Last week, I noted that EPA had been ordered to respond to a petition by Connecticut under § 126(b) of the Clean Air Act. This week, DOE was ordered to promulgate energy efficiency rules under the Energy Policy and Conservation Act. My mother used to say that comparisons are odious, but I have to say that DOE’s conduct was even more egregious than that of EPA.
DOE actually finalized the standards in 2016. It simply did not send the regulations to the Federal Register, because DOE’s “Error Correction Rule” required that DOE give the public 45 days to review the regulations, not for substantive comment, but only to find “errors,” defined as:
an aspect of the regulatory text of a rule that is inconsistent with what the Secretary intended regarding the rule at the time of posting
Other aspects of the Error Correction rule make clear that it is not an opportunity for the public to make substantive comment or for DOE to revise the efficiency rules. Moreover, each energy efficiency rule was described by DOE as being a “final rule.”
There were four rules. DOE received no suggestion of error as to three rules. One rule had an error. One “table included the value ‘>300,000’ instead of ‘≥300,000.’” And yet, DOE still has not sent the rules to the Federal Register, which is required for them to take effect. The Court was was not pleased. It rejected what DOE described as its:
“free-standing authority and discretion to continue to assess, modify, or withdraw draft rules that the agency has contemplated before those rules are published as final rules in the Federal Register.”
As the Court emphasized, “there is no support for this assertion in the language of the Rule or the history of its adoption.” The Court thus found the rule to be unambiguous in requiring publication in the Federal Register following the “error correction” process.
I think that the courts’ efforts to rein in the Administration’s efforts to avoid issuing regulations is going to have to become a regular feature of this blog.