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No. 05-331

In the Supreme Court of the United States

AIR CONDITIONING AND REFRIGERATION INSTITUTE, ET AL., PETITIONERS

v.

ENERGY RESOURCES CONSERVATION AND
DEVELOPMENT COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General
JONATHAN LEVY
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether certain labeling, product-marking, and data- submission requirements imposed upon appliance manu facturers by the State of California are preempted by Section 327(a)(1) of the Energy Policy and Conservation Act, Pub. L. No. 94-163, 89 Stat. 926 (42 U.S.C. 6297(a)(1)).

In the Supreme Court of the United States

No. 05-331

AIR CONDITIONING AND REFRIGERATION INSTITUTE, ET AL., PETITIONERS

v.

ENERGY RESOURCES CONSERVATION AND
DEVELOPMENT COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

This brief is submitted in response to the Court's invita tion to the Solicitor General to express the views of the United States.

STATEMENT

1. The Energy Policy and Conservation Act (EPCA or Act), Pub. L. No. 94-163, 89 Stat. 871, was enacted in 1975 and has been amended by, inter alia, the National Appliance En ergy Conservation Act of 1987 (NAECA), Pub. L. No. 100-12, 101 Stat. 103. See Pet. App. 9a-12a (summarizing develop ment of statutory scheme). The Act is jointly administered by the Federal Trade Commission (FTC or Commission) and the Secretary of Energy (Secretary).

The appliances covered by the Act include 18 specified consumer products (e.g., refrigerators, air conditioners, water heaters, and clothes washers), as well as any other consumer products that are classified as "covered product[s]" by the Secretary. See 42 U.S.C. 6292(a). The EPCA authorizes the Secretary to prescribe "[t]est procedures" (42 U.S.C. 6293), which "shall be reasonably designed to produce test results which measure energy efficiency, energy use, water use * * * , or estimated annual operating cost of a covered prod uct during a representative average use cycle or period of use." 42 U.S.C. 6293(b)(3). The Act directs the FTC to pro mulgate labeling rules for covered products. See 42 U.S.C. 6294. The label for a covered product must "disclose[]" the appliance's estimated annual operating cost (as determined under the Secretary's testing procedures) and the range of estimated annual operating costs for comparable products. 42 U.S.C. 6294(c)(1)(A) and (B). A labeling rule may also "re quire disclosure" of the same information on "printed matter displayed or distributed at the point of sale of such product." 42 U.S.C. 6294(c)(4). Similar testing and labeling provisions apply to certain commercial and industrial appliances. See 42 U.S.C. 6314-6315.

Other EPCA provisions require manufacturers of covered products to furnish information to the Secretary or the FTC. Manufacturers must "submit information or reports to the Secretary with respect to energy efficiency, energy use, or, * * * water use of such covered product," 42 U.S.C. 6296(d)(1); "supply to the Commission relevant data respect ing energy consumption or water use" annually, 42 U.S.C. 6296(b)(4); and "provide" to the Secretary or Commission, upon request, "the data from which the information included on the label and required by the [labeling] rule was derived," 42 U.S.C. 6296(b)(2).

The EPCA also provides for "[p]reemption of testing and labeling requirements." 42 U.S.C. 6297(a) (title).1 Section 6297(a)(1) states that the Act supersedes any State regulation insofar as such State reg ulation provides at any time for the disclosure of informa tion with respect to any measure of energy consumption or water use of any covered product if-

(A) such State regulation requires testing or the use of any measure of energy consumption, water use, or energy descriptor in any manner other than that pro vided under section 6293 of this title; or

(B) such State regulation requires disclosure of infor mation with respect to the energy use, energy effi ciency, or water use of any covered product other than information required under section 6294 of this title.

42 U.S.C. 6297(a)(1).

2. Petitioners are "four major trade organizations repre senting appliance manufacturers nationwide." Pet. App. 2a. They filed suit in federal district court, alleging that certain regulations of respondent California Energy Resources Con servation and Development Commission (CERCDC), Califor nia's energy planning and policy agency, are preempted by 42 U.S.C. 6297(a)(1). As the case comes to this Court, three as pects of the state regulatory scheme remain at issue.

First, Cal. Code Regs. tit. 20, § 1606(a) (Pet. App. 50a-57a) requires manufacturers to file with the CERDC a significant range of information for certain appliances, including data concerning the appliances' consumption of energy. Second, Cal. Code Regs. tit. 20, § 1607(b) and (c) (Pet. App. 69a-70a) "require appliances to be labeled with the manufacturer's name, brand name, or trademark; the appliance's model num ber; and the date of manufacture." Id. at 13a. Third, for cer tain commercial and industrial appliances as to which no fed eral labeling regulations have been issued, Cal. Code Regs. tit. 20, § 1607(d)(2) (Pet. App. 70a) requires that specified energy-performance information be marked on each unit and "included on all printed material that is displayed or distrib uted at the point of sale." See id. at 17a n.11.2 The district court held that the challenged state-law provisions are pre empted by the EPCA and enjoined enforcement of those pro visions against petitioners. See id. at 23a-44a.

3. The court of appeals reversed. Pet. App. 1a-22a.

a. The court of appeals held that the data-submission requirements of Cal. Code Regs. tit. 20, § 1606(a) are not pre empted because those provisions do not mandate the "disclo sure" of information within the meaning of 42 U.S.C. 6297(a). Pet. App. 6a-12a. In light of "the presumption that Congress did not intend to supplant state law," the court stated that it would "narrowly interpret § 6297(a) in general, and the phrase 'disclosure of information' in particular." Id. at 7a. The court explained that the phrase "disclosure of informa tion" is used in other EPCA provisions to refer to labeling requirements, ibid., and that "Congress did not use the phrase 'disclosure of information' in EPCA when it referenced manufacturers providing data to the [DOE]; instead, Con gress used the phrase 'submit information or reports,'" id. at 7a-8a. The court also noted that its construction of the phrase "disclosure of information" is supported by the FTC's regula tions implementing the EPCA, which use the word "disclo sure" to refer to consumer-directed labeling and the phrase "[s]ubmission of data" to refer to the provision of information to regulators. Id. at 8a n.5 (citing 16 C.F.R. Pt. 305).

b. The court of appeals held that the marking require ments of Cal. Code Regs. tit. 20, § 1607(b) and (c) are not pre empted because, under an appropriately narrow construction of 42 U.S.C. 6297(a)(1), "[t]he information required to be placed on appliances under section 1607(b) and (c) is not 'infor mation with respect to any measure of energy consumption or water use.'" Pet. App. 14a; see id. at 13a-16a. The court ex plained that "[t]he relation between placing a manufacturer's name, the model name, and the date of manufacture on an appliance and measures of energy consumption, as defined in EPCA, is indirect, remote, and tenuous." Id. at 15a-16a.

c. The court of appeals held that Cal. Code Regs. tit. 20, § 1607(d)(2) is not preempted because it applies only to cer tain industrial and commercial appliances for which no federal labeling requirements have been promulgated. Pet. App. 17a- 19a. The court concluded that, because the Department of Energy (DOE) has not yet made an affirmative decision as to the labels that should be placed on those appliances, the chal lenged state rules could not properly be said to mandate dis closures "other than" what federal law requires. Id. at 18a- 19a.

d. Judge Noonan dissented. Pet. App. 21a-22a.

ARGUMENT

Petitioners do not contend that any circuit conflict exists regarding the proper interpretation of 42 U.S.C. 6297(a)(1); indeed, they identify no other case in which any court has interpreted that provision. Neither the court of appeals' ar ticulation of the general principles that govern the construc tion of express preemption provisions of federal laws, nor the court's application of those principles to the circumstances of this case, presents any issue warranting this Court's review. The petition for a writ of certiorari should be denied.

A. The Court Of Appeals' Analysis Of The California Regula tions At Issue Here Does Not Warrant Further Review

1. Petitioners contend (Pet. 17-18) that Cal. Code Regs. tit. 20, § 1606, which requires appliance manufacturers to provide the CERDC with data concerning their products' energy consumption, is preempted by 42 U.S.C. 6297(a)(1). Under Section 6297(a)(1), a state regulation is preempted "insofar as such State regulation provides at any time for the disclosure of information with respect to any measure of en ergy consumption or water use of any covered product if," inter alia, "such State regulation requires disclosure of infor mation with respect to the energy use, energy efficiency, or water use of any covered product other than information re quired under section 6294 of this title." 42 U.S.C. 6297(a)(1), 6297(a)(1)(B). The court of appeals correctly rejected petition ers' preemption challenge to Cal. Code Regs. tit. 20, § 1606, holding that the relevant state requirements do not mandate the "disclosure of information" within the meaning of Section 6297(a)(1). Pet. App. 12a. Although the phrase "disclosure of information" might in some contexts encompass the submis sion of data to a state regulatory agency, abundant evidence in the text, structure, and history of the specific federal enact ments at issue here indicates that the phrase has a more lim ited meaning in Section 6297(a)(1).

a. Section 6297(a) itself is entitled "Preemption of testing and labeling requirements." 42 U.S.C. 6297(a). "[T]he title of a statute or section can aid in resolving an ambiguity in the legislation's text," INS v. National Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 189 (1991), and the reference to "labeling requirements" in Section 6297(a)'s title suggests that the term "disclosure" in the same Section is limited to the provision of information to potential purchasers at the point of sale. That inference is reinforced by the fact that the stat ute preempts state requirements for the "disclosure" of infor mation "other than information required under section 6294." 42 U.S.C. 6297(a)(1)(B). Section 6294 of Title 42 is entitled "Labeling" and directs the FTC to promulgate rules govern ing the information that must be placed on appliance labels. Section 6294, moreover, uses the words "discloses" and "dis closure" in describing the required contents of product labels under the FTC's rules. See 42 U.S.C. 6294(c)(1) and (4).

By contrast, the EPCA provisions that mandate the sub mission of information to the FTC or DOE do not use the word "disclosure" or any variant thereof. See Pet. App. 7a- 8a. Rather, those provisions direct manufacturers under specified circumstances to "notify the Secretary or the Com mission" of models in production to which the agencies' rules apply, 42 U.S.C. 6296(b)(1); to "provide" certain data upon request, 42 U.S.C. 6296(b)(2); and to "submit information or reports to the Secretary," 42 U.S.C. 6296(d). Because Section 6297(a)(1)(B) cross-references Section 6294, and because the terms "disclose" and "disclosure" are used in Section 6294 but not in Section 6296, Section 6297(a)(1)'s reference to state regulations governing "disclosure of information" is most naturally read as limited to state laws that are of the same character as Section 6294-i.e., state labeling directives. See Pet. App. 7a; compare Commissioner v. Lundy, 516 U.S. 235, 250 (1996) ("The interrelationship and close proximity of these provisions of the statute presents a classic case for application of the normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.") (citations and internal quotation marks omitted).

b. Although the EPCA reflects Congress's determination that energy conservation is a matter of national concern, the statute also contemplates that States will play an important role in this area. See 42 U.S.C. 6321(a)(1) and (2) (congressio nal findings). In particular, States are encouraged to develop energy-conservation plans, see 42 U.S.C. 6322, which may include "programs to promote energy efficiency in residential housing" through such measures as "the adoption of incen tives for builders, utilities, and mortgage lenders to build, service, or finance energy efficient housing," 42 U.S.C. 6322(d)(8), 6322(d)(8)(B). States and localities are specifically authorized to adopt building codes that "permit[] a builder to meet an energy consumption or conservation objective for a building by selecting items whose combined energy efficien cies meet the objective." 42 U.S.C. 6297(f)(3)(A); see H.R. Rep. No. 11, 100th Cong., 1st Sess. 39 (1987) (explaining that Section 6297(f) "allows States flexibility to implement per formance-based building code approaches" that "authorize builders to adjust or trade off the efficiencies of the various building components so long as an energy goal is met"). As a practical matter, effective implementation of such building- code provisions would be substantially impeded if States could not direct appliance manufacturers to submit energy-effi ciency data beyond the information required by Section 6294 and the FTC's rules to be included on a product's label.3 Sec- tion 6297(a)(1) should not be construed in such a manner that it hinders state efforts to implement energy-conservation programs that are affirmatively encouraged by other provi sions of the EPCA.

c. The court of appeals' construction of the EPCA term "disclosure" is also consistent with the longstanding position of the FTC. In comments submitted during an FTC rule making conducted in 1989, the State of New York urged the FTC to require manufacturers of covered lamp-ballast prod ucts to submit energy usage data to the Commission. 54 Fed. Reg. 28,032. As one reason for that request, the State ex pressed concern that the FTC's failure to require submission of those data could preclude the State from mandating compa rable submissions. The State explained that 42 U.S.C. 6297(a)(1)(B) might be construed to "preempt state regula tions that require the reporting of information concerning the energy use or efficiency of covered products other than infor mation required to be reported pursuant to § 305.8 of the Com mission's Appliance Labeling Rule [16 C.F.R. 305.8]." 54 Fed. Reg. at 28,032.

In response, the FTC expressed the view that

the most logical and reasonable reading of [42 U.S.C. 6297(a)(1)(B)] is that it does not preempt the states from requiring ballast manufacturers to report energy usage and efficiency information. This section of EPCA applies to the preemption of state testing and labeling require ments. Consequently, when this section states that it pre empts state disclosure regulations that differ from the Rule's disclosure requirements, it is referring to testing and disclosures on a covered product label, not to information-reporting requirements.

Id. at 28,033. As the court of appeals explained, the reading of 42 U.S.C. 6297(a)(1)(B) espoused in the 1989 preamble is also consistent with the text of the FTC's current EPCA reg ulations, which "use 'disclosure' to refer to consumer-directed labeling and 'submission' to refer to data-submittal to a gov ernment entity." Pet. App. 8a n.5.4

d. The history of 42 U.S.C. 6297(a)(1) confirms that the provision in its current form does not restrict the States' au thority to require manufacturers of covered appliances to submit energy-related data to state regulatory bodies. As originally enacted in 1975, Section 6297(a)(1) provided that any state regulation requiring "the disclosure of information with respect to any measure of energy consumption of any covered product" was preempted "if there is a rule under section 6294 of this title [i.e., an FTC labeling rule] applicable to such covered product and such State regulation requires disclosure of information other than information disclosed in accordance with such rule under section 6294 of this title." 42 U.S.C. 6297(a)(1), 6297(a)(1)(B) (1976) (emphasis added). The italicized language strongly indicates that the preemptive effect of Section 6297(a)(1) in its original form was limited to state labeling requirements, since there would have been no apparent reason for Congress to make the preemption of state data-submission laws contingent on the FTC's promulgation of a labeling rule for a particular covered product.

In 1987, the NAECA amended 42 U.S.C. 6297(a)(1) in a manner that raises the question, discussed at pp. 12-14, infra, whether that provision in its current form makes the preemp tion of state law requiring "disclosure" of specified informa tion contingent on the existence of a federal labeling require ment. See 42 U.S.C. 6297(a)(1) (1988). That amendment may affect the preemption analysis when a State seeks to establish labeling requirements for a covered product as to which there is no federal regulation imposing labeling requirements. See pp. 12-14, infra. But whatever the correct answer to that question, neither the text nor the history of the NAECA sug gests that Congress intended to alter the meaning of the pre- existing statutory term "disclosure," or to expand the pre emptive scope of Section 6297(a)(1) to encompass state data- submission as well as labeling requirements. To the contrary, the Senate Report accompanying the NAECA stated that the amended version of Section 6297(a)(1) "essentially restates existing law, and provides that the Act supersedes State and local regulations regarding testing and labeling in certain cases." S. Rep. No. 6, 100th Cong., 1st Sess. 9 (1987) (empha sis added).

2. Petitioners contend (Pet. 17-19) that 42 U.S.C. 6297(a)(1) preempts Cal. Code Regs. tit. 20, § 1607(b) and (c), "which require appliances to be labeled with the manufac turer's name, brand name, or trademark; the appliance's model number; and [the appliance's] date of manufacture." Pet. App. 13a; see id. at 13a nn. 7 & 8. That argument lacks merit. The preemptive scope of Section 6297(a)(1) is limited to state regulations that "provide[] * * * for the disclosure of information with respect to any measure of energy con sumption or water use of any covered product." 42 U.S.C. 6297(a)(1) (emphasis added). The italicized language does not encompass the routine product information required by Cal. Code Regs. tit. 20, § 1607(b) and (c), which has no inherent connection to a measure of "energy consumption" or "water use"-terms that are themselves defined by the EPCA, as the court of appeals explained. See Pet. App. 14a-15a & n.9.

Petitioners' preemption argument is based on the fact that the markings required by Cal. Code Regs. tit. 20, § 1607(b) and (c) are used in part to facilitate the implementation of energy-conservation programs adopted by the State of Cali fornia. See Pet. 18. The language of 42 U.S.C. 6297(a)(1), however, does not support petitioners' view that the preemp tion analysis turns on the nature or purposes of the underly ing state regulatory scheme. In Section 6297(a)(1), the phrase "with respect to any measure of energy consumption or water use of any covered product" does not modify "State regula tion." Rather, the phrase modifies "information." The word ing of Section 6297(a)(1) thus indicates that its preemptive effect depends upon the nature of the information required to be disclosed, not on the purposes for which disclosure is re quired. Standing alone, a product marking that identifies the manufacturer, model number, and date of manufacture of a covered appliance communicates nothing about the amount of energy or water that will be consumed in the product's opera tion. The data mandated by Cal. Code Regs. tit. 20, § 1607(b) and (c) therefore do not constitute "information with respect to any measure of energy consumption or water use."

3. The final state regulatory provision at issue here re quires that energy-performance information be marked on certain industrial and commercial appliances for which no federal labeling requirements exist. See Cal. Code Regs. tit. 20, § 1607(d)(2); Pet. App. 17a. The court of appeals held that those state regulatory provisions are not preempted because, there being no federal labeling requirement in effect for those products, the California regulatory scheme "does not require the disclosure of information that is 'other than information required' under federal law." Id. at 16a. Petitioners chal lenge that holding, contending (Pet. 19) that because the fed eral labeling regulations do not yet require any information concerning those appliances to be disclosed, the state require ment necessarily mandates a "disclosure of information" that is "other than information required" by the EPCA. See Pet. App. 22a (Noonan, J., dissenting) ("Where there are no fed eral regulations on the subject because the DOE has not pro mulgated any regulations, then any state regulations are 'other than' those federally required."). Moreover, Congress's deletion in 1987 of statutory language that had unambiguously limited Section 6297(a)(1)'s preemptive effect to situations in which a federal labeling rule existed (see pp. 10-11, supra) might suggest that no such limitation was intended.

There is some force to those points. On the other hand, Section 6297(a)(1)(B)'s reference to information "other than information required under" federal law might be read as making the existence of an applicable federal regulation under which disclosure of information in labeling is required a pre condition for preemption to be triggered for the particular product, and as manifesting Congress's intent that state law will be preempted only when such regulations exist. In any event, this aspect of the Ninth Circuit's decision does not war rant further review. Petitioners identify no other judicial decision that has construed 42 U.S.C. 6297(a)(1), let alone a decision that has applied Section 6297(a)(1) to appliances for which no federal labeling rule exists. And because petitioners identify no other State that has adopted regulations compara ble to Cal. Code Regs. tit. 20, § 1607(d)(2), the court of ap peals' ruling does not oblige petitioners to comply with incon sistent marking requirements in different parts of the coun try. There is consequently no sound reason to regard the narrow question presented here as an issue of substantial legal or practical importance.

Until the EPCA's amendment by the NAECA in 1987, the preemptive effect of Section 6297(a)(1) was unambiguously limited to covered products for which a federal labeling rule existed. See pp. 10-11, 13, supra. Whatever the impact of the 1987 amendment on the ultimate preemption question, there is no suggestion in the legislative history that the amendment responded to significant practical concerns. To the contrary, the 1987 Senate Report blandly described the amended ver sion of Section 6297(a)(1) as "essentially restat[ing] existing law." S. Rep. No. 6, supra, at 9; see p. 11, supra. Even as suming, arguendo, that the actual effect (whether intended or unintended) of the NAECA amendments was to expand Sec tion 6297(a)(1)'s preemptive scope to encompass appliances for which no federal labeling rule has been promulgated, the background of that modification reinforces the conclusion that the application of Cal. Code Regs. tit. 20, § 1607(d)(2) does not present a question of such substantial importance as to merit the Court's review.

B. The Court Of Appeals' Decision Is Consistent With Engine Manufacturers Association v. South Coast Air Quality Man agement District, 541 U.S. 246 (2004)

Contrary to petitioners' contention (Pet. 11-14), the court of appeals' ruling in this case does not conflict with this Court's recent decision in Engine Manufacturers Ass'n v. South Coast Air Quality Management District, 541 U.S. 246 (2004) (EMA). The federal statute that was given preemptive effect in EMA, and the state-law requirements that were found to be preempted, are wholly distinct from the federal and state laws at issue here. Far from being "indistinguish able" (Pet. 13), the two cases have little in common beyond the facts that both arose in the Ninth Circuit and that both in volved the construction of express preemption provisions.

Petitioners contend (Pet. 11, 13) that the manner in which the court of appeals applied a presumption against preemp tion reflected an "interpretive methodology" that this Court in EMA rejected. This Court in EMA, however, did not either invoke or reject a presumption against preemption or em brace any particular articulation of such a presumption; it simply held that, in light of the clarity of the relevant statu tory text, the determination whether such a presumption ap plied would "demonstrably make[] no difference to resolution of the principal question" in the case. 541 U.S. at 256. Nor was the court of appeals' methodology in this case inconsis tent with EMA in other respects. To the contrary, the court below carefully analyzed the relevant EPCA language, noting, inter alia, that the phrase "disclosure of information" should be given the same meaning in different parts of the statute. Pet. App. 7a-8a. The Ninth Circuit's reliance on that interpre tive principle was fully consistent with EMA, in which this Court observed that the meaning of the term "standard" in the preemption provision of the Clean Air Act (CAA) was elucidated by "Congress's use of the term in another portion of the CAA." 541 U.S. at 254.

C. The Court Of Appeals' Application Of A Presumption Against Preemption Of State Law Raises No Issue That In dependently Warrants This Court's Review

Petitioners urge this Court to grant review to clarify the circumstances under which courts should apply a presumption against preemption of state law. See Pet. 14-21. That claim is misconceived.

1. As petitioners recognize, this Court's decisions make clear that a presumption against preemption (i) applies in "a field which the States have traditionally occupied," Pet. 14 (quoting Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 347 (2001)), and (ii) does not apply "when the State regu lates in an area where there has been a history of significant federal presence," Pet. 15 (quoting United States v. Locke, 529 U.S. 89, 108 (2000)). Thus, despite petitioners' extrava gant assertion (Reply Br. 3 n.1) that the question presented here "potentially governs the preemptive effect of every fed eral statute," the ultimate thrust of petitioners' argument is much more modest. Petitioners' core contention is that re view is warranted to consider the applicability of a presump tion against preemption when Congress legislates in a field that has not traditionally been regulated either by the federal government or by the States.

In the first place, it is not clear that abstract differences in the formulation or application of a presumption against preemption would justify plenary review in the absence of a concrete split in authority on the preemptive force of a partic ular statute. This Court has generally made its statements about a presumption for or against preemption-much as it has made statements about other principles of statutory construction-in the context of cases that independently mer ited the Court's review. When the lower courts have dis agreed about the preemptive force of a particular federal stat ute, that disagreement may provide a basis for clarifying the relevant presumption in a concrete context in which courts have come to differing conclusions. But any difference be tween the formulation of the presumption in one setting and its articulation in a discrete statutory context does not merit the Court's review.

2. Even assuming, arguendo, that the EPCA operates in a field that has traditionally been free from both state and federal regulation (compare Pet. 15 with Br. in Opp. 7), the question of what presumption applies in that context does not merit this Court's review. A number of the Court's decisions have treated a tradition of state regulation in the relevant field as a factor warranting a presumption against preemp tion. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). The Court has not held, however, that the absence of such a tradition would necessarily render such a presumption inappropriate.

Since issuing its decision in Medtronic, this Court has identified two related settings in which there is no presump tion against preemption. The first consists of areas, such as the regulation of national and international maritime com merce, "where there has been a history of significant federal presence." Locke, 529 U.S. at 108. The second involves state attempts to police the "relationship between a federal agency and the entity it regulates." Buckman, 531 U.S. at 347 (find ing state-law claim for fraud on the Food and Drug Adminis tration to be preempted). The instant case does not involve either of those situations.

This Court's refusal to apply a presumption against pre emption when States regulate matters that are "inherently federal in character" (Buckman, 531 U.S. at 347) does not necessarily suggest that there is no such presumption in fields lacking any tradition of state or federal regulation. Most sig nificantly, petitioners identify no case in which the Court has declined to apply a presumption against preemption solely on the ground that the relevant sphere of conduct had not tradi tionally been regulated by the States. Absent any decision by this Court actually adopting the rule that petitioners advo cate, there is no basis for petitioners' contention that the court of appeals' reliance on a presumption against preemp tion conflicts with the Court's precedents.

3. Petitioners' claim of a circuit conflict is mistaken for essentially the same reason. The court of appeals decisions on which petitioners rely fall into two basic categories. Some of those decisions hold, in accordance with this Court's decision in Locke, that a presumption against preemption does not apply in an area where there has been a history of significant federal presence.5 Because petitioners do not contend that the instant case implicates a longstanding tradition of federal regulation, those decisions are inapposite.

Other decisions cited by petitioners simply apply a pre sumption against preemption in areas traditionally regulated by the States.6 Contrary to petitioners' suggestions (Pet. 16; Reply Br. 4), the appellate courts' consistent recognition that a tradition of state regulation supports application of a pre sumption against preemption does not logically imply that such a tradition is a necessary condition for applying such a presumption.7 Because petitioners identify no case in which a court of appeals has declined to apply a presumption against preemption based solely on the absence of a longstanding state regulatory presence in the relevant field, petitioners' claim of a circuit conflict is unfounded.

Moreover, as explained above (see pp. 6-14, supra), the court of appeals' decision concerning the preemptive scope of Section 6297(a)(1) does not warrant review. This case there fore would not in any event be an appropriate vehicle for con sidering any variation in the formulation or application of a presumption against preemption in different settings.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General
JONATHAN LEVY
Attorney

MAY 2006

1 Pursuant to 42 U.S.C. 6316, the provisions of Section 6297 govern the preemption analysis in cases involving state testing and labeling re quirements for commercial and industrial appliances.

2 In the courts below, petitioners also asserted a preemption challenge to Cal. Code Regs. tit. 20, § 1607(d)(1) (Pet. App. 70a), which applies to specified appliances and states that the marking required by an FTC regulation, 16 C.F.R. Pt. 305, must be displayed on all units. The court of appeals held that Section 1607(d)(1) is not preempted, see Pet. App. 16a- 17a, and petitioners do not appear to contest that holding.

3 Respondents' brief in the court of appeals explained that, under California's building code,

builders can get "extra credit" for installing equipment of more-than- minimum specifications (e.g., a highly efficient air conditioner), and then "trade off" the extra credit by using more energy in another part of the building (e.g., reducing the amount of insulation in the ceiling or increasing the number or size of windows) in a way that reduces costs or makes the building more attractive to buyers. If states were unable to require manufacturers to submit relevant data, it would be very difficult to make the calculations necessary to implement the trade-offs.

Resp. C.A. Br. 30-31 (citations omitted).

4 The preemption theory hypothesized by the State of New York in its comments during the 1989 FTC rulemaking was significantly narrower than petitioners' own theory. New York expressed concern that States might be preempted from requiring lamp-ballast manufacturers to report energy- efficiency data beyond the information that manufacturers were required to submit to the FTC pursuant to 42 U.S.C. 6296 and 16 C.F.R. 305.8. See 54 Fed. Reg. at 28,032. Under petitioners' reading of the statute, by con trast, States could not require the submission of energy-efficiency informa tion beyond what is required to be included on the product label under 42 U.S.C. 6294 and 16 C.F.R. 305.11. During the 1989 rulemaking, the FTC stated that, because the Commission was amending 16 C.F.R. 305.8 to require ballast manufacturers to submit data to the FTC, the preemption issue raised by New York was "largely moot." 54 Fed. Reg. at 28,033. If petitioners' preemption theory were correct, however, the requirement that such data be provided to the FTC would not eliminate the barrier to a com parable state data-submission requirement.

5 See UPS, Inc. v. Flores-Galarza, 318 F.3d 323, 336 (1st Cir. 2003) ("No presumption against preemption is appropriate in this case because of Congress's significant-and undisputed-presence in the field of air trans portation."); Wachovia Bank, N.A. v. Burke, 414 F.3d 305, 314 (2d Cir. 2005) (declining to apply a presumption against preemption in case involv ing federally chartered banks on the ground that regulation of such banks has historically been the province of the federal government), petition for cert. pending, No. 05-431 (filed Sept. 30, 2005); Forest Park II v. Hadley, 336 F.3d 724, 728-730, 732 (8th Cir. 2003) (detailing the decades-long history of federal affordable-housing loans and declining to apply a presumption against preemption to a state law that purportedly "regulate[d] or res trict[ed] the actions of the federal government under its own federal pro gram" with respect to such a loan).

6 See Cliff v. Payco General Am. Credits, Inc., 363 F.3d 1113, 1125 (11th Cir. 2004) (applying a presumption against preemption to a state law involv ing consumer protection, "a field traditionally regulated by the states"); Massachusetts v. United States Dep't of Transp., 93 F.3d 890, 894 (D.C. Cir. 1996) (applying a presumption against preemption to a state law regulating "how waste may be picked up or dropped off in a state," which "must be thought an area of traditional state control"); Bronco Wine Co. v. Jolly, 95 P.3d 422, 429 (Cal. 2004) ("After extensively reviewing the history of state regulation of beverage and wine labels prior to Congress's adoption of the FAA Act in 1935-a history that reveals substantial state involvement and very little federal regulation-we conclude that a presumption against pre emption does indeed apply in this case."), cert. denied, 544 U.S. 922 (2005).

7 In UPS, the First Circuit stated in dictum that a presumption against preemption "only arises * * * if Congress legislates in a field traditionally occupied by the states." 318 F.3d at 336. The First Circuit further ex plained, however, that "[n]o presumption against preemption is appropriate in this case because of Congress's significant-and undisputed- presence in the field of air transportation." Ibid. That rationale is fully consistent with the court of appeals' decision in the instant case.