Metropolitan News-Enterprise


Thursday, October 29, 2009


Page 1


Court Reverses Rejection of Washing Machine Standards


By STEVEN M. ELLIS, Staff Writer


The Department of Energy acted arbitrarily and capriciously when it declined to allow California to establish water efficiency standards for residential clothes washing machines, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A three-judge panel held that the department failed meaningfully to address the California Energy Commission’s request for a waiver of preemption under the Energy Policy and Conservation Act when the department rejected the request in 2004.

The commission filed suit in 2007 seeking to overturn the department’s action, arguing that the standards would save substantial amounts of electricity, natural gas and water, and enhance efforts to curb greenhouse gas emissions.

California is currently experiencing a severe water crisis, which is expected to worsen as the state population increases over the next three decades and current water supplies decrease. The state says it has no new significant conventional supplies available to increase the amount of water available, and has begun pursuing alternative solutions, including efforts at water recycling, desalination and increased water efficiency.

As part of that effort, the state Legislature in 2002 passed legislation requiring the commission to establish water efficiency standards for residential clothes washing machines, which were said to account for 22 percent of the water use in a typical household.

Under the legislation, the commission’s standards were required to ensure that washing machines sold in California after 2007 used no more than 8.5 gallons per cubic foot of washing machine capacity, decreasing to six gallons by 2010.

The EPCA expressly preempts state regulation of energy efficiency, energy use or water use of any product covered by federal energy efficiency standards, and the department in 2001 adopted federal energy efficiency standards for residential clothes washing machines, so the California Legislature required the commission to petition the department to waive preemption.

However, the department denied the commission’s request. It reasoned that the proposed Jan. 1, 2007 effective date for the standards violated a mandatory three-year delay between the date of the department’s grant of a waiver and the date on which a state standard takes effect, and that the commission failed to provide any information necessary to support a different effective date.

The department also concluded that the commission did not meet a statutory standard requiring the state to show unusual and compelling water interests.

The commission contended that a cost-benefit analysis showed that its regulation would be preferable to non-regulatory alternatives, but the department said the commission’s petition did not support that conclusion with data that would have allowed the department to determine whether the statutory standard was satisfied.

The department further concluded that the proposed standards would make top-loading washing machines unavailable in California.

The commission appealed, and Senior Judge William C. Canby Jr. wrote that the department’s decision was arbitrary and capricious because none of the reasons proffered by the department supported its rejection of the waiver request.

He faulted the department for making no attempt to determine whether the commission’s analysis would reasonably support a waiver and for instead dismissing the request as “part of an inflexible rule demanding a strict parity between proposed implementation dates and the research supporting the proposed standards.”

Canby explained:

“Because states seeking waivers cannot be prescient as to the date upon which the DOE will approve or deny a given application, some flexibility is patently necessary in order for the petitioning state to provide any analysis that is reasonably timely.”

The judge also said the commission provided sufficient data and analysis to make a decision concerning whether the standards were preferable or necessary compared to alternatives, and he criticized the department for failing to address the commission’s evidence of the probable capability of top-loading washers to comply with proposed standards in the future.

However, Canby declined to order the department to grant the commission’s petition, instead remanding to the department for further proceedings.

“[T]his Court’s appropriate role is not to engage in the underlying analysis to determine whether the statutory criteria are met, even if the [commission] might have supplied the DOE with sufficient information to do so,” he said. “Considering the significant number of issues left for resolution, many of which require factual findings in the DOE’s area of expertise, we decline to order a waiver on the present record.”

Judge Kim McLane Wardlaw and U.S. District Judge David G. Trager of the Eastern District of New York, sitting by designation, joined Canby in his opinion.

The case is California Energy Commission v. Department of Energy, 07-71576.


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