AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 213

RESPONSE re 202 MOTION for Summary Judgment filed by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC.. (Attachments: # 1 Plaintiffs' Third Supplemental Statement of Material Facts, # 2 Declaration of Thomas O'Brien, # 3 Declaration of Jane W. Wise, # 4 Exhibit 174, # 5 Exhibit 175, # 6 Exhibit 176, # 7 Exhibit 177 (Part 1), # 8 Exhibit 177 (Part 2), # 9 Exhibit 177 (Part 3), # 10 Exhibit 178, # 11 Exhibit 179, # 12 Exhibit 180, # 13 Exhibit 181, # 14 Exhibit 182, # 15 Exhibit 183, # 16 Exhibit 184, # 17 Exhibit 185, # 18 Exhibit 186, # 19 Plaintiffs' Response to Defendant's Statement of Disputed Facts (Redacted), # 20 Plaintiffs' Statement of Disputed Facts and Objections, # 21 Plaintiffs' Response to Defendant's Evidentiary Objections, # 22 Plaintiffs' Opposition to Defendant's Request for Judicial Notice)(Fee, J.)

Exhibit 186

ASHRAE
90.1 (2010)

Standard

C.F.R Reference
 20 C.F.R. §
905.110 (2015)
State Law
 None

Authorities
Identified by
PRO

Page 1 of 4

PRO’s Citation of “Text of Incorporation”

ASHRAE Response to PRO’s Ex. 89

Moreover, PRO’s citation to “text of incorporation”
contains a non-substantive list of standards incorporated by
reference. The actual substantive part of the regulation that
mentions this standard, merely says that Standard 90.1 is
one of several standards a government actor can choose to
follow in order to receive available funding, thus it is not a
“necessary” form of compliance with any legal obligation.
See 20 C.F.R. § 905.312(b)(1) (2015)

To provide one example, ASHRAE 90.1 (2010) contains
tables that provide general information on the natural
climate found in Canada and other foreign nations that may
be useful to a reader trying to apply Standards 90.1 in those
locations. Id. at ¶ 75. The statute PRO cites addresses
funding for government housing projects in the United
States. 20 C.F.R. § 905.312(b)(1) (2015). So foreign
climate data is immaterial, and those parts of the standards
could not possible be “necessary” to reproduce.

PRO does not do any analysis of the cited federal
regulation that would illuminate which, if any, portions of
the standard it would consider “necessary to comply with
[a] legal duty.” ASTM II, 896 F.3d at 450. As explained in
Plaintiffs’ Statement of Material Facts filed in support of
its recent motion, Standard 90.1(2010) and the other
ASHRAE standards at issue all contain an extensive
amount of non-essential and non-prescriptive language,
including a forward, informative appendixes, and
informational notes and policy statements. 2d. Supp. SMF
at ¶¶ 70-76.

ASHRAE Response

ASHRAE
90.1 (2007)

Standard

C.F.R Reference
 10 C.F.R. §
433.3 (2013)
State Law
 None

Authorities
Identified by
PRO

Page 2 of 4

PRO’s Citation of “Text of Incorporation”

ASHRAE Response to PRO’s Ex. 89

Moreover, the regulation in question speaks only to a
requirement placed on Federal agencies when building new
high-rise buildings that they exceed energy targets set out
in the standard. It does not impose obligations on private
actors.

To provide one example, ASHRAE 90.1 (2007) contains
tables that provide general information on the natural
climate found in Canada and other foreign nations that may
be useful to a reader trying to apply Standards 90.1 in those
locations. Id. at ¶ 75. The statute PRO cites addresses new
buildings built by Federal Government agencies. So
foreign climate data is immaterial, and those parts of the
standards could not possible be “necessary” to reproduce.

PRO does not do any analysis of the cited federal
regulation that would illuminate which, if any, portions of
the standard it would consider “necessary to comply with
[a] legal duty.” ASTM II, 896 F.3d at 450. As explained in
Plaintiffs’ Statement of Material Facts filed in support of
its recent motion, Standard 90.1(2007) and the other
ASHRAE standards at issue all contain an extensive
amount of non-essential and non-prescriptive language,
including a forward, informative appendixes, and
informational notes and policy statements. 2d. Supp. SMF
at ¶¶ 70-76.

ASHRAE Response

ASHRAE
90.1 (2004)

Standard

C.F.R Reference
 10 C.F.R. §
433.3 (2013)
State Law
 None

Authorities
Identified by
PRO

Page 3 of 4

PRO’s Citation of “Text of Incorporation”

ASHRAE Response to PRO’s Ex. 89

Moreover, the regulation in question speaks only to a
requirement placed on Federal agencies when building new
high-rise buildings that they exceed energy targets set out
in the standard. It does not impose obligations on private
actors.

To provide one example, ASHRAE 90.1 (2004) contains
tables that provide general information on the natural
climate found in Canada and other foreign nations that may
be useful to a reader trying to apply Standards 90.1 in those
locations. Id. at ¶ 75. The statute PRO cites addresses new
buildings built by Federal Government agencies. So
foreign climate data is immaterial, and those parts of the
standards could not possible be “necessary” to reproduce.

PRO does not do any analysis of the cited federal
regulation that would illuminate which, if any, portions of
the standard it would consider “necessary to comply with
[a] legal duty.” ASTM II, 896 F.3d at 450. As explained in
Plaintiffs’ Statement of Material Facts filed in support of
its recent motion, Standard 90.1(2004) and the other
ASHRAE standards at issue all contain an extensive
amount of non-essential and non-prescriptive language,
including a forward, informative appendixes, and
informational notes and policy statements. 2d. Supp. SMF
at ¶¶ 70-76.

ASHRAE Response

ASHRAE
Handbook
(1993)

Standard

C.F.R Reference
 10 C.F.R. §
434.701 (2011)
State Law
 None

Authorities
Identified by
PRO

Page 4 of 4

PRO’s Citation of “Text of Incorporation”

ASHRAE Response to PRO’s Ex. 89

The handbook is, in this instance, incorporated in order to
aid in understanding of other ASHRAE standards cited in
the same regulations. The handbook addresses multiple
ASHRAE standards, not just those cited in this section of
the C.F.R., and the text pertaining to other (nonreferenced) ASHRAE standards is plainly not “necessary.”

PRO does not do any analysis of the cited federal
regulation that would illuminate which, if any, portions of
the standard it would consider “necessary to comply with
[a] legal duty.” ASTM II, 896 F.3d at 450.

ASHRAE Response