Lessons for today: Never bet on National Football League games and never bet on the U.S. judicial system.

At the start of this NFL season, did you really think it would be Carolina and New England in next weekend's Super Bowl? Not me. About the only sure bet was that the Detroit Lions would not be present, but that's a no-brainer.

The same applies to the courts. Just when air conditioning manufacturers thought the standard for all central air conditioners and heat pumps manufactured after Jan. 26, 2006, had to meet a 12 SEER (Seasonal Energy Efficiency Ratio) standard, a recent federal appeals court ruling threw a monkey wrench into the works. (See full story on page 9.)

In a nutshell, the U.S. Appeals Court for the Second Circuit in New York ruled that the U.S. Department of Energy (DOE) did not follow proper procedures when it adopted its 12 SEER standard in May 2002. As a result of this most recent ruling, the 13 SEER standard - one of the last acts passed by the Clinton administration - will go into effect in 2006, unless the appeals court decision is challenged in court and possibly reversed.

What's the next move? Any bets?

One Side ...

The Air-Conditioning and Refrigeration Institute (ARI) has indicated that it is considering its legal options.

"We are disappointed that such an important decision affecting homeowners in all 50 states should be determined on process rather than on the impact of the regulation on millions of people," said ARI President William Sutton. "We will take some time to review the court's decision with counsel and then make a decision on what options best serve consumers and energy conservation."

He added, "Our options include requesting further review of the Second Circuit's decision and pursuing our challenge of the 13 SEER rule before the Fourth Circuit Court of Appeals. Unlike the Second Circuit's decision, which was based on procedural grounds, the Fourth Circuit would be reviewing DOE regulations to determine whether the standard was economically justified for consumers and manufacturers."

Of course, the DOE is weighing its next move, too. Whether to file an appeal is up to the Justice Department, said a department spokes-person. Meanwhile, the Competitive

Enterprise Institute (CEI), a nonprofit, nonpartisan public policy group in Washington "dedicated to the principles of free enterprise and limited government," believes the less stringent 20-percent in-crease is better for consumers.

"Any consumer who wants to buy an ultra-efficient air conditioner is free to do so with or without strict regulations," said Ben Lieberman, senior policy analyst at CEI. "The only thing the Clinton-era regulation does is force this choice on everyone, even if it's a bad choice."

... And The Other Side

Other groups are elated. The Natural Resources Defense Council (NRDC) claimed that the DOE had not followed proper procedures in the adoption of a 12 SEER rule. The court agreed, noting that the "DOE failed to effect a valid amendment of the original standards' [13 SEER] effective date, and as a consequence was thereafter prohibited from amending those standards downward."

"This is a vindication of good energy policy, good environmental policy" and shows that a new administration "can't simply ignore" rules that already have been put in place, said New York Attorney General Eliot Spitzer.

In all, 10 states and several consumer groups joined NRDC in its lawsuit. The Alliance to Save Energy, a private advocacy group, said the higher efficiency standard will cut consumer electricity bills by as much as $1.1 billion a year by 2020, when the more efficient units would be expected to be in wide use.

For now, NRDC and its troops are winning the battle, but here's betting ARI and other advocates will not just sit on their hands.

At this week's International Air-Conditioning, Heating, Refrigerating Exposition (AHR Expo), it will be interesting to find out what vendors think about the latest development in court. The News will be asking vendors and exhibitors for their opinions, as well as contractors walking the aisles. We'll let you know what the consensus is.

Is it fighting time or time to concede? Any bets?

Mark Skaer is editor-in-chief. He can be reached at 248-244-6446, 248-362-0317 (fax), or markskaer@achrnews.com.

Publication date: 01/26/2004