Amicus Curiae Brief — American Gas Association, et al., Petitioners v. Department of Energy, et al.

No. 25-879

IN THE

AMERICAN GAS ASSOCIATION et al.,

Petitioners,

v.

DEPARTMENT OF ENERGY et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the D.C. Circuit

BRIEF FOR HEATING, AIR-CONDITIONING &

REFRIGERATION DISTRIBUTORS

INTERNATIONAL, PLUMBING-HEATINGCOOLING CONTRACTORS—NATIONAL

ASSOCIATION, AND NATURAL GAS

ASSOCIATION OF GEORGIA AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

Noelle Chung

REICHMAN JORGENSEN

LEHMAN & FELDBERG LLP

100 Marine Pkwy., Suite 300

Redwood Shores, CA 94065

Sarah O. Jorgensen

Brian C. Baran

Counsel of Record

REICHMAN JORGENSEN

LEHMAN & FELDBERG LLP

1909 K St. NW, Suite 800

Washington, DC 20006

(202) 894-7310

bbaran@reichmanjorgensen.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

STATEMENT OF INTEREST ....................................1

SUMMARY OF ARGUMENT .....................................4

ARGUMENT ................................................................7

I.

The decision below undermines consumers’

ability to choose among a range of affordable,

reliable appliances that seamlessly replace

existing appliances. ...............................................8

II. EPCA’s text and structure establish that

Congress’s protection of consumer choice

includes installation-related features. ...............13

A. Non-condensing technology readily

satisfies EPCA’s broad protection for

“performance characteristics.” .....................13

B. The Department’s contrary view is

inconsistent with the statute and the

agency’s own longstanding practice. ............17

III. The interpretation the D.C. Circuit approved

will reach well beyond this case, removing

congressional constraints on the

Department’s standard-setting power. ..............24

CONCLUSION ..........................................................26

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Cal. Rest. Ass’n v. City of Berkeley,

89 F.4th 1094 (9th Cir. 2024) .............................. 14

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) .......................................... 23

Statutes

Energy Policy and Conservation Act,

42 U.S.C. §§6201 et seq. .... 4-7, 13-14, 16, 21, 23-24

§6201 ....................................................................... 7

§6201(5) .................................................................. 7

§§6291-6309 ............................................................ 7

§6295(m)(1) ............................................................. 7

§6295(o)(2) ........................................................ 7, 23

§6295(o)(2)(B) ....................................................... 16

§6295(o)(2)(B)(i)(IV) ............................................. 16

§6295(o)(3) .............................................................. 7

§6295(o)(4) ....................................... 8, 13-14, 17, 23

§6295(q) ................................................................ 19

§6295(q)(1) .................................................. 8, 15, 23

§6295(q)(1)(A) ........................................... 14, 20, 22

§6295(q)(1)(B) ........................................... 14, 16, 19

§6297(d) ................................................................ 15

§6297(d)(3) ............................................................ 15

§6297(d)(3)(C) ....................................................... 15

§6297(d)(4) ........................................................ 8, 15

iii

§§6311-6317 ............................................................ 7

§6313(a)(4) ............................................................ 25

§6313(a)(6)(B)(iii)(II)(aa) ...................... 8, 13, 15, 17

§6316(b)(2)(D) ....................................................... 15

Joint Resolution of May 9, 2025,

Pub. L. No. 119-6, 139 Stat. 49 ....................... 24-25

Rules and Regulations

10 C.F.R. §430.32(e)(1)(ii) ......................................... 22

10 C.F.R. §430.32(h)(3) .............................................. 22

66 Fed. Reg. 4474 (Jan. 17, 2001) ............................. 22

73 Fed. Reg. 58772 (Oct. 7, 2008) ............................. 22

76 Fed. Reg. 22454 (April 21, 2011) .......................... 21

76 Fed. Reg. 37408 (June 27, 2011) .......................... 22

86 Fed. Reg. 4776 (Jan. 15, 2021) .................... 9-11, 23

86 Fed. Reg. 73947 (Dec. 29, 2021) ........... 4, 20, 22, 24

88 Fed. Reg. 69686 (Oct. 6, 2023) ......................... 4, 12

88 Fed. Reg. 87502 (Dec. 18, 2023) .................. 4, 10-12

89 Fed. Reg. 105188 (Dec. 26, 2024) ......................... 25

Other Authorities

Am. Gas Ass’n, Building for Efficiency: Home

Appliance Cost and Emissions Comparison

(2024), https://www.aga.org/wp-content

/uploads/2025/01/AGA-Report_2024

_Building-for-Efficiency-08-MV.pdf....................... 3

iv

Dep’t of Energy, Doc. No. EERE-2021-BTSTD-0027, Commercial Water Heater

National Impact Analysis (NIA)

Spreadsheet (Final Rule) (July 28, 2023),

https://www.regulations.gov/document

/EERE-2021-BT-STD-0027-0041 ......................... 12

H.R. Rep. No. 100-11 (1987) .......................... 14, 20, 23

Kevin Dunn, Wash. Gas Light, Workshop

Presentation to Department of Energy

(Oct. 9, 2014), https://www.energy.gov

/documents/october-9th-workshop

-presentation-kevin-dunnpdf ............................ 9-11

Oxford English Dictionary (2d ed. 1989)

Characteristic ....................................................... 15

Feature .................................................................. 19

Performance .......................................................... 15

Utility .................................................................... 18

Patterson-Kelley, Understanding Commercial

Condensing vs. Non-Condensing Appliances,

Patterson-Kelley Sols. Blog (Feb. 17, 2025),

https://info.pattersonkelley.com/blog

/commercial-condensing-vs.-non-condensing

-appliances .............................................................. 9

STATEMENT OF INTEREST 1

Amici are associations representing individuals

and businesses with an interest in preserving consumers’ and builders’ access to the non-condensing

appliances that the Department of Energy’s new energy efficiency standards would eliminate. Millions of

Americans rely on these appliances, which often cannot be replaced with condensing alternatives without

renovating buildings that were designed for non-condensing appliances.

Heating, Air-Conditioning & Refrigeration

Distributors International (HARDI) is a nonprofit

trade association representing and providing training

for more than 1,150 member companies operating in

the wholesale heating, ventilation, air-conditioning,

and refrigeration (HVACR) industries across the country. This includes 570 wholesalers and distributors

with 1,300 branch locations, as well as suppliers, manufacturers, and service vendors. About 80% of

HARDI’s members are small businesses. HARDI’s

members manufacture, distribute, and sell (and its

members’ customers and contractors install and service) natural gas, electric, and dual-fuel HVACR

equipment, parts, and supplies in all fifty states. Together, HARDI’s members form wholesale channels

serving as critical links in the efficient and reliable

1 All parties were timely notified of the filing of this brief.

No counsel for any party authored this brief in whole or in part,

and no entity or person, aside from amici curiae and their

counsel, made any monetary contribution toward its preparation

or submission. See Sup. Ct. R. 37.6.

2

distribution of HVACR products and systems that end

users choose for their homes and businesses.

HARDI is concerned that its members, their related contractors, and the ultimate consumers—as

well as the safety, welfare, and standard of living of all

Americans—will be harmed by federal regulations

that eliminate commonly available appliances, constraining consumer choice and taking affordable and

reliable options off the market.

The Plumbing-Heating-Cooling Contractors—

National Association (PHCC) is a nonprofit association representing about 3,000 plumbing, heating, and

cooling contractors—many of them small businesses—

across the United States. PHCC’s members install and

service new and replacement plumbing and HVAC

products. For many members, much of their business

derives from residential gas-fired appliance repair or

replacement. And it is often PHCC’s members who

will find themselves having to explain to residential

consumers the additional burdens and costs the

Department’s rules will impose, which can include

renovations and forced switching to alternate fuel

sources such as electricity.

PHCC has been following the residential gas furnace rulemaking since 2012. PHCC has long

maintained that the ability of a non-condensing gas

furnace to use a building’s existing venting system is

a valuable and desired feature that provides significant utility to consumers, especially in replacement

situations. PHCC’s members know from experience

that replacing one non-condensing gas product with

another is a cost-effective solution for homeowners

who typically have not budgeted for substantial HVAC

3

replacement, redesign, and renovation costs. PHCC is

concerned that by taking away that solution, the

Department’s rules will harm its members and their

customers.

The Natural Gas Association of Georgia is a nonprofit trade association representing more than fifty

member companies that directly and indirectly serve

natural gas customers in Georgia. Members include

interstate pipeline operators, local distribution companies, municipal gas providers, natural gas

marketers, and vendors and associated businesses

that supply those companies. Together, the association’s members make up the various channels that

deliver natural gas to residential, business, and manufacturing customers in the state.

The Natural Gas Association of Georgia is concerned that its members and their customers will be

harmed by federal regulations forcing those who need

to replace their non-condensing appliances to either

install new ventilation systems or switch away from

their fuel of choice. Customers who avoid the upfront

cost of renovations by switching to electricity face increased costs in the long run compared to sticking with

non-condensing gas appliances. 2 Besides, it is far more

efficient to use gas directly than to convert it to electricity to power an appliance. 3 So in places like

2 Am. Gas Ass’n, Building for Efficiency: Home Appliance Cost

and Emissions Comparison 39 (2024), https://www.aga.org/wp

-content/uploads/2025/01/AGA-Report_2024_Building-for-Efficiency

-08-MV.pdf (comparing residential gas and electricity prices).

3 See id. at 18-19 (reporting that the natural gas system’s

“cumulative efficiency—from the wellhead to the residential

meter—is 92%,” compared to 40% for gas-based electricity).

4

Georgia, where natural gas fuels about half the state’s

electricity (and growing), switching fuels likely means

using more energy.

SUMMARY OF ARGUMENT

The decision below and the Department of Energy

rules it approved shake the foundations of the national

appliance standards program Congress established in

the Energy Policy and Conservation Act (EPCA), 42

U.S.C. §§6201 et seq. The Department’s new standards

for gas furnaces and commercial water heaters, along

with the December 2021 Interpretive Rule that serves

as their legal underpinning, represent a sea change for

the appliance industry, builders, and consumers. 4

There is no debate that the rules will make noncondensing furnaces and commercial water heaters

unavailable. Nor is there any dispute that non-condensing and condensing appliances work differently in

ways that affect where and how they can be installed;

they differ in the necessary venting structure and material, the need for condensate management, related

space and location requirements, and the ability to integrate with existing buildings without modifications.

The only question is whether these distinct installation-related attributes are performance characteristics or features that Congress prohibited the

Department from making unavailable when setting

4 Energy Conservation Standards for Consumer Furnaces,

88 Fed. Reg. 87502 (Dec. 18, 2023); Energy Conservation

Standards for Commercial Water Heating Equipment, 88 Fed.

Reg. 69686 (Oct. 6, 2023); Energy Conservation Standards for

Residential Furnaces and Commercial Water Heaters, 86 Fed.

Reg. 73947 (Dec. 29, 2021) (December 2021 Interpretive Rule).

5

standards. The answer, based on the plain text, statutory context, and the Department’s own prior views, is

yes.

As amici well know from their experience in this

industry, the ability to choose non-condensing gas furnaces and commercial water heaters matters to

builders and consumers in the real world. Millions of

homes and buildings were designed for and built

around non-condensing appliances. Condensing appliances require fundamentally different venting

structures and material, and they need piping and

drainage to manage the liquid condensates they produce. These core differences mean that forced

replacements of non-condensing appliances with condensing ones will often be expensive and complex,

requiring substantial renovations rather than a simple like-for-like replacement. Seamless replacements

with non-condensing appliances provide real utility to

consumers. They mean less money spent renovating,

less disruption, and less time without heat or hot

water. And make no mistake: Replacements are the

norm, not the exception; they make up about 80% of

the market for the affected products.

Recognizing that different buildings accommodate different types and sizes of appliances, EPCA

strikes a balance between pursuing energy conservation and protecting consumer choice. To that end,

Congress expressly prohibited the Department from

using its standard-setting authority in a way that

would take generally available “performance characteristics” off the market. Non-condensing technology

fits comfortably within that term’s ordinary meaning,

which encompasses appliances’ distinguishing capa-

6

bilities. Non-condensing technology allows appliances

to use the kind of venting already installed in millions

of buildings, and it avoids the need for piping to manage condensates. The statutory context further

reinforces that Congress’s concern for consumer choice

reaches installation-related attributes like these.

The D.C. Circuit majority’s and the Department’s

contrary view—which takes an undisputedly broad

term and narrows it to an appliance’s raw output—

cannot be squared with EPCA’s text or structure.

Which is perhaps why the Department’s prior practice

contradicts its new narrow interpretation. In standard

after standard, the Department has protected installation-related attributes from unavailability because

that is what the statute requires.

If allowed to stand, the decision below will not just

eliminate non-condensing gas furnaces and commercial water heaters, but also give the Department free

rein to remake the appliance industry, running roughshod over Congress’s carefully crafted protections for

consumer choice. Far from authorizing such a major

change, Congress unambiguously prohibited it. Rather than pursuing energy conservation at all costs,

Congress chose throughout EPCA to preserve consumer choice, too. It chose to gradually improve

appliances’ efficiency, not regulate them out of existence. Because the Department’s rules and the decision

below contravene that choice as expressed in EPCA’s

plain text, this Court should grant certiorari and

reverse.

7

ARGUMENT

The Energy Policy and Conservation Act establishes a sweeping national energy policy. See, e.g., 42

U.S.C. §6201 (listing purposes). 5 One component of

that policy is EPCA’s energy conservation program for

appliances, which address both consumer products,

§§6291-6309, and industrial equipment, §§6311-6317.

One way to achieve the goal of “improved energy

efficiency of … major appliances,” §6201(5), might

have been to set the most aggressive standards the

economy and technology could bear, even if that came

at the cost of consumer choice. That is not the approach Congress chose.

Congress instead designed a program that embraced both conservation and choice: Taking generally

available appliance types and features as a given,

Congress opted for standards that would incrementally increase energy efficiency (or reduce energy use)

for each kind of appliance. It tasked the Department

of Energy with designing (and periodically updating)

standards “to achieve the maximum improvement in

energy efficiency” that “is technologically feasible and

economically justified.” §6295(o)(2); accord §6295(o)(3);

see also §6295(m)(1) (requiring the Department to consider amendments every six years). And it protected

consumer choice by prohibiting the Department from

setting standards that would make unavailable “performance characteristics” (including “reliability,”

“features,” “sizes,” “capacities,” and “volumes”) that

were generally available at the time of the standard.

5 All further statutory references are to 42 U.S.C. unless

otherwise indicated.

8

§§6295(o)(4), 6313(a)(6)(B)(iii)(II)(aa); accord §6297(d)(4)

(same restriction when waiving preemption for state

or local standards). Likewise, Congress required

separate standards for appliances that use different

kinds of energy or have distinct “capacity or other

performance-related feature[s]” that warrant higher

or lower standards. §6295(q)(1).

The decision below nevertheless signed off on the

Department’s asserted power to eliminate entire

groups of non-condensing appliances just because

their distinguishing features affect installation, not

the appliances’ basic output once successfully installed. That decision undermines consumer choice, is

contrary to the statutory text and objectives, and will

have far-reaching consequences.

I.

The decision below undermines consumers’

ability to choose among a range of affordable,

reliable appliances that seamlessly replace

existing appliances.

The ability to choose non-condensing gas furnaces

and commercial water heaters matters to builders and

consumers in the real world. There is no dispute that

these appliances are installed in millions of buildings

today. Pet.App.50a. And there is no dispute that the

challenged rules will take these products off the market. Pet.App.8a, 57a. The decision below turned solely

on whether non-condensing technology provides utility to consumers who wish to use these products.

Pet.App.15a-17a.

It does—as amici well know from their experience

in this industry. Practical differences between condensing and non-condensing versions of the same

appliance run the gamut from pricing to energy effi-

9

ciency to installation and suitability for certain

buildings.

The root of these practical differences is a difference in how non-condensing and condensing

appliances work. 6 Condensing appliances have a second heat exchanger used to capture heat from exhaust

gases before they are vented, causing the gases to cool

down enough for water vapor to condense into liquid—

hence the name. Pet.App.6a-7a. As a result, condensing appliances are more energy efficient than noncondensing versions, leading to greater energy savings

and lower energy costs over the life of the appliance.

See Pet.App.47a-48a; Patterson-Kelley, supra note 6.

But that benefit comes with an upfront cost; non-condensing appliances are generally cheaper to purchase

and have lower maintenance and repair costs. See

Patterson-Kelley, supra note 6.

The difference in technology also produces two

key differences in how the appliances must be installed. First, the liquid condensates that give

condensing appliances their name must be managed

through piping and drainage or pump systems that

non-condensing appliances do not need. See PattersonKelley, supra note 6; Pet.App.49a (citing 86 Fed. Reg.

6 For a general overview of the technologies’ differences, see,

for example, Patterson-Kelley, Understanding Commercial

Condensing vs. Non-Condensing Appliances, Patterson-Kelley

Sols. Blog (Feb. 17, 2025), https://info.pattersonkelley.com/blog

/commercial-condensing-vs.-non-condensing-appliances; and Kevin

Dunn, Wash. Gas Light, Workshop Presentation to Department

of Energy (Oct. 9, 2014), https://www.energy.gov/documents

/october-9th-workshop-presentation-kevin-dunnpdf.

10

4776, 4816 (Jan. 15, 2021) (January 2021 Interpretive

Rule)).

Second, the condensing process changes the exhaust gases, requiring different venting. Pet.App.6a7a. Non-condensing appliances generally vent vertically, such as through a traditional chimney, without

the need for fan propulsion. Pet.App.6a, 44a-45a. By

contrast, condensing appliances’ cooler exhaust gases

must be propelled by a fan and can be vented horizontally. Pet.App.7a, 48a. They also need vents made of

corrosion-resistant material like PVC. Pet.App.7a; 88

Fed. Reg. at 87563 n.111. Non-condensing appliances

often use metal venting instead and tend to share a

common vent with other non-condensing appliances.

See 88 Fed. Reg. at 87563; Dunn, supra note 6, at 7.

Those differences are one thing for new construction, when a building can be designed and built for the

selected types of appliances. But they are quite

another for existing buildings. When it comes time to

replace an appliance, a condensing version cannot

simply be swapped in where a non-condensing appliance used to be.

Millions of existing homes and commercial buildings were built for non-condensing appliances, from

the location and space set aside for them, to the type

of venting, to the lack of piping and drainage. See

Pet.App.44a, 47a-48a. Replacing one non-condensing

furnace with another can be as simple as removing the

old one and dropping the new one in. Pet.App.51a.

Not so for switching to a condensing furnace,

which would require at least a new venting system

and potentially piping or a pump depending on the

11

drainage situation. Pet.App.50a-51a; 86 Fed. Reg. at

4786, 4816.

Commonly vented appliances, often found in

multifamily housing and larger buildings, compound

these challenges. Commonly vented appliances share

a chimney, so as each non-condensing appliance is replaced with a condensing version, its individual

exhaust output is removed from the common vent. Because chimneys depend on a proper ratio of exhaust

volume to capacity, removing enough appliances can

leave the chimney oversized for the remaining noncondensing appliances, preventing it from working

properly and requiring further renovations. See 88

Fed. Reg. at 87563; Dunn, supra note 6, at 7. Beyond

those technical complications, installing new venting

systems for condensing appliances can come with legal

complications in multi-owner buildings like condominiums, where vents may need to cross property lines.

Now factor in an urgent replacement. If the

Department has its way, a homeowner whose non-condensing furnace fails at the height of winter needs not

only a rapid replacement furnace, but also urgent renovations to accommodate the forced switch to a

condensing model. And weather conditions could of

course complicate or prevent those renovations, including by increasing the risk to workers.

The upshot is that non-condensing appliances

provide real utility to consumers, especially those replacing their appliances. The ability to install a dropin replacement without needing structural modifications matters; it means cheaper, less disruptive

replacements and less time without heat or hot water.

12

The vast majority of the affected products will be

for replacements, not new construction. The Department itself estimates that in 2029, replacements will

account for 81% of the residential gas furnace market,

resulting in 2.36 million units sold for replacements in

that year alone. 88 Fed. Reg. at 87599 tbl. IV-12. It

also estimates that non-condensing models will make

up about 39% of the residential gas furnace by then

(without standards prohibiting them). 88 Fed. Reg. at

87575. The market shares for commercial gas water

heaters are similar. 7

In short, by allowing the Department’s rules to

stand, the decision below would undermine consumer

choice. Driving non-condensing furnaces and commercial water heaters out of the market removes an

affordable, reliable option—and often the only option

compatible with existing buildings without the need

for renovations—for residential and commercial consumers alike. As explained below, that is exactly what

Congress prohibited the Department from doing.

7 For the Department’s discussion of condensing appliances’

market share, see 88 Fed. Reg. at 69765-66. The Department

published its estimates of the replacement market share only in

a separate spreadsheet. See Dep’t of Energy, Doc. No. EERE2021-BT-STD-0027, Commercial Water Heater National Impact

Analysis (NIA) Spreadsheet (Final Rule) (July 28, 2023),

https://www.regulations.gov/document/EERE-2021-BT-STD

-0027-0041. Tab “CGSWH_SL0,” columns “Z” and “BG” estimate

replacement market shares above 80% for every year through

2055 with or without the amended standards.

13

II. EPCA’s text and structure establish that

Congress’s protection of consumer choice

includes installation-related features.

EPCA’s plain text strikes a balance between pursuing energy conservation and protecting consumer

choice. That protection includes preventing the

Department from doing what it did here: taking away

access to a feature that allows appliances to be replaced

without

requiring

renovations.

The

Department’s contrary view, which the D.C. Circuit

accepted, cannot be squared with EPCA’s text or structure or with the Department’s own practice.

A. Non-condensing

technology

readily

satisfies EPCA’s broad protection for

“performance characteristics.”

EPCA expressly prohibits the Department from

issuing new or amended appliance standards

likely to result in the unavailability in the United

States in any product type (or class) of performance characteristics (including reliability,

features, sizes, capacities, and volumes) that are

substantially the same as those generally available in the United States at the time … .

§6313(a)(6)(B)(iii)(II)(aa) (emphasis added); accord

§6295(o)(4) (“performance characteristics (including

reliability), features, sizes, capacities, and volumes”).

This unavailability provision reflects Congress’s

policy decision to conserve energy by pursuing improved energy efficiency for each kind of appliance

while protecting consumer choice among existing

product options. And by providing separate protection

for “sizes, capacities, and volumes,” Congress made

14

clear that it cared not just about what appliances do

once they are installed, but also whether and where

they can be installed to begin with. That makes sense:

Many appliances are replacements; many buildings

are built to accommodate certain types and sizes of appliances; and consumers understandably value the

ability to make seamless replacements. 8

The rest of the statute points the same way. Rather than promoting energy conservation at all costs,

Congress repeatedly required the Department to balance that objective with protecting consumer choice,

ensuring cost-effectiveness and feasibility, and mitigating impacts on manufacturers. See Cal. Rest.

Ass’n v. City of Berkeley, 89 F.4th 1094, 1103-04 (9th

Cir. 2024) (recognizing that EPCA’s text reflects

Congress’s concern for appliances’ actual availability

to consumers).

Consistent with the unavailability provision,

Congress required the Department to set different

standards for products that use “different kind[s] of

energy,” thus preserving choice among fuels.

§6295(q)(1)(A). It likewise required separate standards for products with “a capacity or other

performance-related feature” that “justifies” a different standard compared to other products of the same

type or class. §6295(q)(1)(B). And it directed the

8 For those who find it helpful, the legislative history confirms

the point. The House Report discussing §6295(o)(4) explains that

the unavailability provision was designed to ensure that standards

do not deprive purchasers of “product choices and characteristics,

features, sizes, etc.” and that energy savings would be achieved

“without sacrificing the utility or convenience of appliances to

co[n]sumers.” See H.R. Rep. No. 100-11, at 22-23 (1987).

15

Department to make that determination by considering at least “the utility to the consumer of such a

feature.” §6295(q)(1).

Congress backstopped its restrictions on the

Department’s standard-setting power by also barring

the Department from waiving preemption for state or

local standards likely to make performance characteristics unavailable. §6297(d)(4); see also §6316(b)(2)(D)

(incorporating §6297(d)’s restrictions on waivers for

industrial equipment standards). It also prohibited

the Department from waiving preemption for regulations that “will significantly burden manufacturing,

marketing, distribution, sale or servicing” of covered

appliances. §6297(d)(3). And it required the Department to evaluate that burden by considering, among

other things, “the extent to which the regulation would

result in a reduction … in the current models, or in the

projected availability of models, that could be

shipped.” §6297(d)(3)(C).

Especially when read in this context, the unavailability provision’s term “performance characteristics”

readily encompasses non-condensing technology. A

“characteristic” is “[a] distinctive mark, trait, or feature” or “a distinguishing or essential peculiarity or

quality.” Characteristic, Oxford English Dictionary

(2d ed. 1989) (def.B.1). And “performance,” as relevant

here, refers to “the capabilities of a machine or device.”

Performance, id. (def.2a). So at its simplest, an appliance’s

performance

characteristics

are

its

distinguishing capabilities—which Congress defined

to include, at a minimum, its “reliability, features, size[],

capacit[y], and volume[],” §6313(a)(6)(B)(iii)(II)(aa).

Given the term’s ordinary meaning and the statutory

16

context, the parties and the D.C. Circuit correctly recognized that “performance characteristics” includes

“product attribute[s] that provide[] utility to consumers desiring to use the product.” Pet.App.15a. 9

Non-condensing technology is just such an attribute. As discussed, because of how they work, noncondensing appliances have the ability to vent

through ordinary, unpowered vertical chimneys and

do not need piping or pumps for condensate management. Those features distinguish them from

condensing appliances and provide concrete benefits,

including the ability to install them without renovations in millions of buildings that are not configured

for condensing appliances. Just as an appliance’s

“size” or “volume” affects its suitability for or ease of

installation in a particular building or space—and

thus provides utility distinct from its “capacity”—so

too for features like condensing or non-condensing

technology.

Non-condensing technology is thus a protected

performance characteristic, and so EPCA prohibits the

There is reason to doubt that Congress equated

performance characteristics with utility. Section 6295(o)(2)(B)

sets out cost-effectiveness criteria for amending a standard,

which include “any lessening of the utility or the performance of

the covered products likely to result from the imposition of the

standard.” §6295(o)(2)(B)(i)(IV). And as explained above,

§6295(q)(1)(B) names “utility to the consumer” as one factor in

determining whether a performance-related feature warrants a

separate standard. Rather than equating performance

characteristics with utility, these provisions’ use of “utility”

alongside “performance” terms establishes that utility is a

separate, albeit related, consideration—and that when Congress

wanted utility to drive the decision, it said so.

9

17

Department from setting standards that make noncondensing appliances unavailable. §§6295(o)(4),

6313(a)(6)(B)(iii)(II)(aa).

B. The Department’s contrary view is

inconsistent with the statute and the

agency’s own longstanding practice.

Departing from this straightforward reading, the

D.C. Circuit majority adopted the Department’s far

narrower view. On that view, the only “utility” that

matters is the appliance’s basic function (here, its ability to “provide hot air or hot water”), or perhaps other

attributes a consumer notices and values when operating an already-installed appliance. Pet.App.19a &

n.6. That view has nothing to recommend it.

1. Despite recognizing that “the plain meaning of

‘performance characteristics’ is broad” and accepting

the parties’ understanding that it encompasses “a

product attribute that provides utility to consumers

desiring to use the product,” Pet.App.15a, the majority

followed the Department’s lead in narrowing the term.

Aside from improper deference to the Department’s interpretation, see Pet.16-21, the majority’s

reasoning rested on two unsupported leaps of logic

from the parties’ arguments, not the text. The majority first jumped from the parties’ reference to

consumers’ desire to use an appliance to the conclusion that “a performance characteristic has to be about

using the product.” Pet.App.16a (cleaned up). And

from there, it took a still bigger jump, landing on its

insistence that only use after a successful installation

matters, so that the only relevant “utility” the appliances at issue provide is their raw output: “hot air or

hot water.” Pet.App.19a.

18

None of that follows from the parties’ agreed definition, let alone the text Congress wrote. A consumer

“desiring to use [a] product,” Pet.App.15a, cannot do

so unless she can first install it. Product attributes

that enable an appliance to be installed without costly

renovations thus provide “utility” to such a consumer

as that word is ordinarily understood. They make the

appliance more “useful or serviceable” for that consumer; more “fit[] for some desirable purpose or

valuable end.” Utility, Oxford English Dictionary (2d

ed. 1989) (def.1a) (“The fact, character, or quality of

being useful or serviceable; fitness for some desirable

purpose or valuable end; usefulness, serviceableness.”); see also id. (def.1d) (“[t]he intrinsic property of

anything that leads an individual to choose it rather

than something else”).

The D.C. Circuit majority, however, declared it

“obvious” (at least “[a]t a certain level”) that “consumers do not buy small furnaces or commercial water

heaters because of how the appliance vents.”

Pet.App.18a. That is anything but obvious, which is

perhaps why the majority could not muster any factual support. True, “both condensing and noncondensing appliances” require “venting.” Id. But they

require fundamentally different venting. Supra pp.1011. Even assuming that consumers are indifferent to

the distinction for new construction, a rational consumer replacing an appliance is bound to consider

“how the [potential replacement] vents,” Pet.App.18a,

which determines whether that replacement will require the additional time, expense, and disruption of

renovations before it can be used. If anything is “obvious” here, it’s that the typical consumer will care

about the difference between a drop-in replacement of

19

the same type of appliance and a replacement that

requires renovations. So if utility is what’s required,

non-condensing technology provides it in spades.

2. If the consumer-facing function of the appliance—producing hot air or hot water—were the only

performance characteristic that mattered, surely

Congress would have said so. All it would have needed

to do is prohibit regulations from making a type or

class of product (those with the same function) unavailable. But Congress chose a far more robust

protection for consumer choice. It used an expansive

term, “performance characteristics”; specified that the

term reaches both functional attributes like “reliability” and “capacity” and physical characteristics like

“sizes” and “volumes”; and included the broad term

“features” to boot. 10

What’s more, both the unavailability provision

and §6295(q) reflect an understanding that there will

be variation among the “performance characteristics”

of appliances that share the same basic function.

Section 6295(q)(1)(B) requires setting a higher or

lower standard for a group of products within a

product class that “have the same function or intended

use” but nevertheless have distinct “capacit[ies] or

other performance-related feature[s].” Limiting

“performance characteristics” to the basic function of

the appliance is irreconcilable with Congress’s express

protection for distinct performance characteristics

among appliances sharing the same function. Contra

10 See, e.g., Feature, Oxford English Dictionary (2d ed. 1989)

(def.4) (“[a] distinctive or characteristic part of a thing”).

20

Pet.App.19a; December 2021 Interpretive Rule, 86

Fed. Reg. at 73951.

Similarly, the D.C. Circuit majority’s view stands

in tension with Congress’s decision to require separate

standards for each “kind of energy,” such as gas, oil, or

electricity, §6295(q)(1)(A). If all that matters is that

the furnace produces “heated air” when a consumer

“adjusts the thermostat,” Pet.App.24a (quoting 86

Fed. Reg. at 73953), why bother preserving choice

among fuels? After all, gas and electric furnaces both

heat air.

Contrary to the majority’s view, see Pet.App.17a18a, the legislative history does not narrow, but rather

reinforces, the broad provision Congress wrote. The

examples of “performance characteristics” and “features” in the House Report provide a range of both

functional and physical attributes—including costs.

See Pet.App.18a (listing “serviceability,” “safety,” and

“incidence and cost of repair” as “performance characteristics,” plus “size” and “noise levels” as “features”

(alteration incorporated) (quoting H.R. Rep. No. 100-11,

at 23)). That the legislative history did not expressly

“state that venting mechanics were examples of performance characteristics or features” cannot override

the plain meaning of the enacted text. Contra

Pet.App.18a.

3. Given the plain text of the statute, it should

come as little surprise that the Department’s current

view clashes with its longstanding approach. Time

and again, the Department has treated venting, space

constraints, and similar attributes affecting a consumer’s ability to install and use an appliance as

21

performance

standards.

characteristics

warranting

separate

That is why, for example, the Department set separate standards for ventless dryers. A consumer

whose building does not currently support a vented

dryer could, of course, renovate it to that end. But the

Department nonetheless “recogniz[ed] the unique utility that ventless clothes dryers offer to consumers”

and thus treated the ability to avoid installing a vent

as a protected performance characteristic. 76 Fed.

Reg. 22454, 22485 (April 21, 2011). It explained that

although it used to call these appliances “condensing

dryers,” the “new designation” as “ventless” better

“reflects the actual consumer utility (that is, no external vent required),” along with “the market

availability of vented dryers that also condense.” Id. at

22485 n.28. In other words, the utility warranting a

separate standard was not the condensing technology

standing alone, but rather the installation characteristic of not needing external venting.

There is no meaningful distinction between dryers

that do not require adding a vent and furnaces that do

not require replacing one venting system with another. The best the D.C. Circuit majority could muster

was that access to ventless dryers “impacted whether

a consumer could use or install the particular appliance at all in a large class of applications.”

Pet.App.20a. That describes this case. If EPCA does

not expect consumers to punch through walls to install

venting systems for their dryers, then neither does it

expect them to punch through walls to install venting

systems that can accommodate condensing furnaces

and water heaters.

22

That is not all. To take just a handful of examples:

The Department has recognized separate classes of

“space constrained” air conditioning units because

their ability to, well, accommodate space constraints

qualified as a performance-related feature. 76 Fed.

Reg. 37408, 37446 (June 27, 2011). It has recognized

separate classes for residential clothes dryers based

on installation space constraints and differences in

electric power supply. 10 C.F.R. §430.32(h)(3). It has

distinguished tabletop water heaters based on their

ability to accommodate “strict size limitations.” 66

Fed. Reg. 4474, 4478 (Jan. 17, 2001). And it has recognized separate equipment classes for standard and

non-standard sizes of packaged terminal air conditioners because it was “concerned that, absent nonstandard equipment, commercial customers could be

forced to invest in costly building modifications to convert non-standard sleeve openings to standard size

dimensions.” 73 Fed. Reg. 58772, 58782 (Oct. 7, 2008).

And there is still more. Even for residential furnaces, the Department has distinguished among

appliances with the same “primary function,” 86 Fed.

Reg. at 73958, several times over. It divides standards

based on whether furnaces are fueled by oil, gas, or

electricity, as §6295(q)(1)(A) commands; whether they

are for mobile homes; and whether they are weatherized (for outdoor use) or not (for indoor use). 10 C.F.R.

§430.32(e)(1)(ii). None of those distinctions affects

what happens when a consumer “adjusts the thermostat,” yet all supported separate product classes, and

rightly so. Contra Pet.App.24a.

Finally, in its January 2021 Interpretive Rule, the

Department itself recognized that non-condensing

23

technology’s distinct installation considerations provide utility to consumers and are performance

characteristics that cannot be made unavailable. 86

Fed. Reg. at 4816; see also Pet.App.48a-49a. The majority simply ignored this rule in favor of deferring to

the Department’s reversal of its position less than a

year later. Pet.App.22a-24a.

The Department’s interpretation would not be entitled to deference in any event. Loper Bright Enters. v.

Raimondo, 144 S. Ct. 2244, 2273 (2024). But its aboutface from its longstanding practice and its January

2021 Interpretive Rule underscores that there is no

ambiguity here, “specific” or otherwise. Contra

Pet.App.16a. The Department’s previous understanding comported with the statute’s plain text;

its new one does not.

4. That leaves the Department’s and majority’s

contention that EPCA treats installation considerations as costs to be addressed in the economic analysis

under §6295(o)(2)—and nothing else. Pet.App.25a26a. That misunderstands the statutory scheme.

Nobody doubts that increased installation costs

should be part of that economic analysis. The Department cannot impose any standard without establishing that it is “technologically feasible and economically justified.” §6295(o)(2). But clearing that bar

is not enough. Even when a standard passes technical

and economic muster under §6295(o)(2), it still cannot

run afoul of §6295(o)(4)’s unavailability provision. The

whole point of the unavailability provision is to bar

economically justifiable standards that would “sacrific[e] the utility or convenience of appliances to

co[n]sumers.” H.R. Rep. No. 100-11, at 22-23. That a

24

performance characteristic affects the cost-benefit

analysis is no excuse for ignoring Congress’s separate

protection for consumer choice.

III. The interpretation the D.C. Circuit

approved will reach well beyond this case,

removing congressional constraints on the

Department’s standard-setting power.

What the D.C. Circuit allowed the Department to

do for furnaces and commercial water heaters, the

Department could well do throughout EPCA’s appliance-standards program. There is no reason to think

the Department’s dismissal of installation considerations can be confined to the appliances at issue here or

to the distinction between condensing and non-condensing appliances. See December 2021 Interpretive

Rule, 86 Fed. Reg. at 73951 (concluding that “in the

context of residential furnaces, commercial water

heaters, and similarly-situated products or equipment,” non-condensing technology is not a

performance characteristic (emphasis added)); see also

id. (concluding that “utility” does not include “design

parameters impacting installation complexity, or costs

that anyone, including the consumer, manufacturer,

installer, or utility companies, may bear”).

To be clear, the challenged rules affect millions of

appliances and consumers in their own right. But the

view of “performance characteristics” the D.C. Circuit

endorsed would free the Department to eliminate far

more types of appliances. The Department has already

tried to eliminate non-condensing gas tankless water

heaters using the same theory from its December 2021

Interpretive Rule; Congress had to step in using the

Congressional Review Act. See Joint Resolution of

25

May 9, 2025, Pub. L. No. 119-6, 139 Stat. 49 (disapproving 89 Fed. Reg. 105188 (Dec. 26, 2024)). Other

types of appliances, such as commercial gas furnaces

and boilers, §6313(a)(4), also have condensing and

non-condensing models. And there is no clear distinction between non-condensing features and others that

affect installation or suitability for particular buildings. In short, the decision below undermines the

unavailability provision as a check on the Department’s standard-setting power.

***

When it entrusted the Department with the

power to set appliance standards, Congress installed

guardrails that would preserve its preferred balance

between energy conservation and consumer choice.

The D.C. Circuit’s decision rips out those guardrails,

leaving the Department free to remake the appliance

industry at the expense of consumer choice—with

sweeping effects on manufacturers, distributors,

builders, and end users. Certiorari is warranted to

restore the statute Congress wrote.

26

CONCLUSION

This Court should grant the petition for certiorari.

Respectfully submitted,

Sarah O. Jorgensen

Brian C. Baran

Counsel of Record

REICHMAN JORGENSEN

LEHMAN & FELDBERG LLP

1909 K St. NW, Suite 800

Washington, DC 20006

(202) 894-7310

bbaran@reichmanjorgensen.com

Noelle Chung

REICHMAN JORGENSEN

LEHMAN & FELDBERG LLP

100 Marine Pkwy., Suite 300

Redwood Shores, CA 94065

February 23, 2026