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Court Voids a Bush Move on Energy by Matthew L. Wald New York Times, January 14, 2004

WASHINGTON -- The Bush administration acted illegally when it rescinded an efficiency standard for air-conditioners, an appeals court said Tuesday in reinstating the standard with a decision that favored 10 states and various environmental organizations.

The rule, which applies to central air-conditioners for houses, was one of several published by the Clinton administration during its last few days in office. It was effectively rescinded in a memorandum sent by Andrew H. Card Jr., chief of staff in the Bush White House, to the Energy Department, which formally acted in the early months of the new administration.

Tuesday's decision, by a panel of the United States Court of Appeals for the Second Circuit, in New York, appears to put limits on the power of a new president to reverse policies of his predecessor. It establishes that once a rule is published in the Federal Register, it cannot be reversed without a lengthy administrative process, even if it has not yet taken effect; the air-conditioner rule does not become effective until 2006.

The standard adopted by the Clinton administration requires that the efficiency of new air-conditioners be at least 30 percent better than the that of the least efficient model now legally for sale. In a revision that was thrown out by the court Tuesday, the Bush administration would have required improvement of only 20 percent.

Proponents of the Clinton rule had argued that eventually, the difference between a 20 percent improvement and a 30 percent improvement would amount to more than 1 percent of the electricity demand on a peak summer day. With lower peak demand, they said, fewer new power plants would be needed, air pollution from generating stations would be lower, less natural gas would be used, and markets would be more stable.

"We've had complete turmoil in the energy markets, in every shape and form," Eliot Spitzer, attorney general of one plaintiff, New York State, said of soaring natural gas prices and last summer's blackout. Mr. Spitzer added that the decision made an important procedural point. "The chief of staff of the president," he said, "cannot unilaterally say rules that have been issued will not take effect."

The Air-Conditioning and Refrigeration Institute, a trade group that joined the case on the side of the Energy Department, said it was now considering whether to revive an earlier suit against the 30 percent rule, an action it had set aside while this one was resolved. Air-conditioners with higher efficiency are not hard to make, and some models already on the market are far more efficient than the minimums now at issue. But they are also more expensive to buy and, the institute says, are always larger, so that they will be hard to fit into houses as old units need replacement.

Besides New York, the plaintiffs in the case decided Tuesday were New Jersey, Connecticut, Vermont, Maine, Nevada, California, the Natural Resources Defense Council, the Consumer Federation of America and the Public Utility Law Project. In addition, Massachusetts, Rhode Island, New Hampshire and several organizations intervened on their behalf.

The case was decided by Judges James L. Oakes, an appointee of President Richard M. Nixon, and Sonia Sotomayor, who was appointed to the bench by the first President George Bush and later to the appeals court by President Bill Clinton. Judge Guido Calabresi, a Clinton appointee, recused himself after oral arguments.