ASHRAE, DOE and GAMA, can be shown to meet the statutory requirements of practicability and economic efficiency. It may even be that analysis conducted independently by DOE, taking into account GAMA's objections, came to that conclusion, because a declaration filed by a DOE official suggests that DOE is aware of and has a substantive response to GAMA's critiques.
However, in light of DOE's failure adequately to justify its standby loss criteria on the record and the fact that the law does not favor agency decisions made on the basis of documents not in the public rulemaking record, see, eg., American Petroleum Institute v. Costle, 197 U.S. App. D.C. 254, 609 F.2d 20 (D.C.Cir. 1979), the Court enjoins DOE from proceeding with enforcement of the water heater criteria pending a reconsideration, consistent with this Memorandum, of the provisions on remand.
The Court remands section 9.3.2 and the portions of table 9.3-1 dealing with "Minimum Performance (Loss)" for electric, gas and oil storage water heaters to DOE, which must provide a statement of reasons for adoption of standby loss criteria, with attention to the relevant statutory requirements, including those dealing with practicability, cost-benefit analysis, and impact on affected groups. DOE must also place in the public rulemaking record all of the materials on which it now relies in determining the water heater criteria it adopts on remand. DOE shall publish its statement in the Federal Register by November 30, 1989, make the materials upon which it relies available by that date, and invite all interested participants to comment by January 15, 1990. Plaintiffs shall file their response or responses with DOE by the January 15 date. DOE shall publish by February 15, 1990, in the Federal Register a statement responding to plaintiffs' critique and any others, again with reference to the statutory requirements and announcing appropriate standby loss criteria.
Until this process has been completed, DOE will be enjoined from taking any public action to enforce the requirements of section 9.3.2 and the relevant portion of table 9.3-1. This permanent injunction shall extend only to section 9.3.2 and the portions of table 9.3-1 dealing with "Minimum Performance (Loss)" for electric, gas and oil storage water heaters, and not to any other provision of the Interim Rule.
An appropriate Order accompanies this Memorandum.
October 6, 1989.
ORDER - October 6, 1989, Filed
Upon consideration of the cross-motions and the entire record herein and for the reasons stated in the accompanying Memorandum, it is hereby
ORDERED that plaintiffs' motion for summary judgment is granted; and it is further
ORDERED that the Secretary of Energy's motion to dismiss or for summary judgment is denied; and it is further
ORDERED that the portions of table 9.3-1 dealing with "Minimum Performance (Loss)" for electric, gas and oil storage water heaters and section 9.3.2 of the Department of Energy Interim Rule published January 30, 1989, at 54 Fed. Reg. 4538, are remanded to the Department of Energy for proceedings in accordance with the Court's Memorandum: the Secretary of Energy shall publish in the Federal Register by November 31, 1989, a statement as described in the Memorandum, plaintiffs shall respond by January 15, 1990, and the Secretary of Energy shall publish in the Federal Register a reply by February 15, 1990; and it is further
ORDERED that the Secretary of Energy is enjoined from taking any public action to enforce the requirements of section 9.3.2 and the above-mentioned portions of Table 9.3-1, pending completion of the remand.
October 6, 1989.