Coalition Sues DOE To Enforce Energy-Conservation Standards

A coalition of States, municipalities, environmental, and consumer advocacy groups sued the United States Department of Energy (DOE) under the Energy Policy and Conservation Act"s (EPCA) citizen-suit provision in late 2018. The district court sided with the plaintiffs stating that DOE had a non-discretionary duty to publish standards in the Federal Register and its refusal to do so violated the law.The United States Court of Appeals affirmed the district court’s ruling directing DOE to publish four energy-conservation standards in the Federal Register.


DOE's Rulemaking Process

The EPCA authorized DOE to establish energy-conservation standards for products and industrial equipment. The standards in question were approved by the DOE under the Obama Administration. The Trump Administration's DOE refused to promulgate the rules need to implement them. The advocacy coalition argued that a DOE “error-correction rule” creates a non-discretionary duty upon DOE to publish the proposed rules for public comment in the Federal Register. The rule creates a 45-day window between DOE’s issuance of a final rule setting an energy-conservation standard and the rule’s publication in the Federal Register. DOE posted the rule on its website for the 45-day period and invites the public to identify errors that should be corrected before the standard is made official.  If the Secretary of Energy decides not to make any corrections or no errors are identified, the Secretary will submit the rule to the Office of the Federal Register for publication.


In 2016, DOE finalized four energy-conservation standards at issue by posting the final rules for standards of different products on its website. These products consisted of portable air conditioners, commercial packaged boilers, uninterruptible power supplies, and air compressors. The final rules were signed by a DOE official and indicated “the Secretary of Energy has approved publication of this final rule.” The 45-day period inviting the public to comment ended in early 2017. The DOE has however refused to submit any of the rules for publication. DOE stated it “is continuing to review” the rules.

District Court Decision

The district court found it had jurisdiction under 42 U.S.C. § 6305(a)(2). The law states that district courts have jurisdiction to enforce provisions or rules that Federal agencies perform as an act or duty. The court rejected the government’s argument that the provision’s scope is limited to duties imposed by statute. It also concluded the error-correction rule requires the DOE publish the four rules at issue and the DOE has violated this duty by withholding publication. The district court held that DOE was ordered to publish the four rules in the Federal Register.

DOE’s Appeal

DOE appealed the district court’s ruling, claiming the error-correction rule does not impose a duty to publish final rules in the Federal Register. The government also claimed that Plaintiffs cannot invoke 42 U.S. Code § 6305(a)(2) because it only authorizes suits for the enforcement of non-discretionary duties imposed by statute. The Appeals Court disagreed with the government and rejected both arguments.

DOE argued the word “will” in § 430.5(f) was intended to be descriptive rather than prescriptive. The use of the word “will” the government argues, refers to where the code indicates “the Secretary will submit the rule for publication to the Office of the Federal Register as it was posted.” The Appeals Court found the government’s argument questionable. It stated the word is used in a mandatory sense, such as § 430.5(c) where it indicates the Secretary “will cause a rule under the Act to be posted on a publicly-accessible Web site.” DOE also stated the error-correction rule should not be read as imposing a non-discretionary duty to publish because the rule does not deprive the Secretary of the discretion to withdraw a final rule prior to publication.

The Appeals Court noted a similar argument was used in Sacks v. Office of Foreign Assets Control, 466 F.3d 764 (9th Cir. 2006). In Sacks, the court refused to require an agency to “articulate all of the acts the agency may not engage in” to guarantee that mandatory prescriptions be followed. The court explained this reasoning is like the error-correction rule’s use of the word “will.” According to the court, the word “will” imposes a duty that constrains the discretion that the Secretary might have possessed. The court also stated the lack of deadlines the Secretary must submit a rule for publication after the 45-day period does not make the duty to publish discretionary.

DOE claimed the Plaintiffs should be unable to bring the legal action under 42 U.S.C. § 6305(a)(2). The agency argued the Plaintiffs are required to identify the failure by DOE to perform an “act or duty under this part.” According to the agency, “under this part” refers to duties imposed by statute, not duties imposed by regulations, like the error-correction rule. However, the Appeals Court disagreed with DOE and stated the phrase pertains to both statutes and regulations.

Changing Priorities

The DOE’s refusal to publish the energy-conservation standards demonstrates the change of priorities from one administration to the next. If you would like more information about this case or how it might affect you, contact Whitcomb Selinsky PC at (866) 476-4558.

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