on preemption. 

[3] In sum, the legislative history of the relevant Acts supports a narrow interpretation of the preemption provision.

There is no indication that Congress, in the preemption provision of EPCA as amended by subsequent Acts, intended to

preempt state regulations requiring the submission of data to

state government agencies. The legislative history instead

demonstrates that Congress intended to preempt state energy

efficiency standards, testing procedures, and consumer labeling requirements. We therefore conclude that because “disclosure of information” only refers to consumer-directed labeling

at point of sale or use, Cal. Code Regs. tit. 20, § 1606 is not

preempted by U.S.C. § 6297(a)(1).5

B. Marking Regulations

The second set of California’s regulations the Trade Associations argue is preempted by federal law are the appliance5We also hold that Cal. Code Regs. tit. 20, § 1606 is not preempted by

42 U.S.C. § 6316(a)-(b), which is substantively the same as § 6297(a)(1).

1484 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION
marking requirements of sections 1607(b), (c), (d)(1), and

(d)(2) of Title 20 of the California Code of Regulations. 

Section 1607(b)6 and (c)7 of Title 20 of the California Code

of Regulations—which require appliances to be labeled with

the manufacturer’s name, brand name, or trademark; the

appliance’s model number; and date of manufacture—are not

preempted by federal law because the subsections do not

“provide[ ] at any time for the disclosure of information with

respect to any measure of energy consumption or water use of

any covered product.” 42 U.S.C. § 6297(a)(1).8 The informa6Cal. Code Regs. tit. 20, § 1607(b) provides: 

Except as provided in subsection (c), the following information

shall be permanently, legibly, and conspicuously displayed on an

accessible place on each unit; 

(1) manufacturer’s name or brand name or trademark; 

(2) model number; and 

(3) date of manufacture, indicating (i) year and (ii) month or

smaller (e.g. week) increment. If the date is in a code that is not

readily understandable to the layperson, the manufacturer shall

immediately, on request, provide the code to the Energy Commission. 

Id. § 1607(b). 

7Cal. Code Regs. tit. 20, § 1607(c), titled “Exceptions to Subsection

(b),” provides, in relevant part: 

(1) For plumbing fixtures and plumbing fittings, the information

required by subsection (b) shall be permanently, legibly, and conspicuously displayed on an accessible place on each unit or on

the unit’s packaging. 

(2) For lamps, the information required by subsection (b) shall be

permanently, legibly, and conspicuously displayed on an accessible place on each unit, on the unit’s packaging, or, where the unit

is contained in a group of several units in a single package, on

the packaging of the group. 

Id. § 1607(c). 

8

“Measure of energy consumption” is defined as “energy use, energy

efficiency, estimated annual operating cost, or other measure of energy

consumption.” 42 U.S.C. § 6291(8). 

AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION 1485
tion required to be placed on appliances under section 1607(b)

and (c) is not “information with respect to any measure of

energy consumption or water use” unless one expansively

interprets “with respect to” and “measure of energy consumption,” 42 U.S.C. § 6297(a)(1). In accordance with the presumptions informing our interpretation of express preemption

provisions, we interpret these terms narrowly as such an interpretation is consistent with the statutory text. 

[4] “Measure of energy consumption” is defined as “energy

use, energy efficiency, estimated annual operating cost, or

other measure of energy consumption.” 42 U.S.C. § 6291(8)

(emphasis added). We decline to interpret “other measure of

energy consumption,” the only relevant term left undefined in

the statute, so broadly that it encompasses the information

required to be placed on appliances under California’s sections 1607(b) and (c). Under the maxim of statutory interpretation known as ejusdem generis, “or other measure of energy

consumption” embraces only objects similar in nature to those

enumerated by the preceding specific words. Circuit City

Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001). “Or other

measure of energy consumption” must be construed to give

effect to the terms preceding the phrase and must be defined

by reference to the terms preceding it. Id. at 115. Therefore,

“or other measure of energy consumption” does not broaden

“Energy use” is defined as “the quantity of energy directly consumed

by a consumer product at point of use . . . .” Id. § 6291(4). “Energy efficiency” is defined as “the ratio of the useful output of services from a consumer product to the energy use of such product . . . .” Id. § 6291(5).

“Estimated annual operating cost” is defined as “the aggregate retail cost

of the energy which is likely to be consumed annually, and in the case of

showerheads, faucets, water closets, and urinals, the aggregate retail cost

of water and wastewater treatment services likely to be incurred annually,

in representative use of a consumer product . . . .” Id. § 6291(7). 

“Water use” is defined as “the quantity of water flowing through a

showerhead, faucet, water closet, or urinal at point of use . . . .” Id.

§ 6291(31)(A). 

1486 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION
the meaning of “measure of energy consumption,” which is

defined, in part, as: “the quantity of energy directly consumed

by a consumer product at point of use,” 42 U.S.C. § 6291(4);

“the ratio of the useful output of services from a consumer

product to the energy use of such product,” id. § 6291(5); and

“the aggregate retail cost of the energy which is likely to be

consumed annually,” id. § 6291(7). As such, “measure of

energy consumption” does not encompass the information

California requires manufacturers to place on their appliances,

such as the manufacturer’s name and the appliance’s model

number and date of manufacture. 

The issue then becomes how to interpret “with respect to.”

The interpretation of the phrase “relates to” instructs us on

how to interpret the phrase “with respect to,” as both phrases

are similar in scope and meaning. The Supreme Court has

stated that “the term ‘relate to’ cannot be taken ‘to extend to

the furthest stretch of its indeterminancy,’ or else ‘for all practical purposes pre-emption would never run its course.’ ”

Egelhoff v. Egelhoff, 532 U.S. 141, 146 (2001) (quoting Travelers, 514 U.S. at 655). The Court has also “cautioned against

an ‘uncritical literalism’ that would make pre-emption turn on

‘infinite connections.’ ” Id. at 147 (quoting Travelers, 514

U.S. at 656). As Justice Scalia observed, “[e]verything is

related to everything else.” Cal. Div. of Labor Standards

Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316,

335 (1997) (Scalia, J., concurring). The issue is whether the

relation is “indirect, remote, and tenuous” or not. Californians

For Safe & Competitive Dump Truck Transp. v. Mendoca,

152 F.3d 1184, 1189 (9th Cir. 1998). The relation between

placing a manufacturer’s name, the model name, and the date

of manufacture on an appliance and measures of energy consumption, as defined in EPCA, is indirect, remote, and tenuous. 

[5] Therefore, we conclude that the marking requirements

contained in sections 1607(b) and (c) of Title 20 of the California Code of Regulations are not preempted by EPCA. 

AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION 1487
[6] We also hold that section 1607(d)(1)9

 of the California

regulations is not preempted by EPCA, as the section only

requires compliance with federal marking requirements and,

therefore, does not require the disclosure of information that

is “other than information required” under federal law. 42

U.S.C. § 6297(a)(1). As the Fourth Circuit has stated, “if state

law adopts or imposes a labeling requirement that is the same

as the federal standard, even if the state law provides compensation or other remedies for a violation, so long as Congress

chooses not to explicitly preempt the consistent law, it will

not be said to be in conflict with federal law.” Worm v. American Cyanamid Co., 970 F.2d 1301, 1307 (4th Cir. 1992). This

reasoning is supported by Medtronic, in which the Supreme

Court stated that “[t]he presence of a [state] damages remedy

does not amount to the additional or different ‘requirement’

that is necessary under the [federal] statute; rather, it merely

provides another reason for manufacturers to comply with

identical existing ‘requirements’ under federal law.” 518 U.S.

at 495. Because Cal. Code Regs. tit. 20, § 1607(d)(1) merely

provides appliance manufacturers another reason to comply

with existing requirements under federal law, the California

regulation is not preempted. 

9Cal. Code Regs. tit. 20, § 1607(d)(1) provides: 

(d) Energy Performance Information. 

(1) Federally-Regulated Consumer Products. 

The marking required by 16 C.F.R. Part 305 (2001) shall be

displayed on all units of all federally-regulated consumer

products of the following classes: 

Refrigerators Refrigerator-freezers Freezers Central air conditioners Heat pumps Dishwashers Water heaters Room air

conditioners Warm air furnaces Pool heaters Clothes washers

Clothes dryers Fluorescent lamp ballasts Showerheads Faucets Water closets Urinals General service fluorescent lamps

Incandescent reflector lamps Direct heating equipment

Medium-base compact fluorescent lamps Cooking equipment (kitchen ranges and ovens). 

Cal. Code Regs. tit. 20, § 1607(d)(1). 

1488 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION
The final marking regulation Trade Associations argues is

preempted by federal law, Cal. Code Regs. tit. 20,

§ 1607(d)(2),10 also does not require the disclosure of information “other than information required” under federal law,

and is thus not preempted. Section 1607(d)(2) requires

federally-regulated commercial and industrial equipment to be

marked with information. The relevant preemption provision

is located at 42 U.S.C. § 6316(a)-(b), which was enacted as

part of EPAct. 

[7] California regulation section 1607(d)(2) is not preempted because there are no federal labeling rules for the

EPAct-covered equipment that are subject to California’s

marking requirements.11 Where EPAct authorizes the DOE to

take action that would preempt inconsistent state regulations,

the DOE’s inaction, without more, fails to preempts relevant

state regulations. 

Sections 6316(a) and (b) preempt “any State regulation

insofar as such State regulation provides at any time for the

disclosure of information with respect to any measure of

energy consumption or water use . . . if . . . such State regula10Cal. Code Regs. tit. 20, § 1607(d)(2) provides: 

(d) Energy Performance Information. 

(2) Federally-Regulated Commercial and Industrial Equipment: Each unit of an appliance listed in Table V that is

federally-regulated commercial and industrial equipment

shall be marked, permanently and legibly on an accessible

and conspicuous place on the unit, with the applicable

energy performance information shown in Table V, and such

information shall also be included on all printed material that

is displayed or distributed at the point of sale. 

Cal. Code Regs. tit. 20, § 1607(d)(2). 

11The DOE has adopted labeling rules for electric motors. 10 C.F.R.

§ 431.83. However, the California regulations on EPAct-covered equipment do not include electric motors; they cover only space heating, airconditioning, and water heating equipment. See Cal. Code Regs. tit. 20,

§ 1607(d)(2), Table V. 

AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION 1489
tion requires disclosure of information . . . of any covered

product other than information required” under federal law.

42 U.S.C. §§ 6297(a)(1) (emphasis added). Thus, state regulations are preempted at any time if they require the disclosure

of information other than what is required under federal law.

The DOE’s inaction alone cannot preempt state regulations.

See Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum

Corp., 485 U.S. 495, 503 (1988). “When a comprehensive

federal scheme intentionally leaves a portion of the regulated

field without controls, then the pre-emptive inference can be

drawn—not from federal inaction alone, but from inaction

joined with action.” Id. Under EPAct, the DOE must prescribe

labeling rules for classes of covered equipment for which the

DOE has exercised its discretion to prescribe test procedures.

42 U.S.C. § 6315(a). The DOE has not prescribed test procedures for most classes of covered equipment, and therefore

has not reached the decision of whether to prescribe labeling

rules. There is no indication that the DOE’s inaction was a

conscious and express decision under 42 U.S.C. § 6315(h)12 to

not promulgate labeling rules for EPAct-covered equipment.

“[I]t is essential that an agency declare, at a high degree of

specificity, its intention that its inaction preempt state law

before we may assume such a desire and give it legal effect.”

Baltimore & Ohio R.R. Co. v. Oberly, 837 F.2d 108, 115 (3d

Cir. 1988). As the DOE has not done so, we cannot hold that

12 42 U.S.C. § 6315 provides: 

The Secretary [of DOE] shall not promulgate labeling rules for

any class of industrial equipment unless he has determined that—

(1) labeling in accordance with this section is technologically

and economically feasible with respect to such class; 

(2) significant energy savings will likely result from such

labeling; and 

(3) labeling in accordance with this section is likely to assist

consumers in making purchasing decisions. 

42 U.S.C. § 6315(h). 

1490 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION
Cal. Code Regs. tit. 20, § 1607(d)(2) is preempted because it

requires something “other than” what federal law does.

C. Compliance and Enforcement Regulations

[8] Lastly, Trade Associations argue that California’s procedural regulations, found at Cal. Code Regs. tit. 20, § 1608,13

13Cal. Code Regs. tit. 20, § 1608, provides in relevant part: 

(a) General Requirements for the Sale or Installation of All

Appliances. Any unit of any appliance within the scope of Section 1601 may be sold or offered for sale in California only if: 

(1) the appliance appears in the most recent database established pursuant to Section 1606(c), unless the only reason for

the appliance’s absence from the database is its failure to

comply with an applicable standard in Section 1605.1 [the

applicable federal efficiency standard]; 

(2) the manufacturer has: 

(A) tested the appliance as required by Sections 1603 and

1604; 

(B) marked the unit as required by Section 1607; 

. . .

(b) Appliances Not in Database. 

If the Executive Director determines that an appliance that is

not in the database is being sold or offered for sale in California, he or she shall take appropriate legal action to restrain

and discourage such sale or offering, including, but not limited to testing units of the appliance at the manufacturer’s

cost and seeking appropriate judicial action. 

Cal. Code Regs. tit. 20, § 1608. 

Furthermore, section 1608(e)-(g) requires the Executive Director of the

Commission to periodically inspect appliances sold or offered for sale in

California to determine whether they conform with the relevant energy

efficiency and consumption standards. Cal. Code Regs. tit. 20,

§ 1608(e)(1). The Commission pays the costs of the initial testing. Cal.

Code Regs. tit. 20, § 1608(f). If a tested, federally-regulated appliance performs worse than what is required under the applicable federal standard,

the manufacturer must pay the cost for additional testing. Cal. Code Regs.

AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION 1491
that enforce the previously discussed substantive regulations

are preempted because they impermissibly enforce federal

requirements. If the Commission’s substantive regulations, as

we have found, are not preempted by federal law, then the

Commission’s relevant compliance and enforcement provisions are also not preempted. The power to regulate must

include the complementary power to enforce those regulations. California’s compliance and enforcement provisions are

not preempted by federal law.

IV

For these reasons, we agree with the Commission that the

relevant California regulations which require manufacturers to

submit data about their appliances, mark their appliances, and

be subjected to related compliance and enforcement rules are

not preempted by federal law. We therefore reverse the district court’s decision finding these regulations preempted,

vacate the injunction preventing the Commission from applying these regulations, and remand for further proceedings consistent with this opinion. 

REVERSED, VACATED, AND REMANDED

NOONAN, Circuit Judge, dissenting: 

The statutes at issue, inferentially the result of negotiation

and compromise, deliberately spell out what is preempted by

tit. 20, §§ 1608(e)(2), (g), (f). The Executive Director informs the appropriate federal agency if the appliance’s performance either is at variance

with the results the manufacturer reported to the applicable federal agency

or is not in compliance with the federal standard. Cal. Code Regs. tit. 20,

§ 1608(g). A federally-regulated appliance will be removed from the

Commission’s database due to its failure to comply with the applicable

federal standard. Cal. Code Regs. tit. 20, §§ 1605(a)(1), 1608(c)(4),

(d)(2)(B), (e)(2)(C). 

1492 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION
federal law. State regulations preempted are those that require

“disclosure of information with respect to the energy use,

energy efficiency or water use . . . other than the information

required under section 6294 of this title.” 42 U.S.C.

§ 62979(a)(1)(B). Where federal regulations do not require

disclosure of such information to the federal government, a

state is expressly prohibited from requiring such disclosure to

consumers or to a state authority. 

The majority opinion holds that the prohibition applies only

to disclosure to consumers. The holding is a radical reduction

of the key statutory term. “Disclosure,” Webster’s Third New

International Dictionary (3d ed. 1993) informs us, is “the act

or an instance of opening up to view, knowledge or comprehension.” Disclosure to a state agency is as much an opening

up to view of the data as disclosure to consumers would be.

Congress has chosen a broad term to prevent the imposition

by a state of the burden of disclosure. Just as the meaning of

“disclose” is “to expose to view” or “to make known,” so the

substantive noun referencing such an act is so extensive that

it encompasses every compulsory revelation of the relevant

information. Palpably the statute is meant to preempt the state

from entering the federal domain. 

I do not ask for “a broad reading” of “disclosure,” but for

an exact reading of a broad term. Obviously where the information is going to consumers as required by 42 U.S.C.

§ 6294, the meaning of disclosure is narrowed by the audience referenced. But narrowing in such a context does not

limit the generality of the statutory term when no special context restricts it. That Congress did not use the term “disclosure” when describing reports to DOE does not have bearing

on Congress’s intent when it found a single compendious way

to say that manufacturers need not inform either the government or consumers. 

Impatience with the restraints imposed by the precise preemptive words of the statute is also manifest when the majorAIR CONDITIONING v. ENERGY RESOURCES CONSERVATION 1493
ity deals with the phrase “other than” as the phrase refers to

regulations other than federal regulations. 42 U.S.C.

§ 6316(a), (a)(4). Where there are no federal regulations on

the subject because the DOE has not promulgated any regulations, then any state regulations are “other than” those federally required. The court indulges idiosyncratic imagination in

supposing that there must be federal regulations in existence

for “other than” to apply. Au contraire, if nothing exists, any

state regulations are other than what exists as federal regulation. The fundamental tenet of express preemption is that

Congress may preclude state involvement, even where it

chooses not to regulate. Through its misreading of “other

than” the court has imposed a heightened burden on the manufacturers to show implied preemption, despite Congress’

express statement of preemption. 

I would affirm the judgment of the district court. 

1494 AIR CONDITIONING v. ENERGY RESOURCES CONSERVATION