National Electrical Manufacturers Ass'n v. United States Department of Energy

SHEDD, Circuit Judge,

dissenting:

When viewed in context, the statute we are reviewing is clearly unambiguous, and the Department of Energy’s (“DOE”) final rule is contrary to the statute and Congress’s clear direction. Therefore, I would grant the petition, vacate the final rule, and remand the matter to DOE for action consistent with the law.

Nineteen years ago, Congress enacted the Energy Policy Act of 1992 (the “Act”), part of which directed DOE to prescribe energy conservation standards for small electric motors. See 42 U.S.C. § 6317(b). The Act defines “small electric motor” as “a NEMA1 general purpose alternating current single-speed induction motor, built in a two-digit frame number series in accordance with NEMA Standards Publication MG1-1987.” 42 U.S.C. § 6311(13)(G). In the House Report accompanying the Act, Congress explained the Act “requires DOE to prescribe energy conservation standards for ... electric motors of less than one horsepower.” H.R. REP. 102-474(1), at 208 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 1998 (emphasis added). The dispositive question before us is straightforward: as used in the Act, what does “small electric motor” mean?

The first step in answering that question is deciding whether “in accordance with NEMA Standards Publication MG1-1987” modifies the entire definition or only “two-digit frame number series.” Under the facts in this case, there would appear to be no doubt that it applies to the whole definition because both NEMA and DOE have consistently agreed throughout the rule-making process that the reference to NEMA Standards Publication MG1-1987 applies to all facets of the statutory definition of small electric motors. In other words, the entire definition in 42 U.S.C. § 6311(13)(G) should be read in accordance with MG1-1987.

However, the majority has adopted DOE’s newly announced litigation posture that MG1-1987 applies only to “two-digit frame number series” in 42 U.S.C. § 6311(13)(G).2 In reaching its decision, *517the majority focuses primarily on the placement of the comma3 and selective canons of statutory construction to determine that the phrase “in accordance with NEMA Standards Publication MG1-1987” does not apply to “a NEMA general purpose alternating current single-speed induction motor.” Accordingly, the majority finds that “small electric motor” is statutorily limited by a motor’s frame size, but not by the amount of horsepower a motor has.

But the obvious reading of the definition is that “in accordance with NEMA Standards Publication MG1-1987” modifies the entire statutory definition of “small electric motor.” The dual references to “NEMA” unmistakably link the entire definition together as a whole, see U.S. v. Atlantic Research Corp., 551 U.S. 128, 135, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007) (“Statutes must ‘be read as a whole.’ ”), and nothing suggests that the “in accordance with” language should not be read as applying to the entire definition, see Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944 (1920) (“When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.”). This reading is bolstered by the fact that the phrase “general purpose alternating current” motor, used in the first line of the statutory definition, is lifted verbatim from Section 1.05 of MG11987 (which section DOE and the majority would at least partially apply, see ante, at 513-14).4 Thus, in my opinion, § 6311(13)(G) unambiguously incorporates all of MG1-1987, just as if MG1-1987 had been written into the statute. See, e.g., United States v. Myers, 553 F.3d 328, 331 (4th Cir.2009) (“The general rule is that when one statute adopts a provision of another statute by specific reference, it is as if the adopting statute had itself spelled out the terms of the adopted provision .... ”).

Therefore, we turn to MG1-1987 to determine what “small electric motor” means, and it is clear that MG1-1987 does not include standards for small motors greater than one horsepower.5 A general purpose alternating-current motor is defined in Section 1.05 of MG1-1987 (emphasis added):

A general-purpose alternating-current motor is an induction motor ... which incorporates ... the following: *518(3) Service factor in accordance with MG1-12.47.

It is designed in standard ratings with standard operating characteristics ....6 These factors, ratings, and operating characteristics are defined more fully in various sections of MG1-1987. First, Section 1.05 directs us to the service factors found in Section 12.47 (and illustrated in Table 12-2); those factors are delineated in terms of horsepower and speed ratings and clearly distinguish between small and medium motors; small motors are one horsepower or less. Second, the “standard ratings” referenced in Section 1.05 are found in MG1-1987 Part 10. There, Section 10.32 and Table 10-1, both entitled “Horsepower and Speed Ratings,” illustrate the horsepower and speed ratings for small and medium induction motors— small motors do not exceed one horsepower. Finally, Section 1.05’s “standard operating characteristics” requirement is found in Section 12.32.2. This section provides the standard locked-rotor torque operating characteristics for small and medium motors — small motors include only motors up to one horsepower.

Thus, Section 1.05 of MG1-1987, by incorporating Parts 10 and 12, provides the full and complete definition of a general purpose alternating current motor. And that complete definition in Section 1.05 provides a clear demarcation between “small” and “medium” general purpose alternating current motors. As noted therein, small motors do not exceed one horsepower.

Although the majority concludes that the definition of small electric motor adopts MGl-1987’s standards only as it applies to frame size, it endorses DOE’s fallback position that MG1-1987 does not clearly contain a horsepower limitation even if it were to be applied in its entirety. Although acknowledging that Section 1.05 of MG1-1987 and Parts 10 and 12 do provide standards and ratings applicable to small electric motors, the majority and DOE inexplicably conclude the statutory definition does not incorporate the distinctions between small and medium motors found in those specified standards and ratings. Ante, at 509. In fact, under this interpretation, the majority effectively excises the word “small” from the very term — small electric motor — the statute is defining. Thus, under the majority’s view, the MG1-1987 definition of a small motor includes motors deemed by MG1-1987 to be medium motors.

Congress certainly intended no such result. By referring to MG1-1987 in the statute, Congress incorporated the publication in its entirety, including the ratings and standards which defined small motors. Thus, Congress intended to grant DOE authority only to regulate small electric motors, which in 1992 Congress and NEMA understood to be motors of one horsepower or less.7 In fact, the congres*519sionally incorporated publication MG11987 contains no reference — directly or indirectly — to “small” motors greater than one horsepower.

Lest there be any doubt about this point, Congress’s clear understanding is expressed explicitly in the language of the House Report, which states that the Act “requires DOE to prescribe energy conservation standards for ... electric motors of less than one horsepower.” H.R. REP. 102-474(1), at 208 (1992), reprinted in 1992 U.S.C.C.A.N. 1953, 1998 (discussing 42 U.S.C. § 63178) (emphasis added). The House Report language is important because it explains what the statutory language at issue meant to the members of Congress who had expertise over these matters; namely, the membership of the House Energy and Commerce Committee. Other members of Congress look to such Report language to understand how the bill works, what it means, and how it is to be applied. See, e.g., Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (“In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represent] the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation.’ ” (quoting Zuber v. Allen, 396 U.S. 168, 186, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969))). Second only to the words used in the statute itself, a committee report is perhaps the most definitive expression of congressional intent. Here, the impact of these words is heightened because we have more than a general statement by Congress from which we would need to draw an inference. This is a specific congressional expression on the very issue before us. Indeed, congressional intent on this specific issue is clear: DOE is given authority “to prescribe energy conservation standards for ... electric motors of less than one horsepower”— nothing more.9 DOE and the majority cavalierly dismiss this legislative language or read it in a fashion that turns the congressional directive on its head.

The majority first dismisses the House Report language because it believes Congress did not speak directly enough. According to the majority, although the House Report contemplates regulation of small motors “less than one horsepower,” it is silent as to other horsepower sizes, and to infer such a horsepower limitation is to draw an impermissible “negative inference.” But reading the House Report language as limited to motors of one horsepower or less is not based on a negative inference; it is based on the positive statement of what Congress intended by this specific provision of the Act — limiting DOE’s regulatory authority to motors of one horsepower or less. See, e.g., Am. Petroleum Inst. v. U.S. Envtl. Prot. Agency, 198 F.3d 275, 278 (D.C.Cir.2000) (“[I]f Congress makes an explicit provision for *520apples, oranges and bananas, it is most unlikely to have meant grapefruit.”).

Then, to the extent the majority would consider this congressional language at all, it adopts the overreaching view asserted by DOE that even if Congress indicated it wanted to regulate motors of one horsepower or less, DOE has acted consistently with this requirement by regulating motors of even larger horsepower as long as the one horsepower motors are included in such a regulation.10 This approach turns Congress’s pronouncement on its head: it would mean if Congress authorizes a specific, limited action in a particular regulatory area, it has authorized all regulatory action in that area. The suggestion that a partial grant of governmental authority equals a complete grant of authority is astonishing — only in “government speak” can “less than one horsepower” actually mean “up to three horsepower.”

In the final analysis, DOE asks us to: (1) ignore the fact that Congress statutorily incorporated the entirety of NEMA Standards Publications MG1-1987; (2) ignore the word “small” in our effort to understand what Congress meant by “small electric motor;” (3) ignore the fact that for purposes of this litigation DOE has completely reversed its longstanding interpretation of the statute; (4) ignore NEMA’s considered view of a NEMA publication which Congress intentionally incorporated into the statute; and (5) ignore specific, relevant House Report language or in the alternative accept DOE’s reading which turns that language on its head. We should reject all of these premises.11

We should also reject DOE’s new position because it alters the fundamental relationship between Congress and the bureaucracy. Instead of giving a real world assessment of Congress’s statements, the majority’s analysis shifts control of this entire regulatory area from Congress to the bureaucracy, absent congressional authorization. See Brown & Williamson Tobacco Corp. v. Food & Drug Admin., 153 F.3d 155, 161 (4th Cir.1998) (“[Ajgency power is not the power to make law. Rather, it is the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.” (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976) (internal quotation marks omitted))). What DOE proposes is not gap-filling; it is misreading congressional intent to justify an agency claiming more authority. No Supreme Court or Fourth Circuit case requires us to take such a dramatic step with this statute, and I would decline to do so.

At bottom, this is more than an academic exercise: we are deciding what Congress meant by “small electric motor” in a statute that has actual impact in the real world. When we review a congressional enactment, we should be about the *521business of ascertaining and following congressional intent, which “is of particular importance where, as here, an agency is attempting to expand the scope of its jurisdiction.” Brown & Williamson, 153 F.3d at 162 (“[T]he more intense scrutiny that is appropriate when the agency interprets its own authority may be grounded in the unspoken premise that government agencies have a tendency to swell, not shrink, and are likely to have an expansive view of their mission.” (quoting Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 916 (3d Cir.1981))). We simply should not apply selective canons of construction or caselaw to grant authority to DOE which it can only justify by creating a litigation position at odds with its longstanding regulatory position. The statute, confirmed by the House Report language, is clear and unambiguous that small electric motors are motors of one horsepower or less.

Accordingly, I respectfully dissent.

. The petitioner in this appeal, National Electrical Manufacturers Association ("NEMA”), is a not-for-profit trade association that represents a variety of electrical manufacturers. Among other things, NEMA develops and publishes standards relating to electrical products, including the 1987 edition of the Standards Publication MG1 at issue here.

. In this petition for review, DOE takes the position — for the first time — that the "in accordance with” language modifies only the second "clause” of the definition. This is completely contrary to their stated position throughout the rulemaking process. Compare 74 Fed.Reg. 61421 (“[DOE agrees] with NEMA that the reference MG1-1987 applies to all facets of the statutory definition of a small electric motor. The language of the statute specifies that the requirements of MG1-1987 apply in determining what constitutes a small electric motor.... The statutory definition of a small electric motor is bound to the definition of a general-purpose alternating-current motor as defined in NEMA MG1-1987.”) (emphasis added), with Resp. Br. at 29 ("As explained above, the reference to MG 1-1987 comes later, and expressly modifies only the phrase 'built in a two-digit frame number series.’ ”). This switch in position appears to be an acknowledgement by DOE that its final rulemaking could not otherwise withstand the challenge by NEMA. Such a post-hoc litigation position is entitled to no weight or deference. See, e.g., Wheeler v. Newport News Shipbuilding & Dry Dock Co., 637 F.3d 280, 290 (4th Cir. 2011) (showing no deference to the agency's interpretation where it was merely a litigating position); Village of Barrington v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C.Cir.2011) (giving no deference to an agency's " 'litigat*517ing positions’ raised for the first time on judicial review").

. While the location of the comma is part of the majority’s analysis, its removal would not in any material manner affect its analysis or its ultimate result. See the majority’s discussion of the last antecedent rule, ante at 508-09.

. In its new litigation position, DOE seeks to minimize the relevance of MG1-I987. But DOE’s position underscores its inconsistency. Despite arguing that MG1-1987 (which DOE describes as “decades-old industry standards”) applies only to the "second clause” of § 6311(13)(G), throughout its briefs DOE repeatedly interprets the "first clause” in the definition in light of selective provisions and standards in MG1-1987. See, e.g., Resp. Br. at 29 ("DOE has interpreted the earlier part of the phrase — 'NEMA general purpose ... motor’' — to refer to MG1-1.05....”); cf. J.A. 146, 538 (acknowledging that "the 1987 version is the only applicable version of NEMA MG1.”).

.DOE concedes this point, acknowledging in the Final Rule "that NEMA MG1-1987 does not provide ratings for small motors of the identified higher horsepower ratings” (i.e. motors of greater than one horsepower which DOE is seeking to regulate under this rule-making). 75 Fed.Reg. at 10883.

. The majority states that I "selectively” quoted Section 1.05, ante at 509 n. 12, with the apparent implication that I have purposely avoided relevant statutory provisions. Such an implication is unfounded. I have expressly noted only the provisions of Section 1.05 that are relevant to the question presented in this case, which is the maximum horsepower limitation for small electric motors. The 200 horsepower ceiling, which includes medium motors, in no way sets the maximum horsepower for small electric motors. Neither the 200 horsepower ceiling nor other requirements found in Section 1.05 but which I have not expressly noted — such as "open construction,” "continuous duty,” or "insulation systems” — address the question presented in this case. Not even DOE argues that small horsepower motors here exceed 3 horsepower.

. MG1-1987 was incorporated as it existed in 1992 when Congress referenced it in the Act. The fact that DOE has "commendably looked to industry practice” and "logically looked to *519market realities,” ante at 512, is of no moment. That the industry may have developed motor technology not contemplated in 1992 does not authorize DOE to extend its authority beyond what the statute authorizes.

. DOE acknowledges it promulgated the final rule at issue pursuant to the authority delegated to it in 42 U.S.C. § 6317.

. Although Congress stated the limitation as “less than one horsepower,” that imprecise wording has no real significance here. DOE affirmatively asserts it makes no difference, and the majority’s analysis is not based on this particular wording. DOE understands the question before us concerns motors of one horsepower or less. See J.A. 82 (stating DOE’s acknowledgment in the scope of coverage for the proposed rulemaking that "MG11987 identifies small induction motors as motors with horsepower ratings from 1 millihorsepower up to 1 horsepower”).

. See Resp. Br. at 31-33 (arguing that by regulating electric motors up to three horsepower, DOE also regulated electric motors of less than one horsepower and was therefore acting consistently with the express intent of Congress).

. Contrary to the majority’s suggestion, I do not believe the majority has been “hoodwinked.” Ante, at 507 n. 11. This is a description the majority applies to itself. I merely point out that the majority has accepted DOE’s new position on how to read the statutory definition, a position which DOE indisputably takes for the first time in this litigation. Further, perhaps to deemphasize DOE’s changed position, the majority asserts that NEMA has “adopted [its current view] for the express purpose of challenging the DOE’s rulemaking.” Id. The majority has the power to reject NEMA’s view of a NEMA document, but there is no basis in the record to assert that NEMA, like DOE, has recently changed its position on how the definition is to be read.