Natural Resources Defense Council v. Perry, No. 18-15380 (9th Cir. 2019)
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The Ninth Circuit affirmed the district court's order directing the DOE to publish four energy conservation standards in the Federal Register and rejected DOE's challenges to the district court's assertion of jurisdiction under 42 U.S.C. 6305(a)(2). The panel held that DOE relinquished whatever discretion it might have had to withhold publication of the rules when it adopted the error-correction rule. Furthermore, the absence of genuine ambiguity in the rule's meaning precluded the panel from deferring to DOE's contrary interpretation.
The panel also held that section 6305(a)(2) provides the necessary "clear and unequivocal waiver" of sovereign immunity from citizen suits predicated on a non-discretionary duty imposed either by statute or regulation. Therefore, plaintiffs properly invoked the Energy Policy and Conservation Act's citizen-suit provision to challenge DOE's failure to perform its nondiscretionary duty to submit the four rules at issue.
Court Description: Department of Energy / Regulations. The panel affirmed the district court’s order directing the U.S. Department of Energy (“DOE”) to publish four energy- conservation standards in the Federal Register. The district court agreed with the plaintiffs’ contention that a DOE regulation known as the “error-correction rule,” 10 C.F.R. § 430.5, imposed upon DOE a non-discretionary duty to publish the standards in the Federal Register, and its refusal to do so violated the rule. The plaintiffs are a group of States and municipalities as well as several environmental and consumer organizations. They brought suit against DOE under the Energy Policy and Conservation Act (EPCA)’s citizen-suit provision. The panel rejected DOE’s challenges to the district court’s assertion of jurisdiction under 42 U.S.C. § 6305(a)(2). The panel held that DOE relinquished whatever discretion it might have had to withhold publication of the rules at issue when it adopted the error- correction rule. The panel further held that by delaying publication of the four rules beyond the period permitted under the error-correction rule, DOE violated the non- discretionary duty imposed by its own regulation. The panel also held that plaintiffs were not precluded from bringing the action under 42 U.S.C. § 6305(a)(2). The panel held that NRDC V. PERRY 5 § 6305(a)(2) provided the necessary clear waiver of sovereign immunity from citizen suits predicated on a non- discretionary duty imposed either by statute or regulation. The panel held that the plaintiffs properly invoked EPCA’s citizen-suit provision to challenge DOE’s failure to perform is non-discretionary duty to submit the four rules at issue for publication in the Federal Register.
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