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

No. 25-879

IN THE

Supreme Court of the United States

————

AMERICAN GAS ASSOCIATION, ET AL.,

Petitioners,

v.

U.S. 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 OF AMICI CURIAE

NATIONAL APARTMENT ASSOCIATION,

NATIONAL MULTIFAMILY HOUSING COUNCIL,

AND MANUFACTURED HOUSING INSTITUTE

SUPPORTING PETITIONERS

————

DANIEL B. RANKIN

BAKER BOTTS L.L.P.

401 South 1st Street

Suite 1300

Austin, Texas 78704

(512) 322-2673

J. MARK LITTLE

Counsel of Record

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

(713) 229-1489

mark.little@bakerbotts.com

Counsel for Amici Curiae National Apartment Association, National Multifamily Housing Council, and Manufactured Housing Institute

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

i

TABLE OF CONTENTS

Page

Interest of Amici Curiae ..................................................... 1

Summary of Argument ........................................................ 3

Argument .............................................................................. 4

I.

The Decision Below Undermines Both Loper

Bright And EPCA’s Prohibition Against

Banning Entire Categories Of Appliances .......... 4

A.

The D.C. Circuit circumvented Loper

Bright............................................................. 5

B.

The D.C. Circuit provided a roadmap

for evading EPCA’s prohibition against

banning

entire

categories

of

appliances. ..................................................... 7

II. The Consumer Furnace Rule Will Exacerbate

The Housing Affordability Crisis ......................... 9

Conclusion ........................................................................... 14

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Chevron, U.S.A. v. Nat. Res. Def. Council,

467 U.S. 837 (1984) ..................................................4, 5, 6

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) .......................................... 3, 4, 5, 6, 7

Marbury v. Madison,

1 Cranch 137 (1803) ........................................................ 6

STATUTES

42 U.S.C. § 6295(o)(4) ........................................................4, 7

42 U.S.C. § 6313(a)(6)(B)(iii)(II)(aa) ................................4, 7

REGULATIONS

24 C.F.R. § 3280, et seq. ..................................................... 11

81 Fed. Reg. 65,720 (Sept. 23, 2016) ................................. 11

86 Fed. Reg. 73,947 (Dec. 29, 2021) .................................... 2

88 Fed. Reg. 69,686 (Oct. 6, 2023) ....................................... 2

88 Fed. Reg. 87,502 (Dec. 18, 2023) .................................... 1

MISCELLANEOUS

H.R. Rep. No. 100-11 (1987) ................................................ 8

iii

TABLE OF AUTHORITIES – Continued

Page(s)

Dollar of Rent Tool, NAA (2026) ...................................... 10

Government Regulation in the Price of a New Home:

2021, NAHB (May 5, 2021) .......................................... 14

NAHB Priced-Out Estimates for 2023, NAHB

(March 2023) ................................................................. 14

NMHC-NAHB Cost of Regulations Report (2022) (June

9, 2022) ........................................................................... 14

IN THE

Supreme Court of the United States

————

AMERICAN GAS ASSOCIATION, ET AL.,

Petitioners,

v.

U.S. 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 OF AMICI CURIAE

NATIONAL APARTMENT ASSOCIATION,

NATIONAL MULTIFAMILY HOUSING COUNCIL,

AND MANUFACTURED HOUSING INSTITUTE

SUPPORTING PETITIONERS

————

INTEREST OF AMICI CURIAE1

The amici are a group of trade associations whose

members’ interests are threatened by the Consumer Furnace Rule.2 The National Apartment Association (NAA) is

Pursuant to this Court’s Rule 37.2, amici provided timely notice of

their intention to file this brief to counsel for all parties. In accordance

with this Court’s Rule 37.6, no counsel for any party has authored this

brief in whole or in part, and no person or entity, other than amici,

their members, or their counsel, has made a monetary contribution to

the preparation or submission of this brief.

1

Energy Conservation Program: Energy Conservation Standards for

Consumer Furnaces, 88 Fed. Reg. 87,502 (Dec. 18, 2023). Two other

2

2

the leading voice and preeminent resource through advocacy, education, and collaboration on behalf of the rental

housing industry. As a federation of 139 state and local affiliates, NAA encompasses nearly 113,000 members representing more than 13.5 million apartment homes. NAA

believes that rental housing is a valuable partner in every

community that emphasizes integrity, accountability, collaboration, responsibility, inclusivity, and innovation. NAA and its network of state and local apartment associations work to ensure that public policy does not impede but rather promotes the ability of apartment owners

and operators to run their businesses and provide housing

to more than 40 million Americans.

Based in Washington, D.C., the National Multifamily

Housing Council (NMHC) is where rental housing providers and suppliers come together to help meet America’s

housing needs by creating inclusive and resilient communities where people build their lives. NMHC advocates for

solutions to America’s housing challenges, conducts

rental-related research, and promotes the desirability of

rental living. Over one-third of American households rent,

and over 21 million U.S. households live in an apartment

home (buildings with five or more units).

The Manufactured Housing Institute (MHI) is the only

national trade organization representing all segments of

the factory-built housing industry. MHI’s members include builders, suppliers, retail sellers, lenders, installers,

community owners, community managers, and others who

rules are also at issue in this case: (1) Energy Conservation Program

for Appliance Standards: Energy Conservation Standards for Residential Furnaces and Commercial Water Heaters, 86 Fed. Reg. 73,947

(Dec. 29, 2021); and (2) Energy Conservation Program: Energy Conservation Standards for Commercial Water Heating Equipment, 88

Fed. Reg. 69,686 (Oct. 6, 2023). Amici limit their focus to the Consumer Furnace Rule.

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serve the manufactured housing industry, as well as 50 affiliated state organizations. MHI’s members are responsible for close to 85% of the manufactured homes produced

each year. Manufactured housing provides an affordable

form of home ownership for more than 22 million people

nationwide.

As representatives of a broad range of housing providers, amici have much at stake regarding the Consumer

Furnace Rule. Amici submit this brief to (1) highlight particularly troublesome aspects of the decision below both

for administrative law generally and for the Energy Policy

and Conservation Act (EPCA) specifically, and (2) emphasize the Consumer Furnace Rule’s unintended consequences of making housing less affordable, especially for

low-income individuals who are least able to bear the increased costs.

SUMMARY OF ARGUMENT

The decision below has the potential to be a landmark

case for all the wrong reasons. In a trailblazing opinion,

the D.C. Circuit ran roughshod over this Court’s precedents and Congress’s statutes. Despite Loper Bright’s

clear command that courts must exercise their “independent judgment in deciding whether an agency has acted

within its statutory authority,” Loper Bright Enterprises

v. Raimondo, 603 U.S. 369, 412 (2024), the D.C. Circuit instead deferred to DOE’s reading of EPCA by declining to

“second-guess” the agency’s view. Worse yet, it did so on

the flimsiest of bases, citing a phantom statutory delegation of discretion and irrelevant agency expertise as support. If that is all it takes to sidestep Loper Bright and restore a mode of analysis that looks suspiciously like Chevron deference, then the age of near-reflexive agency deference is very much back in full force in the Nation’s most

influential lower court for administrative law.

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The D.C. Circuit also fundamentally transformed

EPCA from a statute that places the highest of values on

consumer choice into one that is far less concerned with

that goal. EPCA plainly states that DOE may not adopt

efficiency standards that are “likely to result in the unavailability” of products with “performance characteristics”

that are currently available. 42 U.S.C. §§ 6295(o)(4),

6313(a)(6)(B)(iii)(II)(aa). The decision below adopted an

unduly narrow view of that provision, and only by doing so

was it able to uphold the Consumer Furnace Rule despite

its banning of non-condensing furnaces. The upshot is a

substantial weakening of EPCA’s explicit protection of

consumer choice. Now all of the many EPCA-covered

products that Americans use and value are at risk of being

banned by new efficiency regulations, despite Congress’s

clear command to the contrary.

The practical consequences of the decision below are

no less dire. The Consumer Furnace Rule will add substantial new costs to housing. These added financial burdens come at the worst possible time, as the Nation is already in the midst of a housing affordability crisis. Further exacerbating the situation is that these new costs fall

disproportionately on those least able to bear them. These

real consequences for real people further underscore the

importance of this case and serve as an additional reason

for this Court to grant certiorari.

ARGUMENT

I. THE DECISION BELOW UNDERMINES BOTH LOPER

BRIGHT AND EPCA’S PROHIBITION AGAINST BANNING ENTIRE CATEGORIES OF APPLIANCES

The D.C. Circuit did violence to both Loper Bright and

EPCA in the decision below. It provided a blueprint for

evading the key features of both. Without this Court’s intervention, the decision below will usher in a new age of

5

agency deference and the trouncing of Congress’s clearly

expressed protection of consumer choice.

A. The D.C. Circuit circumvented Loper Bright.

The D.C. Circuit’s decision effectively rolls back the

clock to the days of Chevron deference. Although the opinion’s statutory analysis began with the correct statement

that “DOE’s interpretation of EPCA does not bind us,”

Pet. App. 14a, it gradually backtracks and by the end effectively accords DOE significant deference on the core

statutory interpretation question in the case—the meaning of “performance characteristic” in EPCA.

The D.C. Circuit accomplished this maneuver by making a series of interpretive moves that eventually escalate

to something resembling full-blown Chevron deference.

The court started off by holding that “Congress gave DOE

‘a degree of discretion’ to decide what constitutes a performance characteristic.” Ibid. (quoting Loper Bright, 603

U.S. at 394). Yet one searches EPCA in vain for any of the

hallmarks of interpretive delegation that the Court identified in Loper Bright. EPCA contains no “express[] delegat[ion]” to DOE “to give meaning to [this] particular statutory term.” Loper Bright, 603 U.S. at 394. Nor does the

statute employ delegative terms such “appropriate” or

“reasonable” when it comes to defining a “performance

characteristic.” Id. at 395.

Instead, the D.C. Circuit’s basis for this finding of delegation of discretion appears to rest on its view that the

definition of the term “performance characteristic” is

“case-specific.” Pet. App. 16a. But by “case-specific,” the

court seemingly referred to the routine scenario in which

a statutory term is applied to a specific set of facts, as the

definition of “performance characteristic” is both “plain”

and “broad,” Pet. App. 15a, and there is no dispute about

the relevant facts of condensing and non-condensing furnaces. Needless to say, this routine presentation of a legal

6

question provides no basis for surrendering interpretive

authority to an agency. Rather, all a court must do is take

the definition of the statutory term “performance characteristic” and apply it to the undisputed facts regarding

condensing and non-condensing furnaces. That lies at the

core of the judiciary’s foundational duty to “say what the

law is.” Loper Bright, 603 U.S. at 385 (quoting Marbury v.

Madison, 1 Cranch 137, 177 (1803)).

The D.C. Circuit’s claim of agency “expertise” is another miscue. Pet. App. 27a. To be sure, an agency’s view

of a statute “may be especially informative ‘to the extent

it rests on factual premises within [the agency’s] expertise.’” Loper Bright, 603 U.S. at 402. But the decision below takes that a step further and credits DOE’s technical

expertise despite the fact that it is irrelevant to the question at hand. Whether a product’s compatibility with existing infrastructure qualifies as a “performance characteristic” is a not a technical question, and it certainly does not

implicate DOE’s expertise. Yet the D.C. Circuit invoked

that expertise as a basis for agency deference nevertheless. That marks a departure from this Court’s admonition

in Loper Bright that deference to an agency’s view has

never made sense when the interpretive question has “little to do with an agency’s technical subject matter expertise.” Ibid. Moreover, even if this issue were a technical

one, “it does not follow that Congress has taken the power

to authoritatively interpret the statute from the courts and

given it to the agency. Congress expects courts to handle

technical statutory questions.” Ibid.

The D.C. Circuit concluded its analysis by professing

that it “ha[d] no reason to second-guess DOE’s view.” Pet.

App. 27a (emphasis added). That statement harkens back

to a bygone era where courts reviewed agency statutory

interpretations merely for a baseline level of reasonableness. See Chevron, U.S.A. v. Nat. Res. Def. Council, 467

U.S. 837, 844 (1984). It is difficult to square with this

7

Court’s command in Loper Bright that “courts use every

tool at their disposal to determine the best reading of the

statute.” Loper Bright, 603 U.S. at 400. Determining the

best reading requires more than reviewing the agency’s interpretation and finding no great fault that warrants second-guessing. After all, “[i]n the business of statutory interpretation, if it is not the best, it is not permissible.” Ibid.

Anything short of full fidelity to Loper Bright from the

D.C. Circuit, the most influential lower court in this critical area, portends further harm to administrative law writ

large. It takes no great imagination to see how this will

play out. The barriers to entry are minimal—merely finding some “case-specific” aspect of the question and perhaps also invoking general agency expertise. Once that is

done, then courts will shift from “exercis[ing] their independent judgment in deciding whether an agency has

acted within its statutory authority,” id. at 412, to the

much more deferential mode of determining whether an

agency’s interpretation should be “second-guess[ed],” Pet.

App. 27a. This Court’s intervention is required to nip this

dangerous deviation in the bud and ensure that Loper

Bright’s core holding remains the guiding force in administrative law.

B. The D.C. Circuit provided a roadmap for evading

EPCA’s prohibition against banning entire categories of appliances.

The decision below also significantly weakened

EPCA’s prohibition against DOE adopting efficiency

standards that are “likely to result in the unavailability” of

products with “performance characteristics” that are currently

available.

42

U.S.C.

§§

6295(o)(4),

6313(a)(6)(B)(iii)(II)(aa). As Judge Rao explained in her

dissent, the “unavailability” limitation “balances the regulatory promotion of greater energy efficiency with the

preservation of products that have features that provide

8

utility to consumers.” Pet. App. 46a; see also H.R. Rep.

No. 100-11, at 22-23 (1987) (explaining that the unavailability provision “ensures that energy savings are not

achieved through the loss of significant consumer features” and prohibits a standard from making a product

with a particular feature “prohibitively expensive”). “Noncondensing appliances,” she continued, have a “unique

venting method, which allows for direct integration into

many existing exhaust systems without cumbersome and

costly retrofits. This integration capability is a ‘performance characteristic’ of non-condensing appliances that

EPCA protects from regulatory elimination.” Pet. App.

56a-57a.

The majority cast aside that straightforward reasoning. Although “[n]o one doubts that the challenged regulations make non-condensing appliances unavailable,” Pet.

App. 44a, the D.C. Circuit managed to uphold the Consumer Furnace Rule nonetheless by denying that “noncondensing consumer furnaces * * * offer performance

characteristics that are unlike those offered by their condensing counterparts,” Pet. App. 27a. Petitioners and

Judge Rao have chronicled the myriad missteps the D.C.

Circuit made along the way. See Pet. 25-32; Pet. App. 50a59a. The bottom line is that the D.C. Circuit’s cramped

view of the “unavailability” provision undermines EPCA’s

explicit protection of consumer choice.

Absent this Court’s intervention, this will be only the

first chapter in this story. The D.C. Circuit has provided

DOE the playbook for eliminating entire categories of

products despite EPCA’s explicit prohibition against doing so. Today the casualties are non-condensing consumer

furnaces. Tomorrow it could be any of the many other appliances that Americans use, depend on, and value in their

daily lives. Congress carefully crafted EPCA to prevent

precisely this result. But its plainly expressed intent will

be thwarted if the decision below stands.

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II. THE CONSUMER FURNACE RULE WILL EXACERBATE

THE HOUSING AFFORDABILITY CRISIS

The importance of this case extends beyond the doctrinal consequences of the D.C. Circuit’s opinion. While those

are certainly disruptive, the immediate practical effects of

upholding the Consumer Furnace Rule warrant discussion as well. Put plainly, the Consumer Furnace Rule will

impose steep new costs on housing, with lower-income individuals bearing the brunt of the added expenses.

A. The Consumer Furnace Rule will add these new

cost burdens in myriad ways. Because only condensing

furnace technology can meet the Consumer Furnace

Rule’s 95 annual fuel utilization efficiency (“AFUE”)

standard, it effectively eliminates non-condensing

furnaces as an option for home heating. That directly

translates into an increase in the cost of furnaces for many

owners and developers of housing. For starters,

condensing furnaces cost approximately $1,300 more than

non-condensing furnaces. Amici Joint Comments,

J.A.600. That represents a substantial additional cost that

will find its way into home prices and rents.

Equally troubling is that the need to use condensing

furnaces will require physical changes in the design of

some types of housing. See ibid. Condensing furnaces

typically require not only larger cabinets but also

substantially different (and larger) venting/combustion air

intake systems and the addition of condensate drain

systems. While these larger units can generally be

accommodated in more spacious, higher-end homes, these

physical differences can become more problematic in

multifamily dwelling units and entry-level homes.

These problems can be particularly acute for housing

providers and homeowners who need to replace their

furnaces. See ibid. For example, replacing noncondensing units located in attics with condensing units

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could require a substantial retrofit of the dwelling unit.

That is because the purchase of a condensing furnace,

often with a larger cabinet and different ductwork

requirements, may require modifications to the property

to accommodate the larger cabinet, new ductwork for

venting, and new plumbing for drainage.

All these issues are, if anything, magnified for owners

of existing multifamily properties. J.A.600-01. Replacing a

gas furnace in an individual apartment home now may require the construction of an entirely new ventilation

system within that apartment to meet the venting

requirements of the condensing furnace unit. This poses

significant constructability challenges given the typical

size and configuration of apartment buildings and dwelling

units. In many properties, this would create a serious

obstacle because there is insufficient clearance on the

exterior wall of the property to locate a ventilation pipe

due to existing windows and doors. Eliminating windows

or limiting their operability is likely not an option for

overcoming this barrier given existing requirements for

egress, fire safety, ventilation, and light. All of that

construction will also come with an added financial burden

that many apartment owners will be hard-pressed to cover

given their tight margins.3

These issues are also heightened for homeowners

faced with replacing their broken or outdated furnace. On

top of the approximately $1,300 additional cost to replace

a non-condensing furnace with a condensing furnace,

these residents may be faced with a home renovation

See Dollar of Rent Tool, NAA (2026) (breaking down the various expenses that rent payments go to), https://naahq.org/research/dollarrent-tool.

3

11

costing several thousand additional dollars.4 The median

annual household income of the typical manufactured

home homeowner is approximately $35,000, so the average

manufactured homeowner may be unable to afford this expense that will reduce the livable space in their home.5

Those residents who cannot afford such a renovation may

turn to alternative heating sources such as space heaters,

which are both not energy efficient and, in many instances,

dangerous.

Depending on the property and the equipment in use,

altering the venting for the furnace may also necessitate

replacement of the gas hot water heater. J.A.601. In

addition to the ventilation requirements, the plumbing

issues associated with this technology would also lead to

considerable expense for owners seeking to replace an old

or malfunctioning furnace with a new, efficient gas

Manufactured homes are constructed according to a federal, performance-based construction code known as the HUD Code. 24 C.F.R.

§ 3280, et seq. Any modifications to a manufactured home once constructed require approval of the manufacturer and its approved Design Approval Primary Inspection Agency. Therefore, owners of manufactured homes will have to undertake additional time and expense

obtaining this approval for any renovations necessitated by a replacement furnace.

4

DOE’s original cost analysis assumed limited impact on the manufactured home replacement market because furnaces generally will

not be replaced, arguing that “the lifetime of a mobile home is often

similar to that of a [mobile home gas furnace].” 81 Fed. Reg. 65,720,

65,795 (Sept. 23, 2016). However, the useful life of today’s properly

maintained manufactured homes are equivalent to site-built housing.

Further, a recent survey of manufactured home homeowners conducted by MHI indicates that many homeowners enjoy living in manufactured housing and plan to stay in their homes indefinitely. Thus,

contrary to DOE’s assumptions, there will be a significant price impact for homeowners when they must face the costly process of retrofitting their manufactured homes to replace an old furnace with

newer, more efficient technology.

5

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furnace. The cost impact of changing out flues and adding

combustion air ducts to existing buildings would also

impact fire-rated floor assemblies. These constructability

issues would result in a potentially prolonged

displacement of residents, extensive disruption to

property operations, interruption of resident quality of

life, and significant costs.

These additional costs will, in turn, lead to higher home

prices and higher rents. J.A.599-600. Whether that occurs

through passing the costs on to the buyers or renters or

due to price increases following housing underproduction

caused by these heightened costs, the result will be that

Americans will have to pay more for their housing. The

most vulnerable among us will be hardest hit, as low-income individuals are not well positioned to absorb the

higher costs for the largest line-item in their budget.

These Americans are already struggling to make ends

meet. Yet the Consumer Furnace Rule ratchets up the

pressure on their precarious finances.

Contrary to DOE’s claims, these costs will not be offset

by savings on operating costs. In some areas (particularly

the South), owners will not easily be able to recoup the

added costs of 95 AFUE units in new housing. J.A.601. In

many Southern climates, furnaces run for a maximum of

three months a year, and usually only in response to

temperatures that are relatively mild by the standards of

New England or the Upper Midwest. For these owners, it

will take years if not decades to recoup the cost of a more

expensive furnace through long-term energy savings. For

existing housing, even owners in cooler climates may have

difficulty recouping the cost of a retrofit in a reasonable

period of time depending on the extent of the work

required to install a condensing furnace. See ibid. These

calculations are even more complex in the rental housing

environment where there can be a disconnect between

who bears the high, upfront costs of the proposed

13

equipment and the party responsible for utility expenses.

But the result is the same—a less than sanguine outlook

on the prospects for energy savings to offset the high upfront costs of the 95 AFUE units mandated by the Consumer Furnace Rule.

B. In the current housing market, the Consumer Furnace Rule’s addition to housing costs is a burden that

many households cannot bear. Housing prices have risen

precipitously in recent years. Median home sale prices

have risen by double digits. J.A.599. As a result, seven out

of ten households cannot afford a median-priced home,

and affordability is deteriorating further due to significant

increases in mortgage rates. Ibid. Entry-level homes

(including manufactured homes) have not been immune to

these market forces. If anything, the situation is worse in

that critical market segment due to a supply crunch. A

generation ago nearly half of new home construction was

devoted to entry-level homes; now their share has plummeted to the single digits. Ibid.

It is no better for America’s renters. Rents have

increased significantly, resulting in a rise of cost-burdened

apartment households from 42.4% in 1985 to 54.7% in 2019.

Ibid. The number of affordable apartments (monthly rents

below $1,000) declined by 4.7 million between 2015 and

2020 alone. Ibid.

Regulations that add to the cost of housing are a key

factor contributing to the affordability crisis. Even when

the individual costs of compliance with these requirements

seem relatively modest, added regulatory burdens

collectively create a substantial financial burden for the

development and rehabilitation of housing. Indeed,

regulatory requirements account for almost a quarter of

the average cost of a new single-family home. See Government Regulation in the Price of a New Home: 2021,

14

NAHB (May 5, 2021), at 2. And they account for nearly

half of the total development costs of new multifamily

communities. See NMHC-NAHB Cost of Regulations Report (2022) (June 9, 2022), at 3.7 Whether that manifests in

the form of higher rents and sales prices or the underproduction of housing due to high construction costs, the result is the same—making a bad housing climate even

worse for millions of Americans.

Every added dollar of expense makes a real difference.

A price increase of even just $1,000 will price out over

140,000 households from the market. See NAHB PricedOut Estimates for 2023, NAHB (March 2023), at 1.8 In context, this prevents over 9,000 households in a state like

Texas from being able to afford a home. Id. at 4. The Consumer Furnace Rule is worsening the housing affordability problem and putting safe and adequate housing beyond

the reach of many Americans.

6

CONCLUSION

The petition for a writ of certiorari should be granted.

https://www.nahb.org/-/media/NAHB/news-and-economics/docs/housing-economics-plus/special-studies/2021/special-studygovernment-regulation-in-the-price-of-a-new-home-may2021.pdf?rev=29975254e5d5423791d6b3558881227b.

6

https://www.nmhc.org/research-insight/research-report/nmhcnahb-cost-of-regulations-report/.

7

https://www.nahb.org/-/media/NAHB/news-and-economics/docs/housing-economics-plus/special-studies/2023/special-studynahb-priced-out-estimates-for-2023-march-2023.pdf.

8

15

Respectfully Submitted.

DANIEL B. RANKIN

BAKER BOTTS L.L.P.

401 South 1st Street

Suite 1300

Austin, Texas 78704

(512) 322-2673

J. MARK LITTLE

Counsel of Record

BAKER BOTTS L.L.P.

910 Louisiana St.

Houston, TX 77002

(713) 229-1489

mark.little@bakerbotts.com

Counsel for Amici Curiae National Apartment Association,

National Multifamily Housing Council, and Manufactured

Housing Institute

February 2026