Edwards-Jones, Brenda

From : Jonathan Blees [Jblees@energy.state.ca.us]

Sent: Tuesday, October 09, 2007 1:45 PM

To: Edwards-Jones, Brenda

Cc: Chester Hong

Subject: Brief & Excerpts in CEC v. DOE, 9th Circuit No. 07-71576

Attachments: FINAL - 09-24-07.pdf

FINAL -

)9-24-07. pdf (3 MB)

Hi Brenda,

Here is the Brief. By copy of this message I am asking my secretary, Chester Hong, to

send an electronic copy of the Excerpts of Record to you. (Chester, if it's not already

in one piece, the easiest way might be to go back to the DOE website, download the

individual items, and integrate all of them into one document.)

Jonathan Blees

1

 EE-RM-PET-100 COMMENT 97
STATES COURT OF APPEALS CIRCUIT

GY CG

V.

SSION, Petitioner

UNITED STATES OF ENERGY, et al., Respondents

APPEAL OF AD STRATIVE ACTION

PETITIONERT OPENING BRIEF

William M. Chamberlain, Chief Counsel

Jonathan ]glees, Assistant Chief Counsel

William Staack, Senior Staff Counsel

Dennis L. Beck, Jr., Senior Staff Counsel

Attorneys for Petitioner

CALIFORNIA ENERGY COMMISSION

1516 Ninth Street, Mail Station 14

Sacramento, California 95814-5512

(916) 654-3953 Fax (916) 654-3843

Jbim0energy.state.ca.us
Edwards-Jones, Brenda

From : Jonathan Blees [Jblees@energy.state.ca.us]

Sent: Tuesday, October 09, 2007 1:45 PM

To: Edwards-Jones, Brenda

Cc: Chester Hong

Subject: Brief & Excerpts in CEC v. DOE, 9th Circuit No. 07-71576

Attachments: FINAL - 09-24-07.pdf

FINAL -

39-24-07 . pdf (3 MB)

Hi Brenda,

Here is the Brief. By copy of this message I am asking my secretary, Chester Hong, to

send an electronic copy of the Excerpts of Record to you. (Chester, if it's not already

in one piece, the easiest way might be to go back. to the DOE website, download the

individual items, and integrate all of them into one document.)

Jonathan Blees

1

 EE-RM-PET-100 COMMENT 97
TABLE OF CONTENTS

INTRODUCTION ....................................................................................................

JURISDICTIONAL STATEMENT .......................................................................... 6

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW,

WHERE IN THE RECORD BELOW THE ISSUES WERE RAISED,

AND THE STANDARD OF REVIEW ................................................................. 8

STATEMENT OF THE CASE .............................................................................13

STATEMENT OF FACTS ...................................................................................... 14

SUMMARY OF THE ARGUMENT ...................................................................... 15

ARGUMENT ......................................................................................................... 18

1. DOE's Denial of a Rule Granting a Preemption Waiver for California's

Clothes Washer Standards Should Be Overturned, Because It Is Arbitrary,

Capricious, and Not in Accordance with the Law . ..................................... 18

A. DOE Committed Legal Error in Determining That California Did Not

Demonstrate That the Standards Are Needed to Meet Unusual and

Compelling Interests .......................................................................... 18

1. DOE's Determination That California Did Not Explain the

Assumptions Supporting Its Analysis Is False and Is

Contradicted by the Record ..................................................... 20

2. DOE's Determination That California Did Not Analyze

Product- and State-Specific Alternatives Is False and Is

Contradicted by the Record ..................................................... 22

B. DOE Committed Legal Error In Determining That Opponents of a

Waiver Rule Demonstrated That One of the Standards Is Likely to

Result in the Unavailability of Top-Loading Clothes Washers, and in

Relying on That Determination To Deny a Waiver Rule for All of the

Standards . .......................................................................................... 26

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1. DOE Erred by Relying Solely upon the Current Unavailability

of Certain Top-Loaders to Support Its Determination That

Those Products Would Not Be Available Three Years in the

Future ............................ ........................................................... 27

2. DOE Erred in Determining That a Factor Relevant to Only One

of the California Standards Justified DOE's Denial of a

Preemption Waiver for All Four Standards ............................. 28

C. DOE Erred in Concluding That the "Three-Year Requirement"

Prevents the Agency from Granting a Waiver To Take Effect

Three Years in the Future ........................................................ 32

D. DOE Erred in Stating That If a Rule Waiving Preemption Is

Prescribed, Then DOE Conducts Another Rulemaking to Determine

If Preemption Should Be Waived ...................................................... 35

II. The Matter Should Be Remanded to DOE with Instructions to Prescribe a

Rule Granting a Waiver, Because the Record Has Been Fully Developed, the

Conclusions That Follow from It Are Clear, and Further Administrative

Proceedings Would Serve No Useful Purpose . .......................................... 38

A. The Record Clearly Shows That the California Standards Are

"Needed" to Meet the State's "Unusual and Compelling Interests." 39

1. California's Interests are "Unusual and Compelling ." ............ 39

2. The Standards are "Needed" to Meet California's Interests. .. 45

B. DOE's Determination That No Party Below Showed, by a

Preponderance of the Evidence, That The California Standards Will

Significantly Burden the Clothes Washer Industry on a National

Basis, Is Unchallenged in this Court (and Is Clearly Supported by the

Record) and Therefore Must Stand on Remand ................................ 49

C. The Record Clearly Shows That the California Standards Are Not

Likely To Result in the Unavailability of any Clothes Washer

Characteristic, Feature, or Other Attribute ........................................ 49

CONCLUSION ....................................................................................................... 52

I;

 EE-RM-PET-100 COMMENT 97
CERTIFICATE OF COMPLIANCE PURSUANT TO CIRCUIT RULE 32-1

STATEMENT OF RELATED CASES

ADDENDUM:

5 U.S.C. § 553

5 U.S.C. § 706

42 U.S.C. § 6295(g)

42 U.S.C. § 6297(c)-(d)

42 U.S.C. § 6306

10 C.F.R. § 430.23(j) & App. Jl

10 C.F.R. § 430.32(g)

10 C.F.R. § 430.42(1)

10 C.F.R. § 430.48

Cal. Pub. Res. Code § 25008

Cal. Pub. Res. Code § 25402(c), (e)

Cal. Code Regs. tit. 20, § 1602(p)

Cal. Code Regs. tit. 20, § 1603(a)

Cal. Code Regs. tit. 20, § 1604(p)

Cal. Code Regs. tit. 20, § 1605(b)

Cal. Code Regs. tit. 20, § 1605.2(p)(l)

Cal. Code Regs. tit. 20, § 1605.3(p)(1)

Cal. Assemb. Bill 1561 (Stats. 2001, ch. 421)

H.R. Rep. No. 100-11 (1987)

X11

 EE-RM-PET-100 COMMENT 97
TABLE OF AUTHORITIES

FEDERAL CASES

American Tobacco Co. v. Patterson

456 U.S. 63 (1982) ..................................................................................................23

Anaheim Mem'l Hosp. v. Shalala

130 F.3d 845 (9th Cir. 1997) ...................................................................................12

Citizen's to Preserve Overton Park, Inc. V. Volpe

401 U.S. 402 (1971) ................................................................................................ 28

Envtl. Def. Ctr. v. EPA

344 F.3d 832 (9th Cir. 2003) ............................................................................ passim

Florida Power & Light Co. v. Lorion

470 U.S. 729 (1985) ................................................................................................ 38

Gallarde v. I.N.S.

486 F.3d 1136 (9th Cir. 2007) ...........................................................................46, 46,47

Natural Resources Defense Council v. U.S. EPA

859 F.2d 156 (D.C. Cir. 1988) ................................................................................ 30

People of the State of California v. FCC

39 F.3d 919 (9th Cir. 1994) ..................................................................................... 21

Sierra Club v. EPA

346 F.3d 955 (9th Cir. 2003) ....................................................................... 38, 39, 49

United States v. Nixon

418 U.S. 683 (1974) ................................................................................................ 21

FEDERAL STATUTES AND LEGISLATIVE HISTORY

5 U.S.C. § 553 .................................................................................................. 36, 37

5 U.S.C. § 706 ..................................................................................................13, 13,20

5 U.S.C. § 706(2)(A) ...........................................................................12,32,33,36

5 U.S.C. § 706(2)(E) ............................................................................................... 13

42 U.S.C. § 6291-6309 .............................................................................................. 1

42 U.S.C. § 6293 .....................................................................................................14

42 U.S.C. § 6294 ................................................................................................. 4,14

42 U.S.C. § 6295 ..................................................................................................... 14

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 EE-RM-PET-100 COMMENT 97
42 U.S.C. § 6295(g) ................................................................................................... 6

42 U.S.C. § 6297(b)-(c) ............................................................................................. 7

42 U.S.C. § 6297(b)-(d) ...........................................................................................14

42 U.S.C. § 6297(c)-(d) ....................................................................................... 5, 14

42 U.S.C. § 6297(d) .......................................................................................... passim

42 U.S.C. § 6297(d)(1) .............................................................................................. 7

42 U.S.C. § 6297(d)(1), (3)-(5) ......................................................................... 11, 18

42 U.S.C. § 6297(d)(1)(B) ....................................................................... 8, 26, 46, 47

42 U.S.C. § 6297(d)(1)(B)-(C) ..........................................................................15, 15,19

42 U.S.C. § 6297(d)(1)(C)(i)-(ii) .............................................................................. 9

42 U.S.C. § 6297(d)(1)(C)(ii) ........................................................................... passim

42 U.S.C. § 6297(d)(2), (5) ..................................................................................... 34

42 U.S.C. § 6297(d)(4) .................................................................................... passim

42 U.S.C. § 6297(d)(5) ............................................................................................ 34

42 U.S.C. § 6297(d)(5)(A) ............................................................................... passim

42 U.S.C. § 6306(a)(1) ....................................................................................passim

42 U.S.C. § 6306(b)(1) ..........................................................................................7,7,8

42 U.S.C. § 6306(b)(2) ........................................................................................... 12

Energy Policy and Conservation Act of 1975

Pub. L. 94-163, 89 Stat. 926 .......................................................................... 1

National Appliance Energy Conservation Act of 1987

Pub. L. 100-12, 101 Stat. 103 ......................................................................... 1

H.R. Rep. No. 100-11, 100th Cong., 1s` Sess. (1987) ...............................1, 6, 24, 47

S.R. Rep. No. 100-6, 100th Cong., 1S` Sess. (1987) ................................................... 1

CALIFORNIA STATUTES AND LEGISLATIVE HISTORY

Public Resources Code:

Section 25008 ............................................................................................ 3,42

Section 25402(c) ........................................................................................... 14

Section 25402(e)(1) ...................................................................................4,4,15

California Assembly Bill 1561 (Kelley)

Ch. 421, Stats. 2002, § 1(b) ...................................................................... 4, 15

FEDERAL REGULATIONS

10 C.F.R. § 430.230) and Appendix Jl ....................................................................4

10 C.F.R. § 430.32(g) ..........................................................................................7,7,14

 EE-RM-PET-100 COMMENT 97
10 C.F.R. § 430.42(fl(1) .......................................................................................... 21

10 C.F.R. § 430.48(c) ............................................................................................... 7

10 C.F.R. § 430.48(d) ................................................................................................ 7

FEDERAL REGISTER

66 Fed. Reg. 3314 ........................................................ ........................................ 6, 14

66 Fed. Reg. 3319 ................................................................................................ 6, 14

71 Fed. Reg. 6022, 6023 .......................................................................................... 13

71 Fed. Reg. 6022-6024 ......................................................................................... 37

71 Fed. Reg. 6023 ........................ ............................................................................ 22

71 Fed. Reg. 6025 .................................................................................................... 35

71 Fed. Reg. 35419, 35420 . ..................................................................................... 35

71 Fed. Reg. 35420 ............................................................................ .................. 36

71 Fed. Reg. 78157 . ............................................................................................. 7, 13

71 Fed. Reg. 78160.... ..........................................................................17,21,32, 34

71 Fed. Reg. 78162 .................................................................................................. 45

71 Fed. Reg. 78162-78164 ................................................................................ 16,6,19

71 Fed. Reg. 78163 ................................................................................ 20, 22, 23, 25

71 Fed. Reg. 78163 -78164 ................ ...................................................................... 39

71 Fed. Reg. 78164 ......................................................................................16, 23, 26

71 Fed. Reg. 78164-78166 ...................................................................................... 49

71 Fed. Reg. 78167 .......................................................................................... passim

71 Fed. Reg. 78168 .................................................................................................. 27

CALIFORNIA STATE REGULATIONS

Title 5, § 553 ...................................................................................................... 36, 37

Title 20, § 1602(p) .................................................................................................... 4

Title 20, § 1603 .......................................................................................................... 4

Title 20, § 1604(p) .................................................................................................... 4

Title 20, § 1605(b) ................................................................................................... 33

Title 20, § 1605.2 - 1605.3 ..................................................................................... 33

Title 20, § 1605.2 ..................................................................................................... 33

Title 20, § 1605.2(p)(1) ................................................................................... passim

Title 20, § 1605.3(p)(1) ...........................................................................................14

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INTRODUCTION

[Federal appliance law] is ... designed to ensure that States are able

to respond with their own appliance regulations to substantial and

unusual . . . problems, such as high . . . prices . . . or adverse

environmental or health and safety conditions that can be alleviated by

... conservation in appliances. Congress anticipates that States that

have such . . . problems, and that have met the burden of proof set

forth in [the statute], will be granted waivers [from preemption].

H.R. Rep. No. 100-11, at 24 (1987).'

There is a water crisis in California. The State's need for water grows

inexorably, as her population will likely increase by nearly 50 percent in the next

three decades. Cal. Energy Comm'n, Pet. to Exempt from Preemption Cal.'s

Water Efficiency Standards for Residential Clothes Washers (Sept. 2005)

("California Petition" or "Cal. Pet.") 1, Petitioner's Excerpts of Record ("Pet'r's

Excerpts") 0062.2 At the same time, current water supplies are decreasing: every

' House of Representatives Report No. 100-11 discusses H.R. 87 of 1987. The

corresponding Senate Report, S. Rep. No. 100-6 (1987), as reprinted in 1987

U.S.C.C.A.N. 52, discusses S. 83 of 1987. The two bills were almost identical; S.

83 was enacted as the National Appliance Energy Conservation Act, Pub. L. 100-

12, 101 Stat. 103 (1987) ("NAECA"), codified at 42 U.S.C. §§ 6291-6309.

NAECA amended the Energy Policy and Conservation Act, Pub. Law No. 94-163,

89 Stat. 926 (1975), to update a program of federal efficiency standards,

preemption of state standards (and waivers therefrom), and other matters. 42

U.S.C. § 6297(d), the statutory provision at issue here, has remained essentially

unchanged since 1987. The House Report is included in the Addendum to this

Brief.

2 Citations to documents in DOE's Record include the page numbers where the

document is found in Petitioner's Excerpts of Record.

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major water supply source for the state -- from the Klamath and Trinity Rivers in

the north, to the Sacramento-San Joaquin Rivers and Delta in the Central Valley, to

the Mono Lake and Owens River system in the Eastern Sierra, to the Colorado

River, with its five-year record-breaking drought, in the South - is overappropriated. Id., Pet'r's Excerpts 0062. And the state's groundwater basins are

severely overdrafted. Id., Pet'r's Excerpts 0062. To make matters worse, most of

the State's population lives long distances from the major water supplies, which

results in costs for water pumping and treatment that are double the rest of the

country's. Id., Pet'r's Excerpts 0062. Moreover, California's water supplies face

increased environmental obstacles. For example, the recent federal court order

limiting the movement of water from northern California to southern California, in

order to protect the endangered Delta smelt, will further limit available supplies.

See Tr. of Hr'g re Interim Remedies Ruling at 16-24, Natural Res. Def. Council v.

Kempthorne, No. 05-CV-1207-OWW (E.D. Cal. Aug. 31, 2007), available at

http://calwater.ca.gov/content/Documents/20070831_NRDC_Ruling_FINAL.pdf;

Smelt Ruling May Cut Into Water Supply, L.A. Times, Aug. 31, 2007, available at

www.latimes.comlnews/local/la-me-delta1 sep01,1,255393,full.story? [-]

ctrack=1&cset=true. In addition, overuse of coastal aquifers has led to intrusion of

salt water into those groundwater supplies, and irrigation pumping has caused

increased salinity in inland underground sources. Cal. Pet. 12, Pet'r's Excerpts

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 EE-RM-PET-100 COMMENT 97
0073. And the looming specter of a hotter climate suggests that the Sierra Nevada

will store increasingly less water in its winter snowpack than the State has

historically enjoyed. Id. 12-13, Pet'r's Excerpts 0073-0074.

Unfortunately, California has no new major conventional supplies on the

horizon: all of the potential new water-storage sites that are part of the California

Water Plan are relatively small projects. Cal. Pet. 12, Pet'r's Excerpts 0073. As a

result, water efficiency, recycling, and desalination hold the key to alleviating the

State's water crisis. But recycling and desalination are expensive and energyintensive, so water use efficiency is clearly the best option, both economically and

environmentally. Id., Pet'r's Excerpts 0073. Recognizing this fact, the California

Legislature emphatically stated that "[i]t is ... the policy of the state and the intent

of the Legislature to promote all feasible means of ... water conservation ...."

Cal. Pub. Res. Code § 25008 (emphasis added). Thus for decades state and local

water agencies have actively pursued water efficiency for residential, commercial,

industrial, and agricultural customers. Cal. Pet. 1, Pet'r's Excerpts 0062. But

funds are limited, and most of the "low-hanging fruit" opportunities for savings

have been achieved. Id., Pet'r's Excerpts 0062.

As a key response to these difficulties, the California Legislature has

required the California Energy Commission ("CEC"), Petitioner here, to establish

water efficiency standards for residential clothes washers - an appliance that

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 EE-RM-PET-100 COMMENT 97
accounts for 22 percent of the water use in a typical household. Cal. Pet. 17,

Pet'r's Excerpts 0078. In so doing the Legislature declared that "a significant

portion of urban water demand in the state is for residential clothes washers" and

that "water conservation is a proven tool that will make the most effective use of

the state's limited water supply, and will conserve energy." Cal. Assemb. Bill 1561

(Kelley), Ch. 421, Stats. 2002, § 1(b) (enacting Cal. Pub. Res. Code §

25402(e)(1)). In turn, and with the overwhelming support of the hundreds of water

agencies throughout California, the CEC adopted the Standards that are at issue in

this case. Cal. Code Regs. tit. 20, § 1605.2(p)(1) ("California Standards"); see

comments collected at Pet'r's Excerpts 0219-0272, 0308-0316.

The California Standards establish a maximum amount of water that

residential clothes washers can use to wash and rinse a typical load, based on the

size of the machine. The Standards are expressed in terms of "water factor"

("WF"), which is the ratio of (i) the gallons of water used for a load to (ii) the

capacity, in cubic feet, of the washtub. Cal. Code Regs. tit. 20, §§ 1602(p),

1605.2(p)(1). Both elements are determined under strict testing conditions (which

are established by Respondent U.S. Department of Energy ("DOE") pursuant to 42

U.S.C. § 6294). See Cal. Code Regs. tit. 20, §§ 1602(p), 1603, 1604(p),

1605.2(p)(1); 10 C.F.R. § 430.23(j) & App. J1. Thus a clothes washer that has 5

cubic feet of capacity and that uses 50 gallons of water per load would have a WF

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 EE-RM-PET-100 COMMENT 97
of 50 + 5 = 10, while a machine of the same 5-cubic-foot capacity that uses only 25

gallons per load would have a WF of 5.0.

The California Standards apply to both top-loading and front-loading clothes

washers, and they establish two different tiers, or standards levels, to take effect on

different dates. Tier 1, nominally scheduled by California law to take effect on

January 1, 2007, has 8.5 WF standards for top-loaders and front-loaders. Cal.

Code Regs. tit. 20, § 1605.2(p)(1). Tier 2, nominally scheduled by California law

to take effect on January 1, 2010, has 6.0 WF standards for top-loaders and frontloaders. Id.

If the federal government allows the Standards to be implemented - for they

are preempted absent a waiver from DOE, 42 U.S.C. § 6297(c), (d) - then every

year they will save almost as much water as is used annually in the City of San

Diego, the second largest city in California and the seventh largest city in the

country. Cal. Pet. 2, Pet'r's Excerpts 0063. In addition, the Standards will save

money for consumers and will, help protect California's environment. Id. 1, 5, 19,

25-26, Pet'r's Excerpts 0062, 0066, 0080, 0086-0087.

However, the federal government has not allowed the Standards to take

effect. Instead, DOE has, in reliance on misinterpretations of the law and

misunderstandings of its own record, decided that California has not shown that the

Standards are appropriate to the meet the State's needs, and as a result the agency

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 EE-RM-PET-100 COMMENT 97
has denied the State's request for a waiver from preemption. DOE also decided,

several years ago, that it did not have the authority to adopt national water

efficiency standards for residential clothes washers. 66 Fed. Reg. 3314, 3319 (Jan.

12, 2001). Therefore, unless this Court reverses DOE's denial of the waiver,

California will be condemned to watch inefficient clothes washers waste large

amounts of water for years to come. It is irrelevant whether DOE's failure to adopt

national standards is right for areas of the nation with plenty of rainfall; for

California and the other dry Western states it is a serious blow, particularly if

DOE's current modus operandi continues, making it virtually impossible for any

state to obtain a waiver from federal preemption. Congress "anticipate[d] that

States" with "substantial and unusual ... problems," such as those in California,

"will be granted waivers... ." H.R. Rep. No. 100-11, at 24 (1987). This Court

should step in, correct DOE's mistakes, and let Congress's intent come to fruition.

JURISDICTIONAL STATEMENT

Statutory Basis of Subject-Matter Jurisdiction of the Agency. Respondents

(the United States Department of Energy and the Department's Secretary, Samuel

W. Bodman, referred to collectively as "DOE") have subject-matter jurisdiction

over California's request for a preemption waiver. DOE has adopted federal

energy efficiency standards for residential clothes washers, 42 U.S.C. § 6295(g);

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 EE-RM-PET-100 COMMENT 97
10 C.F.R. § 430.32(g), but under federal law the states are preempted from

implementing their own energy or water efficiency standards for that appliance

(except in circumstances not present here). 42 U.S.C. § 6297(b)-(c). However, a

state may petition DOE for rule that waives preemption; DOE grants or denies

such petitions based on criteria established by Congress. Id. § 6297(d).

Finality of the Agency Order. DOE denied California's waiver petition on

December 28, 2006. 71 Fed. Reg. 78157 (Dec. 28, 2006). On Januaxy 29, 2007,

the CEC requested reconsideration, which 10 C.F.R. section 430.48(d) states is

required to exhaust administrative remedies. Cal. Energy Comm'n, California's

Req. for Recons. (Jan. 29, 2007) ("Cal. Recons. Req."), Pet'r's Excerpts 0001-

0031. DOE failed to take action on that request within 30 days and reconsideration

was therefore denied by operation of law on February 28, 2007. 10 C.F.R. §

430.48(c); Pet'r's Excerpts 0304 ("Recons. Denial E-Mail").

Statutory Basis of Jurisdiction of This Court. Petitioner CEC seeks relief

from denial of a rule by DOE. See 42 U.S.C. § 6297(d)(1). 42 U.S.C. §,

6306(b)(1) places judicial review of DOE rulemaking in the courts of appeals;

venue lies in the circuit in which the party adversely affected resides or has his

principal place of business. Id. § 6306(b)(1). The principal place of business of

the CEC is in Sacramento, California.

Timeliness: A petition for judicial review under 42 U.S.C. §

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 EE-RM-PET-100 COMMENT 97
6306(b)(1) must be filed within 60 days after the date on which final rulemaking

action was taken. California's Petition for a rule granting a waiver was deemed

finally denied, by operation of law, on February 28, 2007. Reconsideration Denial

E-Mail, Pet'r's Excerpts 0304. Petitioner CEC filed its Petition for Review with

this Court on April 23, 2007, 54 days after DOE's denial of a waiver became final.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW,

WHERE IN THE RECORD BELOW THE ISSUES WERE RAISED, AND

THE STANDARD OF REVIEW

The issues presented for review, and the location in the record below where

the issues were raised, are as follows. The standard of review for all issues is

discussed immediately following the listing of the issues.

1. Unusual and compelling interests. DOE must grant a waiver for a

state efficiency standard if (absent other considerations discussed below) it "finds

... that the State ... has established by a preponderance of the evidence that [the

state standard] is needed to meet unusual and compelling State or local energy or

water interests." 42 U.S.C. § 6297(d)(1)(B). Such interests are those that (i) "are

substantially different in nature or magnitude than those prevailing in the United

States generally" and (ii) "are such that the costs, benefits, burdens, and reliability

of ... savings resulting from the State [standard] make [it] preferable or necessary

when measured against the costs, benefits, burdens, and reliability of

8

 EE-RM-PET-100 COMMENT 97
alternative [s]." Id.. § 6297(d)(1)(C)(i)-(ii). DOE found that California 's interests

are "substantially different in magnitude " from those in the U.S. generally, but the

agency did not make the requisite findings on the other issues, "alternatives" and

"needed."

a. Alternatives.

(1) Issue. Did DOE commit legal error by determining that

California had not met its burden of showing that the Standards are preferable to

alternatives, on the sole grounds that (a) California did not adequately describe the

assumptions supporting its analysis of the cost-effectiveness of the Standards, and

(b) California did not compare the Standards to product-specific and state-specific

alternatives, where (i) there is no legal requirement that a state do either of these

things and (ii) the record shows that California did both?

(2) Where raised below. Cal. Recons. Req. 4, Pet'r's

Excerpts 0009.

b. Need.

(1) Issue. Did DOE commit legal error by not making a

finding on whether the California Standards are "needed" to meet state and local

interests, where the record convincingly shows that the Standards are "needed," as

Congress used that term?

(2) Where raised below. Cal. Recons. Req. 19, Pet'r's

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 EE-RM-PET-100 COMMENT 97
Excerpts 0024.

2. Availability of Consumer Attributes. DOE cannot prescribe a waiver

rule if the agency "finds ... that interested persons have established, by a

preponderance of the evidence, that the State regulation is likely to result in the

unavailability in the State of ... performance characteristics (including reliability),

features, sizes, capacities, and volumes that are substantially the same as those

generally available in the State at the time of [DOE's] finding, except that the

failure of some classes (or types) to meet this criterion shall not affect [DOE's]

determination of whether to [grant a waiver] for other classes (or types)." 42

U.S.C. § 6297(d)(4).

a. Availability of top-loaders.

(1) Issue. Did DOE commit legal error by determining that

opponents met their burden of proof on this issue, on the sole ground that the

unavailability of top-loading washers with a WF under 6.3 in 2006 means that

there will be no top-loaders that can meet a WF of 6.0 in 2010?

(2) Where raised below. Cal. Recons. Req. 14, Pet'r's

Excerpts 0019.

b. Refusal to approve waiver for other classes.

(1) Issue. Did DOE commit legal error by refusing to grant a

waiver for the 8.5 WF Standards, or the 6.0 WF Standard for front-loaders, even

10

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though its determination of unavailability related only to top-loaders below 6.3

WF?

(2) Where raised below. Cal. Recons. Req. 13, Pet'r's

Excerpts 0018.

3. The Three-Year Requirement. There is, in general , a three-year delay

between the date of DOE's publication of a rule granting of a waiver, and the date

on which a state standard takes effect under the rule. 42 U.S.C. § 6297(d)(5)(A).

a. Issue. Did DOE commit legal error by determining that the

three-year requirement prevented the agency from granting a waiver, in 2006, for

the 8.5 WF standards, which under state law were nominally scheduled to take

effect in 2007?

b. Where raised below. Cal. Recons. Req. 3, Pet'r's Excerpts

0008.

4. Further Rulemaking. Section 6297(d) provides that when a state

submits a waiver petition , DOE is to conduct a rulemaking proceeding and either

(1) deny the petition, if the agency finds that the applicable statutory criteria are

not met, or (2) "prescribe" a rule granting the waiver, if the agency finds that the

criteria are met. 42 U.S.C. § 6297(d)(1), (3)-(5).

a. Issue. Did DOE commit legal error by stating that if it finds

that the applicable statutory criteria are met, it would not prescribe a rule granting a

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waiver, but instead would begin a new rulemaking?

0026.

b. Where raised below. Cal. Recons. Req. 21, Pet'r's Excerpts

The Standard of Review. 42 U.S.C. § 6306(b)(2) provides that judicial

review of DOE rulemakings is "in accordance with chapter 7 of Title 5," which is

the judicial review chapter of the Administrative Procedure Act ("APA"). Under

the APA, the reviewing court "shall ... compel agency action unlawfully withheld

[and] hold unlawful and set aside agency action, findings, and conclusions found to

be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law ...." 5 U.S.C. § 706(2)(A); see Envtl. Def. Ctr. v. EPA, 344 F.3d 832,

858 n.36 (9th Cir. 2003 ), cert. denied, 541 U.S. 1085 (2004) ("Envtl. Def. Ctr.").

Under this standard , generally referred to as the "arbitrary and capricious

standard," an agency decision can be upheld only on the basis of the reasoning

articulated in the decision . Anaheim Mem 'l Hosp. v. Shalala, 130 F.3d 845, 849

(9th Cir. 1997). Moreover, the court will overturn the decision if the agency:

(1) relied on a factor that Congress did not intend it to consider;

(2) failed to consider an important factor or aspect of the problem;

(3) failed to articulate a rational connection between the facts found and

the conclusions made;

(4) supported the decision with a rationale that runs counter to the

evidence or that is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise; or

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(5) made a clear error of judgment.

E.g., Envtl. Def. Ctr., 344 F.3d at 858 n.36. In addition, under the APA an

agency's factual findings are reviewed under the "substantial evidence" test. 5

U.S.C. § 706(2)(E). However, in the instant case DOE made no factual findings.

Finally, the reviewing court is to "decide all relevant questions of law '[and]

interpret ... statutory provisions ...." Id. § 706.

STATEMENT OF THE CASE

Nature of the Case. This is a case of first impression. Petitioner California

Energy Commission seeks a judgment overturning Respondent U.S. Department of

Energy's denial of California's request for rule granting a waiver of federal

preemption for the State's water efficiency standards for residential clothes

washers.

The Course of the Proceedings Below. California filed its Petition for a

waiver rule with DOE on September 16, 2005, and the petition was accepted as

complete on December 23, 2005. See 71 Fed. Reg. 6022, 6023 (Feb. 6, 2006),

Pet'r's Excerpts 0155. DOE denied the Petition on December 28, 2006. 71 Fed.

Reg. 78157 (Dec. 8, 2006), Pet'r's Excerpts 0139. On January 29, 2007,

California requested reconsideration. Cal. Recons. Req., Pet'r's Excerpts 0001-

0031. Following DOE's inaction for 30 days, the Request was denied by operation

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of law on February 28, 2007. Reconsideration Denial E-Mail, Pet'r's Excerpts

0304. Petitioner CEC filed its Petition for Review with this Court on April 23,

2007.

STATEMENT OF FACTS

The CEC has been adopting and implementing statewide efficiency

standards for appliances since 1976. See Cal. Pub. Res. Code § 25402(c). DOE

has been doing so on a national level since 1987, under NAECA and subsequent

legislation. See 42 U.S.C. § 6295; id., Historical and Statutory Notes. In general,

DOE's efficiency standards preempt state efficiency standards, but DOE may

prescribe rules granting waivers from preemption. 42 U.S.C. § 6297(b)-(d). DOE

also establishes procedures for the testing of appliances, id. § 6293, and the Federal

Trade Commission establishes regulations on appliance labeling, id. § 6294.

In 2001, DOE adopted federal energy efficiency standards for residential

clothes washers, pursuant to § 6295. 66 Fed. Reg. at 3314, codified at 10 C.F.R. §

430.32(g). However, DOE also decided that it does not have the authority to

prescribe water efficiency standards for that appliance. 66 Fed. Reg. at 3319. In

2002, the CEC adopted energy and water efficiency standards for commercial

clothes washers. See Cal. Code Regs. tit. 20, § 1605.3(p)(1). (Because

commercial clothes washers were not at that time covered by federal law, those

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California standards were not preempted then.)

Later in 2002, the California Legislature enacted a statute that required the

CEC to adopt water efficiency standards for residential clothes washers . 2002 Cal.

Stat., ch. 421 (enacting Cal. Pub. Res. Code § 25402(e)(1)). Recognizing that the

water standards would be preempted by federal law, the Legislature also required

the CEC to petition DOE for a rule waiving preemption . Id. The CEC responded

by adopting the Standards , Cal. Code Regs. tit. 20 , § 1605 .2(p)(1), and by

submitting the petition for a waiver rule , that are at issue here. DOE denied the

rule requested in the waiver petition.

For a discussion of the potential effects of the Standards on California's

water needs, see pp . 1-4 supra.

SUMMARY OF THE ARGUMENT

State Interests. DOE must prescribe a rule waiving preemption if the agency

finds that the state has shown that its standard is "needed" to meet "unusual and

compelling" interests - i.e., interests that are, among other things, such that the

standard is preferable to alternatives in meeting the interests . 42 U.S.C. §

6297(d)(1)(B)-(C). DOE said that California failed to show that its Standards are

preferable to alternatives because, the agency contended , California did not

identify or explain the assumptions underlying its analysis , and California did not

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examine alternatives that were specific to clothes washers or to the State. 71 Fed.

Reg. at 78162-64. In fact, the record is clear that California did both things.

Because DOE determined that California had not shown that the clothes

washer Standards are preferable to alternatives (and thereby determined that

California does not have "unusual and compelling" interests), the agency made no

determination on whether the standards are "needed" to meet the State's interests.

71 Fed. Reg. at 78164. Had DOE correctly determined that California does have

"unusual and compelling" interests, the agency could and should have found that

California showed that the Standards are "needed" to meet those interests.

Product Attributes. DOE cannot prescribe a waiver rule if the agency

determines that opponents of a state standard have shown that the standard is likely

to result in the unavailability of product attributes, such as size or features, that

were available at the time DOE rules on the waiver. 42 U.S.C. § 6297(d)(4). DOE

stated that "[t]he lowest WF of a top-loading washer currently [December 2006]

on the market is approximately 6.3. .... [T]herefore the [2010] California [6.0]

standard would result in the unavailability of top-loading residential clothes

washers ...... 71 Fed. Reg. at 78167 (emphasis added). DOE's non sequitur was

error. That the market in 2006 had no better top-loader than a 6.3 WF model gives

no support to DOE's determination that the market is unlikely to have no 6.0 toploaders in 2010, when the California 6.0 WF standard for top-loaders is scheduled

16

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to take effect. Therefore, DOE should have determined that opponents had not

shown that the 6.0 WF Standard is likely to result in the unavailability of any

product attribute. Moreover, even if DOE's determination were correct, it would

be irrelevant to the three other California standards: the 6.0 WF Standard for frontloading machines (many of which already meet the Standard), and the 8.5 WF

Standards for top- and front-loaders. Nor would the determination prevent DOE

from allowing California to enforce a 6.3 WF requirement for top-loaders.

The Three-Year Requirement. The federal statute establishes, in general, a

three-year delay between the date when prescribes a waiver rule and the date on

which a state standard takes effect pursuant to the waiver. 42 U.S.C. §

6297(d)(5)(A). DOE determined that this provision prevented granting of the

waiver, on the ground that the prescription of a waiver rule would have been in

2006, and one section of California's appliance regulations indicates that the 8.5

WF Standards were nominally scheduled to take effect on January 1, 2007 (less

than three years later). See 71 Fed. Reg. at 78160. This was error. The California

regulations expressly recognize that a standard needing a waiver goes into effect

only upon the effective date of a waiver, and the three-year provision in federal law

trumps any nominal effective date in a state law.

Further Rulemaking. The waiver statute provides that when a state submits

a waiver petition, DOE is to conduct a rulemaking proceeding and either (1) deny

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the petition, if the agency finds that the applicable statutory criteria are not met, or

(2) "prescribe" a rule granting the waiver, if the agency finds that the criteria are

met. 42 U.S.C. § 6297(d)(l), (3)-(5). DOE, however, stated that if the agency had

found that the applicable statutory criteria had been met by California's Standards,

it would not grant a waiver but instead would begin a new rulemaking. This was

directly contradictory to the statute and was therefore error.

Remand with Instructions. All of DOE's errors were legal errors: none

involved factual findings by the agency. The record necessary to make the factual

findings required by statute is fully developed and the conclusions that must be

drawn from the record are clear. Therefore, further administrative proceedings

would serve no purpose, and this Court should remand to DOE with instructions to

prescribe a rule that grants a preemption waiver for the California Standards.

ARGUMENT

I. DOE's Denial of a Rule Granting a Preemption Waiver for California's

Clothes Washer Standards Should Be Overturned, Because It Is

Arbitrary, Capricious, and Not in Accordance with the Law.

A. DOE Committed Legal Error in Determining That California Did

Not Demonstrate That the Standards Are Needed to Meet

Unusual and Compelling Interests.

DOE must prescribe a rule granting a waiver if the agency:

finds ... that the State ... has established by a preponderance of the

evidence that [the] State regulation is needed to meet unusual and

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compelling State or local energy or water interests. [_J] "[U]nusual

and compelling State or local energy or water interests" means

interests which . . . (i) are substantially different in nature or

magnitude than those prevailing in the United States generally; and

(ii) are such that the costs, benefits, burdens, and reliability of energy

or water savings resulting from the State regulation make such

regulation preferable or necessary when measured against the costs,

benefits, burdens, and reliability of alternative approaches to energy

or water savings or production, including reliance on reasonably

predictable market-induced improvements in efficiency of all products

subject to the State regulation.

42 U.S.C. § 6297(d)(1)(B)-(C). DOE determined that California showed that its

water interests are "substantially different in ... magnitude than those prevailing in

the United States generally," but the agency claimed that California failed to show

that its Standards are "preferable or necessary" compared to alternatives. 71 Fed.

Reg. at 78162-64, Pet'r's Excerpts 0144-0146. DOE gave only two reasons for its

determination on the alternatives analysis: according to DOE, California's Petition

(1) did not provide adequate support for its assessment of the cost-effectiveness of

the standards, and (2) did not analyze alternatives that were specific to California

and to residential clothes washers. Id. at 78162-64, Pet'r's Excerpts 0144-0146.

These were not factual findings, such as a finding that alternatives are preferable to

the California Standards. Rather, they were essentially legal determinations that

the California evidence was somehow inadequate per se. In any event, the

determinations are "not in accordance with law," were "clear error[s] of

judgment," and "run[] counter to the evidence," and therefore they should be

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overturned. See 5 U.S.C. § 706; Envtl. Def. Ctr., 344 F.3d at 858 n.36.

1. DOE's Determination That California Did Not Explain

the Assumptions Supporting Its Analysis Is False and Is

Contradicted by the Record.

California's Petition for a waiver rule contains a detailed analysis showing

that the State's residential clothes washer Standards are highly cost-effective to

consumers, and it indicates that the underpinnings of the analysis were subjected to

rigorous analysis in the Energy Commission proceeding in which the Standards

were adopted. Cal. Pet. 19, 20-26, Pet'r's Excerpts 0080, 0081-0088. DOE claims

that California "did not provide a sufficient explanation of the analysis supporting

its estimates," because California "did not indicate where [the Energy

Commission's] rulemaking record could be located and where within the record

the relevant assumptions, data, and analysis could be located; nor did [California]

provide sufficient explanation of the underlying assumptions and data in its

petition." 71 Fed. Reg. at 78163, Pet'r's Excerpts 0145. Thus DOE did not

determine that California's evidence failed to preponderate over countervailing

evidence (DOE cites no such evidence), but instead DOE determined that

California's evidence was legally inadequate. This was error.

First, the determination was legally untimely. DOE's own regulations make

clear that DOE has only a limited time - before the agency accepts a waiver

petition for filing - to raise concerns about the adequacy of the evidence therein:

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Within fifteen ( 15) days of the receipt of a petition [for waiver],

[DOE] will either accept it for filing or reject it ... . Only such

petitions which conform to the requirements of [DOE's regulations]

and which contain sufficient information for the purposes of a

substantive decision will be acceptedfor filing.

10 C.F.R. § 430.42(f)(1) (emphasis added). Thus, when DOE accepted

California's Petition for filing, "as complete," 71 Fed. Reg. at 78160, Pet'r's

Excerpts 0142, under the express terms of 10 C.F.R. section 430.42(f)(1) DOE

had concluded that the Petition did "contain sufficient information for the

purposes of a substantive decision." Therefore, it was arbitrary and capricious for

DOE to have relied on the Petition's allegedly "[in] sufficient information for the

purposes of a substantive decision," see 10 C.F.R. § 430.42(f)(1), as a justification

for denying the Petition. See, e.g., United States v. Nixon, 418 U.S. 683, 694-96

(1974); People of the State of California v. FCC, 39 F.3d 919, 925 (9th. Cir.

1994), cert. denied, 514 U.S. 1050.

Second, a full explanation of all the Petition's assumptions, data, and

analyses - indeed, the entire California rulemaking record - was readily available

to the agency throughout the 15 months between the initial submittal of the

Petition and DOE's denial. As DOE itself noted when it announced the filing of

the Petition, California's rulemaking "[m]aterial related to this State regulation is

available at the following URL address under Docket 03-AAER-l (RCW):

http://www.energy.ca.gov/appliances/2003rulemaking/clothes-washers/index. htm

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U' 71 Fed Reg. at 6023, Pet'r's Excerpts 0155. DOE's later complaint that

California did not provide its rulemaking record or citations thereto is

inexplicable.

The only specific assumption or data that DOE found inadequate was the

Energy Commission's estimate of the increased first cost of washing machines that

would result from the California Standards. 71 Fed. Reg. at 78163, Pet'r's

Excerpts 0145. Had DOE looked at or inquired about the California rulemaking

record that was available at the website that DOE itself cited, it would have found,

in the very first document listed, the study by California's Pacific Gas & Electric

Company that provided much of the analysis used in the CEC rulemaking. That

study provides all the explanation of California's incremental cost assumptions that

DOE apparently believes is missing. See PG&E, "Title 20 Standards Development

Analysis of Standards Options For Residential Clothes Washers" at 4 (2003),

available at

http://www.energy .ca.gov/appliances/2003rulemaking/clothes_washers/documents

/2005-09-05_CASE_STUDY_CLOTHES_WASHERS. PDF.

2. DOE's Determination That California Did Not Analyze

Product- and State-Specific Alternatives Is False and Is

Contradicted by the Record.

DOE asserted that California did not show that the California standards are

"preferable or necessary when measured against ... alternative [s]," 42 U.S.C. §

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6297(d)(1)(C)(ii). 71 Fed. Reg. at 78164, Pet'r's Excerpts 0146. This was not

because DOE found that the preponderance of the evidence showed that

alternatives are preferable. Rather, DOE once again determined that California's

showing was inadequate as a matter of law:

Comparison of the costs and benefits of the California

regulation to non-regulatory alternatives ... [1] requires estimates 'of

the costs and benefits of those alternatives as implemented by

California . . . [and] [2] must be in the context of the "products

subject to the State regulation." (42 U.S.C. 6297(d)(1)(C)(ii)) ... .

[T]he costs and benefits presented [by California] do not allow for a

comparison of the costs and benefits of alternatives ....

Id. at 78164, Pet'r's Excerpts 0145 (emphasis added). DOE was doubly wrong:

nothing in the law requires that the alternatives considered by a state must be

product- or state-specific, and even if there were such a requirement, California

fully complied with it.

First, the law does not require that any alternatives discussed in a state

waiver petition be product- or state-specific (except for the do-nothing alternative

of reliance solely on the market, which must be product-specific). What the law

does require is simply that a petition discuss "alternative approaches to energy or

water savings or production." 42 U.S.C. § 6297(d)(1)(C)(ii). Indeed, DOE's gloss

on the statute would lead to absurd results (and is therefore improper, American

Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982)). The statute requires a

comparison to "alternative approaches to ... water savings or production ...." 42

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U.S.C. § 6297(d)(1)(C)(ii) (emphasis added). Water "production" cannot possibly

be product-specific, for utilities do not develop one water supply for clothes

washers, another for showers, and so on. For those states served by any water

source that passes through more than one state (such as those states bordering or

containing the Colorado, the Columbia, the Mississippi, the Missouri, or the Ohio

Rivers, a state-specific analysis of "production" alternatives from those sources

would also be impossible. This is perhaps why Congress stated:

[42 U.S.C. § 6297(d)(1)(C)(ii)] does not require the State to use any

specific methodology. It does require the State to show that it has

engaged in a rational planning process in which the State has

reviewed the cost-effectiveness of various alternatives to State

appliance standards.

H.R. Rep. No. 100-11, at 25 (1987) (emphasis added).

Second, the record actually does contain an ample discussion of both

product-specific and state-specific alternatives to the California RCW Standards.

(As we demonstrate at pp. 41-44 infra, the record shows convincingly that the

Standards are "preferable or necessary" when compared to those and other

alternatives.) The Petition's discussion of water production alternatives - the State

Water Project; groundwater; new storage; and the major in-state rivers (Trinity,

Sacramento, San Joaquin, and Owens) - is California-specific. See Cal. Pet. i i12, Pet'r's Excerpts 0072-0073. (The Petition also discusses the Colorado and

Klamath Rivers, which are multi-state. See id., Pet'r's Excerpts 0072-0073.) Just

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so, the Petition's discussion of the most prevalent and successful water savings

alternatives, which are rebates and education, is both clothes washer- and

California-specific, as is the discussion of the "rely on the market" alternative. See

id. 27-32, 34-36, Pet'r's Excerpts 0088-0093, 0095-0097.

It is true that the Petition's discussion of some savings alternatives - early

replacement of inefficient washing machines, mass government purchases, low

income and senior subsidies, consumer tax credits, and manufacturer tax credits -

relies on an analysis of savings from nationwide programs (that are specific to

residential clothes washers). DOE concluded that it was "inappropriate" for

California to rely on this analysis - which was prepared by DOE itself in a

previous rulemaking proceeding - when the State determined that the Standards

are "preferable or necessary" compared to the alternatives discussed in the

analysis. 71 Fed. Reg. at 78163, Pet'r's Excerpts 0145. DOE's analysis showed

that all of those alternatives combined would result in a nationwide savings of less

than ten percent of the water and energy that nationwide clothes washer efficiency

standards would achieve. See Cal. Pet. 33, Pet'r's Excerpts 0094. It was

reasonable for California to conclude from this that the results in the nation's

largest state would be similar, and therefore to conclude that the Standards are

"preferable," or needed in addition, to such alternatives, without wasting further

time and resources to analyze the alternatives in greater detail. DOE cites no

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evidence to the contrary.

DOE's erroneous determinations on California's alternatives analysis led the

agency to conclude that California did not show that the State has "unique and

compelling" water interests, 42 U.S.C. § 6297 (d)(1)(B). 78 Fed. Reg. at 78164,

Pet'r's Excerpts 0150 . As a result, the agency found it unnecessary to determine

whether the record shows that the Standards are "needed ," 42 U.S.C. §

6297(d)(1)(B), to meet such interests . 78 Fed. Reg. at 78164 , Pet'r 's Excerpts

0150. As we discuss at pp. 45-49 infra, the record is more than adequate to

address the issue , and the Court should direct DOE to find that the Standards are in

fact "needed."

B. DOE Committed Legal Error In Determining That Opponents of

a Waiver Rule Demonstrated That One of the Standards Is Likely

to Result in the Unavailability of Top-Loading Clothes Washers,

and in Relying on That Determination To Deny a Waiver for All

of the Standards.

DOE cannot prescribe a waiver rule if the agency:

finds ... that interested persons have established, by a preponderance

of the evidence, that the State regulation is likely to result in the

unavailability in the State of . . . performance characteristics

(including reliability), features, sizes, capacities, and volumes that are

substantially the same as those generally available in the State at the

time of [DOE's] finding, except that the failure of some classes (or

types) to meet this criterion shall not affect [DOE's] determination of

whether to prescribe a [waiver] rule for other classes (or types).

42 U.S.C. § 6297(d)(4). DOE concluded that opponents of the California

Standards made the requisite showing here, based on two determinations. First,

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DOE found that the California 6.0 WF Standard for top-loading washers "would

likely result in the unavailability of top-loading residential clothes washers in

California." 71 Fed. Reg. at 78168, Pet'r's Excerpts 0150. DOE then concluded

that "[t]herefore, DOE is prohibited from ... grant[ing] the California Petition."

Id. The Court should overturn these determinations: the first one "runs counter to

the evidence ," makes no "rational connection between the facts found and the

[determination]," and is "implausible ," while the second "relied on factors which

Congress has not intended it to consider" and constitutes "a clear error of

judgment." See Envtl. Def. Ctr. v. EPA, 344 F.3d at 858 n.36.

1° DOE Erred by Relying Solely upon the Current Unavailability

of Certain Top-Loaders to Support Its Determination That

Those Products Would Not Be Available Three Years in the

Future.

DOE stated its determination as follows:

[T]he lowest WF of a top-loading washer currently [December 2006]

on the market is approximately 6.3. DOE finds that ... there are no

top-loading residential clothes washer[s] in the current [December

2006] market that would comply with the 6.0 WF level ... and that

therefore the proposed [January 2010] California [6.0 WF] standard

would result in the unavailability of top-loading residential clothes

washers ....

71 Fed. Reg. at 78167, Pet'r's Excerpts 0149 (citations omitted). That the market

in 2006 has no better top-loader than a 6.3 WF model is, standing alone (which is

where DOE placed it), unsupportive of DOE's conclusion that the market is

unlikely to have no 6.0 WF top-loaders in 2010. Because there is no "rational

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connection between the facts found and the conclusions made," Envtl. Def. Ctr.,

344 F.3d at 858 n. 36., the conclusion is arbitrary and capricious . (At pp. 49-50

infra we discuss the evidence that shows that 6.0 WF top-loaders are in fact likely

to be available by 2010.)

2. DOE Erred in Determining That a Factor Relevant to Only

One of the California Standards Justified DOE's Denial of a

Preemption Waiver for All Four Standards.

DOE relied on its finding concerning top-loader availability to justify

denying the waiver in its entirety - that is, for all four of the California standards:

Maximum Water Factor

January 1, 2007 January 1, 2010

Front-Loading 8.5 6.0

Top-Loading 8.5 6.0

Cal. Code Regs. tit. 20, §1605.2(p)(1). But it is obvious that the "unavailability"

of a top-loading washer with a WF below 6.3 has no relevance to the three

standards italicized in the table above: the less-stringent 8.5 WF standards, and the

6.0 WF standard forfront-loading machines (of which there are many models

currently available with WFs well below 6.0). Therefore, DOE's reliance on its

"unavailability" finding to deny a waiver for those three standards was arbitrary

and capricious. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416

(1971) (court must determine whether decision was based on consideration of

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relevant factors); Envtl. Def. Ctr., 344 F.3d at 858 n.36 (agency reliance on a factor

Congress did not intend to be considered is arbitrary and capricious). Indeed, the

statute itself shows that DOE's all-or-nothing approach was inappropriate: "the

failure of some classes (or types) to meet [the unavailability] criterion shall not

affect [DOE's] determination of whether to prescribe a rule [i.e., grant a waiver]

for other classes (or types)." 42 U.S.C. § 6297(d)(4).

DOE apparently considered prescribing a waiver rule for the front-loader

Standards, but the agency decided not to do so for two reasons. First, DOE

claimed that the California Petition did not distinguish between top-loaders and

front-loaders "and therefore, the question of whether such levels would be

appropriate for individual classes of residential clothes washers is not at issue." 71

Fed. Reg. at 78167, Pet'r's Excerpts 0149. Not so. The statute gives DOE the

discretion to grant waivers for different classes or types regardless of what a state

petition might say or not say. 42 U.S.C. § 6297(d)(4). Otherwise, a state would

have to guess, in its petition, or perhaps even when adopting its standards, which

types or classes of an appliance DOE might want to consider individually. In any

event, the California Petition made clear that there are four separate standards.

Cal. Pet. 4, Pet'r's Excerpts 0065.

Second, DOE stated:

Even if [the question of standards for different classes] were [at issue],

however, DOE would be concerned that differing maximum WF

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levels established for specific classes . . . could have negative

consequences for water savings in California . Regulating ... frontloading ... washers to a 6.0 WF, while allowing a significantly less

stringent WF level for top-loader washers, would likely further

increase the existing price differential between top - and front-loading

washing machines..... The result of this change in price difference

could well increase purchases of less water efficient residential

clothes washers, and potentially offset the intended benefit from

setting a water efficiency standard for certain but not all classes of

residential clothes washers.

71 Fed. Reg. at 78167, Pet'r's Excerpts 0149 (emphasis added) (citations omitted).

DOE's "concern" that something "could" happen that "could" result in

"potentially" reduced (by how much?) savings from the Standards as a whole is not

a valid evidentiary basis for a finding. Natural. Res. Def. Council v. U.S. Envtl.

Prot. Agency, 859 F.2d 156, 210 (D.C. Cir. 1988) ("mere speculation [is not]

adequate grounds upon which to sustain an agency's action"). Moreover, DOE's

solicitous concern is irrelevant. DOE is supposed to examine whether a state

standard would result in the unavailability of consumer-useful attributes. 42

U.S.C. § 6297(d)(4). If DOE determines that the preponderance of the evidence

shows that a standard would result in the unavailability of a type of attribute listed

in the statute, then it must deny a waiver for those classes or types of the appliance

in which the attribute would be unavailable. Id. Because DOE's (unsupported)

finding of unavailability relates only to the 6.0 WF Standard for top-loaders, the

agency cannot rely on that finding as a reason to reject the 6.0 Standard for frontloaders or the 8.5 Standards for both types.

30

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Finally, DOE's "concern" is merely an artifact of the agency's own making.

DOE's decisionmaking trail appears thus:

(1) if front-loaders have a 6.0 WF standard and top-loaders have no standard

or a significantly less stringent standard, the price differential between the

more-efficient front-loaders and the less-efficient top-loaders could increase;

(2) the increased price differential could cause consumers to buy fewer

water-saving front-loaders;

(3) DOE cannot grant a waiver for the California 6.0 WF top-loader

Standard to take effect in 2010, because the best top-loader WF available

today is 6.3;

(4) because (as determined in (3)) DOE cannot give California a waiver for

the 6.0 top-loader WF Standard, if DOE grants a waiver for the 6.0 frontloader WF Standard, then a larger price differential between top-loaders and

front-loaders (as described in (1)) is in fact likely;

and, therefore,

(5) California cannot have standards for either top-loaders or front-loaders!

This carries out neither the letter nor the spirit of 42 U.S.C. § 6297(d). And, as

California discussed at length in its Request for Reconsideration to DOE, the

solution to the Gordian problem into which DOE has knotted itself is easy: simply

grant a waiver for a 6.3 WF standard for top-loaders. Cal. Recons. Req. 14-16,

Pet'r's Excerpts 0019-0021. DOE might have believed that it could not prescribe a

waiver rule for a standard not expressly set forth in a waiver petition. But, as we

also pointed out in our reconsideration request, DOE could accomplish the same

practical result by granting a waiver for the 6.0 WF top-loader Standard, subject to

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the condition that California could enforce the Standard only as to those toploading machines - i.e., those "classes" or "types" of top-loaders, see 42 U.S.C. §

6297(d)(4)) - with a WF above 6.3. Cal. Recons. Req. 14-16, Pet'r's Excerpts

0019-0021.

C. DOE Erred in Concluding That the "Three-Year Requirement"

Prevents the Agency from Granting a Waiver To Take Effect

Three Years in the Future.

42 U.S.C. § 6297(d)(5)(A) establishes a three-year delay between the date

of DOE's prescription of a waiver rule, and the date on which a state standard

takes effect pursuant to the waiver. (The delay is five years if DOE makes certain

findings, which were not made here.) 42 U.S.C. § 6297(d)(5)(A). DOE stated that

this provision prevents granting of waiver , at least for the 8 .5 WF Standards, on the

ground that DOE's grant of a waiver, had it occurred, would have been in 2006,

and one section of California's appliance regulations indicates that under

California law the 8.5 WF Standards were nominally designated as taking effect on

January 1, 2007 , less than three years later. See 71 Fed. Reg. at 78160, Pet'r's

Excerpts 0142. (Obviously, DOE's concern , expressed in late 2006, was at that

time irrelevant to the 6.0 WF Standards, which under California law are nominally

scheduled to take effect on January 1, 2010.) DOE mis-read the law in reaching

this conclusion , and therefore the conclusion is "a clear error in judgment ," Envtl.

Def. Ctr. v. EPA, 344 F.3d at 858 n.36, that is "not in accordance with law," 5

32

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U.S.C. § 706(2)(A).

Each California appliance efficiency standard, such as the State's clothes

washer Standards, is set forth with a nominal effective date. See Cal. Code Regs.

tit. 20, §§ 1605.2 - 1605.3. That is necessary in order to put all stakeholders on

notice as to when enforcement is scheduled to begin under state law. But

California also recognizes that under federal law certain standards require waivers

from federal preemption before they can be enforced by the State. Therefore,

California's appliance regulations expressly provide that such standards take effect

only upon the effective date of a DOE waiver, or on the date when statutory

preemption is repealed, if that were to occur. Id. § 1605(b); see also id. § 1605.2

& 1605.2(p)(1). Thus even though the 8.5 WF standards are labeled with a

nominal effective date of 2007, their real effective date under both state and federal

law is the effective date of a federal waiver - that is, three (or five) years after the

prescription of a rule granting the waiver. Here, that would have meant that had

DOE granted, rather than denied, a waiver on December 28, 2006, the California

"2007" 8.5 WF Standards would have taken effect three years later, on December

28, 2009. DOE's determination that it could not grant a waiver for the "2007" 8.5

WF Standards is, therefore, "not in accordance with" either state or federal law,

and therefore must be set aside. See 5 U.S.C. § 706(2)(A).

DOE's interpretation is also erroneous because it would put the states in the

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impossible situation of having to guess precisely when DOE is likely to grant a

waiver (which determines the real effective date), when adopting a standard and

assigning a nominal "effective date. The states' task would be made even more

daunting because the federal statute provides several dates when a waiver can take

effect: the normal three years, five years if DOE finds that such a period is

necessary for manufacturers to overcome significant compliance burdens, or the

statutorily-prescribed effective date of the first amendment to a federal standard

(but, complicating matters even further, this last constraint does not apply if DOE

finds that the state has an "emergency condition"). See 42 U.S.C. § 6297(d)(5).

Congress intended to save energy, not to require a state to be prescient about when

DOE will act, the nature of that action, and whether an intervening federal standard

will further complicate the "effective date" nominally assigned by the state.

For the same reasons, equally misplaced is DOE's concern about the

timeliness of the analyses in state petitions. See 71 Fed. Reg. at 78160, Pet'r's

Excerpts 0142. To the extent DOE is suggesting that if a state mis-guesses when

DOE will allow a state standard to take effect, so that the state's analyses might be

based on a slightly different implementation schedule than will actually occur,

DOE is erroneously assuming that the state's burden is to predict costs and benefits

at a precise date in the future rather than just providing, by a preponderance of the

evidence, an analysis that is reasonable. See 42 U.S.C. § 6297(d)(2), (5).

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D. DOE Erred in Stating That If a Rule Waiving Preemption Is

Prescribed, Then DOE Conducts Another Rulemaking to

Determine If Preemption Should Be Waived.

When DOE published California's Petition and announced the rulemaking

proceeding below, the agency indicated that it would follow the procedures

established by Congress:

After the period for written comments, the Department will consider

the information and views submitted, and make a decision on whether

to prescribe a waiver from Federal preemption for California with

regard to water use standards for residential clothes washers.

71 Fed. Reg. at 6025, Pet'r's Excerpts 0157 (emphasis added). Yet four months

later (when DOE extended the deadline for its decision), the agency indicated that

it would take a much different approach:

[S]hould the Department decide to grant a petition, section

[6306(a)(1)] requires that DOE afford interested persons the

opportunity to present written and oral data , views, and arguments

with respect to any proposed rules prescribed under section [6297].

(42 U.S.C. 6306(a)(1)) . . . . [91] In this notice, the Department

extends the period for evaluation of the California Petition to

December 23, 2006 .... At such point, the Department will either

provide notice of a proposed rule on which it will seek written and

oral comment, or [deny] the California Petition.

71 Fed. Reg. 35419, 35420 (June 20, 2006), Pet'r's Excerpts 0152. Thus DOE

now seems to believe that if it denies a waiver petition , then the matter is closed,

but if it grants a waiver petition , then everyone begins anew and discusses the same

issues all over again in another rulemaking proceeding . If that is indeed DOE's

belief, it is "a clear error in judgment," Envtl. Def. Ctr. v. EPA, 344 F.3d at 858

35

 EE-RM-PET-100 COMMENT 97
n.36, that is "not in accordance with law," 5 U.S.C. § 706(2)(A).

The many provisions on state waivers in 42 U.S.C. § 6297(d) make clear

that when DOE grants a waiver petition , the agency is then and there prescribing a

final rule - not proposing a final rule, or prescribing a proposed rule - that grants a

waiver with a specific effective date:

Any State ... may file a petition with [DOE] requesting a rule that

[its] State regulation become effective .... [91] . . . DOE shall, within

the [six-month or one-year] period described in paragraph (2) and

after consideration of the petition and the comments of interested

persons, prescribe such rule if the Secretary finds .... [91] .... [DOE]

shall ... deny such petition or prescribe the requested rule .... [9J]

[DOE] may not prescribe a rule under this subsection if [DOE] finds

[significant industry burdens].... [91] [DOE] may not prescribe a

rule under this subsection if [DOE] finds [unavailability of consumer

attributes] .... [9[] No final rule prescribed by [DOE] under this

subsection may . . . [9[] permit any State regulation to become

effective with respect to any covered product manufactured within

three years after such rule is published in the Federal Register or

within five years if the Secretary finds that such additional time is

necessary .... [91] . . . a State is issued a rule under paragraph (1)

with respect to a covered product ....

42 U.S.C. § 6297(d) (emphasis added).

DOE cites another provision of EPCA, 42 U.S.C. § 6306(a)(1), in the

apparent belief that the latter section requires DOE to begin anew with another

proceeding if the agency grants a waiver. 71 Fed. Reg. at 35420, Pet'r's Excerpts

0152. DOE is wrong. That provision simply states:

(a) Procedure for prescription of rules

(1) In addition to the requirements of section 553 of Title 5, rules

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 EE-RM-PET-100 COMMENT 97
prescribed under section 6293, 6294, 6295, 6297, or 6298 . . . shall

afford interested persons an opportunity to present written and oral

data, views, and arguments with respect to any proposed rule.

42 U.S.C. § 6306 (a)(1). In its proceeding on the California Petition, DOE

"afford.[ed] interested persons an opportunity" to present their views, and the

"addition[al] requirements" of "section 553 of Title 5," which is in the federal

Administrative Procedure Act, add little to section 6306(a)(1)'s "[p]rocedure." In

relevant part, section 553 states:

General notice of proposed rule making shall be published in the

Federal Register .... The notice shall include-

(1) a statement of the time, place, and nature of public rule making

proceedings;

(2) reference to the legal authority under which the rule is proposed;

and

(3) either the terms or substance of the proposed rule or a description

of the subjects and issues involved. ... .

After notice required by this section, the agency shall give interested

persons an opportunity to participate in the rule making through

submission of written data, views, or arguments with or without

opportunity for oral presentation. After consideration of the relevant

matter presented, the agency shall incorporate in the rules adopted a

concise general statement of their basis and purpose.

5 U.S.C. § 553. DOE also complied with these requirements. See 71 Fed. Reg. at

6022-24, Pet'r's Excerpts 0154-0156. As a result, in the proceeding below DOE

has met (and in any future waiver proceeding the agency will undoubtedly meet)

all of the statutorily-prescribed procedural "requirements [for] rules prescribed

37

 EE-RM-PET-100 COMMENT 97
under section ...6295 [and] 6297," 42 U.S.C. § 6306( a)(1). Therefore , when DOE

grants a state waiver petition, it must, and thereby does, simultaneously give final

approval to a rule waiving preemption and specifying an effective date for the state

standards, without the need for any further administrative proceedings.

II. The Matter Should Be Remanded to DOE with Instructions to Prescribe

a Rule Granting a Waiver, Because the Record Has Been Fully

Developed, the Conclusions That Must Follow from It Are Clear, and

Further Administrative Proceedings Would Serve No Useful Purpose.

This Court has explained the two basic options available to the judiciary

when overturning agency action:

Although the normal course of action when the record fails to

support an agency's decision "is to remand to the agency for

additional investigation or explanation," Florida Power & Light Co. v.

Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985),

both Supreme Court and Ninth Circuit precedent acknowledge the

propriety of remanding with instructions in exceptional cases. See,

e.g., id. ("except in rare circumstances") ... see also Sierra Club v.

EPA, 311 F.3d 853 (7th Cir. 2002) (remanding with instructions

where the EPA had exceeded its statutory authority by [taking action

based] on statutorily-unenumerated grounds).

Sierra Club v. EPA, 346 F.3d 955, 963 (9th Cir. 2003). We respectfully suggest

that the "rare circumstances" here make this one of the "exceptional cases" where a

remand with instructions - to grant California a waiver - is appropriate. None of

DOE's rationales for rejecting the waiver involves a factual finding by the agency

on any of the applicable statutory criteria. Rather, as we will now show, for each

38

 EE-RM-PET-100 COMMENT 97
of the statutory criteria that DOE applies to waiver petitions, "the record ... has

been fully developed, and the conclusions that must follow from it are clear";

therefore, "further administrative proceedings would [not] serve a useful purpose

...." See id.

A. The Record Clearly Shows That the California Standards Are

"Needed" to Meet the State's "Unusual and Compelling"

Interests.

1. California's Interests are "Unusual and Compelling."

DOE gave only two reasons for not finding that California has "unusual and

compelling ... interests," both of them related to the State's comparison of the

Standards to alternatives: California's alleged failures to justify the assumptions

supporting the State's cost-effectiveness analysis of the Standards, and to analyze

product- and state-specific alternatives. See pp. 19-26 supra. A remand for further

consideration on either issue would serve no purpose, because the record shows

that the Standards are cost-effective and that they are preferable to alternatives.

Analytic Assumptions. The only analytic assumptions with which DOE

specifically found fault were California's estimates of the increased cost of

washing machines that would result from the Standards. 71 Fed. Reg. at 78163-64,

Pet'r's Excerpts '0146-0147. (DOE had no complaint about California's estimates

of the savings in water and energy bills that the Standards would produce, savings

that are almost two times as large as the increased costs for washing machines. See

39

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Cal. Pet. 19-26, Pet'r's Excerpts 0080-0087.) In reality, the record shows that the

Petition's first-cost estimates (increases of 130.18 resulting from the 6.0 WF

Standards, and $66.44 from the 8.5 WF Standards, Cal. Pet. 20-21, 23, Pet'r's

Excerpts 0081-0082, 0084) are entirely reasonable. For example, California's

rebuttal comments noted that "Sears' `Washer and Dryer Guide' [states] ... that

the higher first cost of front-load washers `can be recouped in about 8 to 10 years .

...Rebuttal Comments of the Cal. Energy Comm'n 2 & n.6 (May 15, 2006)

("Cal. Rebuttal"), Pet'r's Excerpts 0034.3 This is sufficiently consistent with

California's payback estimate - about six years for the more stringent 6.0 WF

Standards - to provide strong support for California's conclusion that the

Standards are cost-effective. (If the actual time for consumers to recoup the

increased cost of a washing machine, through their water and energy bill savings,

was at Sears' upper limit of 10 years, then the Standards would still be costeffective, as the life of a typical clothes washer is 14 years. See Cal. Pet. 21,

Pet'r's Excerpts 0082.) Similarly, California's first cost estimates are consistent

3 Our Rebuttal Comments cited the URL for the Sears Guide as it appeared at that

time. Cal. Rebuttal 2 & n.6, Pet'r's Excerpts 0034 (citing

"www.sears.com/sr/j avasr/dpp.do?vertical=Buying%20Guides&cat=-

Laundry&B V_UseB VCookie=Yes&splash=true&nstate=http://www.live.bguides.-

webcollage.net/_wc/laundry_2.htm1---G!079078702827 ! XRHzY AguDp 1 SwH5C---- @http://guides.sears.com/server/sears/bguides-laundry-showcase#TopLoad%20vs.%20Front-Load (last visited May 9, 2006)"). We understand that

shortly after we filed the Rebuttal Comments, the website material was changed.

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with the estimates from Intervenor Association of Home Appliance Manufacturers

("AHAM") of the financial impacts of the standards on the clothes washer

industry. As California pointed out to DOE, AHAM's estimate of an increased

cost to manufacturers of approximately $20 per unit would likely result in an

increased cost to consumers well within the range of the California estimates, even

after markups are taken into account. Cal. Rebuttal 9, Pet'r's Excerpts 004-1.

(California also showed that other AHAM estimates, less consistent with

California's, were based on a failure to take account of federal energy standards for

clothes washers. Cal. Recons. Req. 8, Pet'r's Excerpts 0013.)

In sum, California's estimates of the costs resulting from the 8.5 WF and 6.0

WF Standards are entirely reasonable. No reliable evidence in the record indicates

that those estimates are incorrect. Therefore, not only was DOE wrong in

asserting that California failed to justify or support its analyses, but DOE also

overlooked the evidence in the record that supports the only part of the analyses

about which DOE indicated any concern.

Comparison to Alternatives. The evidence strongly shows that the Standards

are "preferable," 42 U.S.C. § 6297(d)(1)(C)(ii), to alternatives. The most effective

non-standards programs for increasing clothes washer efficiency are rebates and

education. Cal. Pet. 27, Pet'r's Excerpts 0088. Indeed, those were the alternatives

that AHAM proposed. AHAM, Resp. to [the California Petition] 15, Pet'r's

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 EE-RM-PET-100 COMMENT 97
Excerpts 0180. The record shows that although those programs are important, and

are actively being carried out in California, they are inferior to the Standards, for

they cannot achieve anywhere near the same level of savings and are substantially

more expensive. Cal. Pet. 27-28, 31, Pet'r's Excerpts 0088-0089, 0092.

Not only are the Standards "preferable" in comparison to alternatives, they

are also "necessary," the second option provided by Congress in 42 U.S.C. §

6297(d)(1)(C)(ii). California is already implementing rebate, education, tax credit,

and other programs to encourage clothes washer efficiency, as well as all feasible

supply options - yet still more is necessary. The Standards that DOE would

prevent the State from implementing are an integral part of California's efforts to

provide its citizens, its economy, and its environment with adequate water, as

California's Legislature, California's statewide water supply agency, and hundreds

of local water districts in California have recognized:

It is . . . the policy of the state and the intent of the Legislature to

promote all feasible means of energy and water conservation ....

Cal. Pub. Res. Code § 25008 (emphasis added).

By wringing every bit of utility from every drop of water,

Californians can stretch water supplies and help ensure continued

economic, social, and environmental health.

Cal. Dep't of Water Res., 2005 California Water Plan, vol. 1, ch. 1, p. 1-7

(emphasis added), quoted in Cal. Pet. 16, Pet'r's Excerpts 0077.

Improving the efficiency of clothes washers is only part of the overall

42

 EE-RM-PET-100 COMMENT 97
solution for reliable water supply, yet it is a vital part. Improving the

efficiency of clothes washers will not supplant other cost effective

water conservation efforts, such as rebate and voucher programs,

improved leak detection, increased public education programs, local

landscape and water use ordinances, water transfers, new local

storage reservoirs and groundwater conjunctive use projects,

increased reclamation of stormwater and treated wastewater, and salt

and brackish water desalination. It is clear that there is no one "silver

bullet" to secure California's water future, but ACWA [the

Association of California Water Agencies , representing the morethan-400 water agencies that deliver over 90 percent of California's

water] supports the efforts of its water agencies to implement those

that will make significant incremental contributions using water more

efficiently.

ACWA, Ltr. to Samuel W. Bodman 1 -2 (Apr. 4, 2006), Pet'r's Excerpts 0253-

0254 (emphasis added).

There are many alternative cost-effective methods to improve water

efficiency, and we are already implementing them. .... The District

evaluates water efficiency options and water supply options equally in

its planning process. We implement all of the most cost-effective

strategies available. Improving the efficiency of clothes washers does

not supplant other reasonable means available . . `... [9[]. Currently, the

only available action [on RCW] to agencies is to offer rebates or

vouchers to encourage the purchase of the high-efficiency washers;

this method has limited effect and is very costly, compared to

appliance standards. Ratepayers bear an undue burden because

washer efficiency standards cannot be adopted by the State.

Olivenhain Water Dist., Ltr. to Samuel Bodman 2-3 (undated), Pet'r's Excerpts

0228-0229 (emphasis added). (This comment from a California water district was

echoed by many others, e.g., City of Del Mar, City of Napa, City of Roseville, City

of Yreka, Crescenta Valley Water District, Cucamonga Water District, Foothill

Municipal Water District, Los Angeles Department of Water and Power, North

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 EE-RM-PET-100 COMMENT 97
Marin Water District, Santa Fe Irrigation District, Three Valleys Municipal Water

District, and West Basin Municipal Water District. See Pet'r's Excerpts 0232,

0247-0271, 0315-0318.)

Opponents suggested that the Standards are not "preferable or necessary"

when compared with alternatives, because other efficiency measures, or potential

supply sources such as desalination, might be capable of providing more water

than the California standards. See Pet'r's Excerpts 0175-0177, 0306-0307. This is

quite similar to the erroneous assertion discussed at pp. 45-46 infra: that a State's

standard is not needed unless it can, by itself, completely meet the State's interests.

0

If the existence of any alternative (no matter how costly or environmentally

damaging), can prevent DOE from granting a waiver, then there no petition can

ever be successful. Obviously, Congress did not intend such a result. Opponents

also failed to present any evidence that their suggested alternatives - tax credits,

water markets, and desalination - are in fact preferable to the California Standards,

for there were no estimates at all of the costs, or the savings potential, of such

programs. See, e.g., Pet'r's Excerpts 0175-0177. The California Petition,

however, demonstrates (1) that financial incentives such as tax credits are

expensive and cannot cover the entire market, (2) that water markets are difficult to

implement because water savings are not necessarily fungible across different

economic sectors or geographic areas, and (3) that desalination is expensive and

44

 EE-RM-PET-100 COMMENT 97
energy-intensive. Cal. Pet. 11-12, 27-34, Pet'r's Excerpts 0072-0073, 0088-0095;

see also Pet'r's Excerpts 0219-0220, 0312-0313. In any event, the essential point

here is that all reasonably-priced water supply sources, and efficiency measures,

must be pursued if California is to have any hope of meeting its water needs:

"Improving the efficiency of clothes washers is only part of the overall solution for

reliable water supply, yet it is a vital part." ACWA Letter 1-2, Pet'r's Excerpts

0253-0254; see also Pet'r's Excerpts 0219-0221.

DOE found that California met the first part of the two-part "unusual and

compelling interests" test: i.e., the agency found that the State's interests are

"different in nature or magnitude" from those in the U.S. generally. 71 Fed. Reg.

at 78162, Pet'r's Excerpts 0144. The discussion above shows that the record is

clear that California also meets the second part of the test: the Standards are

"preferable or necessary" in comparison to alternatives.

2. The Standards are "Needed" to Meet California 's Interests.

DOE made no finding here, but the evidence overwhelmingly demonstrates

that the Standards are needed to meet California's statewide and local interests.

The few opposing comments on this issue addressed not the facts of

California's water needs but rather a legal matter: the interpretation of the word

"needed." Opponents argued that a state's standard cannot be "needed" unless it is

capable, standing alone, of completely meeting the State's "unusual and

45

 EE-RM-PET-100 COMMENT 97
compelling ... interests," 42 U.S.C. § 6297(d)(1)(B); see Pet'r's Excerpts 0175-

0177, or, similarly, that the standard is the only way for the state to meet its

interests, see Pet'r's Excerpts 0306. The Court should reject these extreme

interpretations, which would make it impossible for any waiver petition ever to be

granted. No single efficiency measure (or, for most states, and certainly

California, no single supply source) is capable of meeting all of a State's needs,

and a state will always have some option besides a standard that could be

implemented, albeit at extreme cost or with great environmental damage. See

Gallarde v. I.N.S., 486 F.3d 1136, at 1143 (9th Cir. 2007) (improper to read statute

in a manner that creates an absurd result). Indeed, the more extreme a state's need

for saving water - e.g., the greater the environmental harm from over-use of water

supplies, or the more rapidly that water demand is growing - the less likely it is

that any single measure will be able to meet that need.

We respectfully suggest that "needed" in section 6297(d)(1)(B) is best

interpreted in light of the language in section 6297(d)(1)(C)(ii), which, as we have

seen, requires a state to demonstrate that its standard is "preferable or necessary"

(emphasis added) in comparison to alternatives. Gallarde v. I.N.S., 486 F.3d at

1143 (9th Cir. 2007) (statutory provision should be interpreted in context with

other provisions). Had Congress intended, in section 6297(d)(1)(B), to require a

state to demonstrate "need[]" by a showing that its regulation is the only way to

46

 EE-RM-PET-100 COMMENT 97
meet the state's interests (i.e., that there are no alternatives at all, no matter how

costly or otherwise undesirable, that might meet the state's interests), it would have

made no sense for Congress to have allowed the state to meet the alternatives test

with a showing that the regulations are merely "preferable." But that is precisely

what Congress did. Since one can always imagine some enormously costly and

impractical way to achieve a goal, an interpretation of "needed" that requires the

implementation of not only reasonable alternatives, but every conceivable

alternative, is plainly inconsistent with the statutory language Congress enacted

and with the legislative history in which Congress explained that it did not intend

for the states to face an impossible task. See H.R. Rep. No. 100-11, at 24 (1987);

Gallarde v. LN.S. 486 F.3d at 1143 (9th Cir. 2007) (avoid absurd results in

statutory interpretation). Rather, Congress apparently wants a state to show that a

standard is "needed" by demonstrating that it has a serious problem and that it

either has implemented the available alternatives or, after reasonable inquiry, has

found them to be inferior. See 42 U.S.C. § 6297(d)(1)(B), (d)(1)(C)(ii). California

has adhered to that sensible path.

In any event, no matter how many angels are "needed" to dance on the head

of a statutory pin, the record demonstrates that the California Standards are

"needed." In addition to the evidence showing that the Standards are "necessary"

in the context of alternatives, see pp. 42-43 supra, the record is replete with

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statements - from the people and institutions who are responsible for meeting

California's water needs - that the reasonable alternatives have already been

tapped, that there is still unmet demand, and that the Standards are therefore

"needed." For example, the California Municipal Utilities Association ("CMUA"),

which represents the vast majority of California's publicly-owned water utilities

(and energy utilities), stated that the Standards are "critical to the State's economy

and quality of life of populations that will make California their home for

generations to come." CMUA, Ltr. to Samuel W. Bodman (Mar. 28, 2006) 2,

Pet'r's Excerpts 0266. Representing investor-owned utilities, the California Water

Association ("CWA") stated that "[i]t is crucial that California carry out these ...

standards and responsibly reduce its dependence on overly tapped and energyintensive regional and imported water supplies." CWA, Ltr, to Samuel W.

Bodman (Apr. 7, 2006), Pet'r's Excerpts 0236. And Pacific Gas and Electric

Company ("PG&E"), the nation's largest combined electricity and natural gas

utility, urged DOE to recognize that "[a]ll cost-effective tools are desperately

needed to meet [California's] manifold water and energy challenges. ... .

Resources that are now being less efficiently spent on residential washer efficiency

programs (relative to the cost efficiency of the preempted California standards)

must be freed up to allow the State to develop new ... programs ...." PG&E,

"Comments prepared by PG&E ..." 3 (Apr. 6, 2006), Pet'r's Excerpts 0239; see

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also, e.g., comments from the California Urban Water Conservation Council, the

Alameda County Water District, and the City of Downey, Pet'r's Excerpts 0219-

0231.

There is no evidence in the record that counters these statements. As a

result, "the record ... has been fully developed, and the conclusions that must

follow from it are clear," so "further administrative proceedings would [not] serve

a useful purpose ...." See Sierra Club v. EPA, 346 F.3d at 963.

B. DOE's Determination That No Party Below Showed, by a

Preponderance of the Evidence, That The California Standards

Will Significantly Burden the Clothes Washer Industry on a

National Basis, Is Unchallenged in this Court (and Is Clearly

Supported by the Record) and Therefore Must Stand on Remand.

Unchallenged in this Court is DOE's finding that waiver opponents did not

show that the Standards would significantly burden the clothes washer industry on

a national basis. See 71 Fed. Reg. at 78164-66, Pet'r's Excerpts 0146-0148. There

is nothing to do on remand here.

C. The Record Clearly Shows That the California Standards Are Not

Likely To Result in the Unavailability of any Clothes Washer

Characteristic , Feature, or Other Attribute.

DOE found that the current unavailability of top-loading washers with WFs

under 6.3 makes it unlikely that top-loaders will be able to meet the 6.0 WF

Standard in 2010. We have demonstrated the error of this finding (and its

irrelevance to the 6.0 WF Standard for front-loaders and the 8.5 WF Standards for

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both top- and front-loaders.) See pp. 26-32 supra. In fact, the record demonstrates

that top-loaders are quite likely to achieve the small, approximately-five-percent

improvement from 6.3 WF to 6.0 WF by 2010. See Pet'r's Excerpts 0235 (Pac.

Gas & Elec. Co. stating to DOE that it is unlikely that there will be "any

limitations in features, sizes, capacities or volumes that would result even after

implementation of the 6.0 water factor standard"). Like the current 6.3 WF toploading model, a 6.0 WF model will probably use horizontal-axis technology,

which one U.S. manufacturer has been selling for years and which is a common

design overseas. Cal. Pet. 46, Pet'r's Excerpts 0107. Therefore, DOE should have

found, and the Court should direct it to find on remand, that "interested persons

have [not] established, by a preponderance of the evidence, that the [California

Standards are] likely to result in the unavailability ... in the State of any ...

[attribute] ...." See 42 U.S.C. § 6297(d)(4).

If, however, the Court believes that the record indicates that DOE should

examine whether a 6.0 WF standard, or only a 6.3 WF standard, for top-loaders is

justified, California believes that its citizens, economy, and environment would be

better served by moving forward immediately to establish a 6.3 WF standard,

rather than taking many additional months, or years, for further DOE proceedings

to consider whether the slight improvement to 6.0 WF is appropriate.

In sum, this Court can and should remand with instructions that DOE

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immediately publish in the Federal Register:

(1) a finding that California has established by a preponderance of the

evidence that the Standards are needed to meet unusual and

compelling State and local water interests;

(2) a re-statement of the agency's previous and unchallenged finding that

no interested person has established, by a preponderance of the

evidence, that the Standards will significantly burden manufacturing,

marketing, distribution, sale, or servicing of residential clothes

washers on a national basis;

(3) a finding that no interested person has established, by a preponderance

of the evidence, that the Standards (or, in the alternative, the 6.0 WF

Standard for front-loaders and a 6.3 WF Standard for top-loaders) are

likely to result in the unavailability in the State of any residential

clothes washer type (or class) of performance characteristics

(including reliability), features, sizes, capacities, and volumes that are

substantially the same as those generally available in the State at the

time of DOE's finding; and

(4) a final rule that the 6.0 WF Standards (or, in the alternative, the 6.0

WF Standard for front-loaders and a 6.3 WF Standard for top-loaders)

may be enforced by California with respect to residential clothes

washers three years after the date of publication of the rule 4

4 Allowing for time for oral argument, for opinion writing, and for the Court's

mandate to become effective, if the Court issues the order that we request then

DOE would probably publish a final rule sometime in the second half of 2008.

That would mean, in turn, that under the three-year requirement, see p. 32 supra,

the Standards would take effect in the second half of 2011. At that time it would

make no sense for the 8.5 WF Standards, which were originally scheduled by

California to take effect on January 1, 2007, to take effect at all, for they would

take effect simultaneously with the 6.0 WF Standards, which were originally

scheduled to take effect on January 1, 2010.

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