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.

DEPARTMENT OF ENERGY, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 22062

JEREMY C. MARWELL

Counsel of Record

NATHAN CAMPBELL

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6507

jmarwell@velaw.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Authorities .................................................... II

Interest of Amicus Curiae ........................................... 1

Introduction and Summary of Argument ................... 3

Argument ..................................................................... 6

I.

The D.C. Circuit’s reading of EPCA is wrong. ..... 6

A. Loper Bright requires courts to exercise

independent

judgment

when

interpreting statutes. ..................................... 6

B. The D.C. Circuit erred in determining

that EPCA does not protect noncondensing appliances. .................................. 9

C. The D.C. Circuit majority impermissibly

tipped the scales in the Department’s

favor. ............................................................. 15

II. Further review is warranted. ............................. 19

A. EPCA has substantial effects on

businesses,

consumers,

and

the

economy. ....................................................... 19

B. The D.C. Circuit’s approach undermines

regulatory predictability and stability. ....... 23

Conclusion.................................................................. 25

(I)

II

TABLE OF AUTHORITIES

Cases:

Page(s)

Batterton v. Francis,

432 U.S. 416 (1977) .................................................. 7

Beecham v. United States,

511 U.S. 368 (1994) ................................................ 11

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

Inc.,

467 U.S. 837 (1984) .............................................. 6, 7

CSX Transp., Inc. v. Ala. Dep’t of Revenue,

562 U.S. 277 (2011) ................................................ 14

Freeman v. Quicken Loans, Inc.,

566 U.S. 624 (2012) ................................................ 11

Gundy v. United States,

588 U.S. 128 (2019) .............................................. 8, 8

Judulang v. Holder,

565 U.S. 42 (2011) .................................................. 19

K Mart Corp. v. Cartier, Inc.,

486 U.S. 281 (1988) .................................................. 7

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ........ 3, 6, 7, 8, 16, 17, 18, 23, 24

Michigan v. EPA,

576 U.S. 743 (2015) .................................................. 9

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997) ................................................ 10

Smiley v. Citibank (S.D.), N.A.,

517 U.S. 735 (1996) .................................................. 6

United States v. Morton Salt Co.,

338 U.S. 632 (1950) ................................................ 23

Wayman v. Southard,

23 U.S. 1 (1825) ........................................................ 8

III

Statutes:

Page(s)

5 U.S.C. § 706 ............................................................ 23

29 U.S.C. § 213(a)(15) ............................................ 7, 17

42 U.S.C. § 607(a) ........................................................ 7

42 U.S.C. § 5846(a)(2) ............................................ 7, 17

42 U.S.C. § 6291(2) .................................................... 19

42 U.S.C. § 6292(a) .................................................... 19

42 U.S.C. § 6295 ........................................................ 17

42 U.S.C. § 6295(a) .................................................... 19

42 U.S.C. § 6295(d)(4)(A)(ii) ...................................... 12

42 U.S.C. § 6295(f)(1) ................................................ 12

42 U.S.C. § 6295(f)(2) ................................................ 12

42 U.S.C. § 6295(m) ............................................. 19, 24

42 U.S.C. § 6295(o)(4) .................................. 4, 9, 11, 13

42 U.S.C. § 6295(q)(1) ................................................ 13

42 U.S.C. § 6295(q)(1)(B) ....................................... 4, 10

42 U.S.C. § 6298 ........................................................ 17

42 U.S.C. § 6313 ........................................................ 17

42 U.S.C. § 6313(a)(6) .......................................... 19, 24

42 U.S.C. § 6313(a)(6)(B)(iii)(II)(aa) ................. 4, 9, 11

42 U.S.C. § 6313(c) .................................................... 12

42 U.S.C. § 6313(d)(1)................................................ 12

Energy Independence and Security Act of 2007,

Pub. L. No. 110-140, 121 Stat. 1492...................... 20

Energy Policy Act of 1992,

Pub. L. No. 102-486, 106 Stat. 2776...................... 10

IV

Statutes—Continued:

Page(s)

National Appliance Energy Conservation Act of

1987,

Pub. L. No. 100-12, 101 Stat. 103.......................... 10

Regulations:

10 C.F.R. § 430.32(a) ................................................. 21

10 C.F.R. § 430.32(c) .................................................. 22

10 C.F.R. § 430.32(h) ................................................. 21

10 C.F.R. § 430.32(i) .................................................. 22

Administrative Materials:

73 Fed. Reg. 58,772 (Oct. 7, 2008) ............................ 21

76 Fed. Reg. 22,454 (Apr. 21, 2011) .......................... 21

86 Fed. Reg. 4,776 (Jan. 15, 2021) ........................ 5, 25

86 Fed. Reg. 73,947 (Dec. 29, 2021) ................. 4, 5, 13,

.............................................................. 14, 16, 18, 25

88 Fed. Reg. 69,686 (Oct. 6, 2023) ........................ 4, 16

88 Fed. Reg. 87,502 (Dec. 18, 2023) ...................... 4, 16

Other Authorities:

Brett M. Kavanaugh, Fixing Statutory

Interpretation,

129 Harv. L. Rev. 2118 (2016) ............................... 23

Brian F. Mannix & Susan E. Dudley, The Limits

of Rationality as a Rationale for Regulation,

34(3) J. of Policy Analysis & Mgmt. 705

(2015), https://tinyurl.com/ypwzjxk3..................... 20

H.R. Rep. No. 100-11 (1987) ...................................... 22

V

Other Authorities—Continued:

Page(s)

Jean-Cyril Walker et al., DOE Continues HighPace Rulemakings with New and Amended

Test Procedures, Nat’l L. Rev. (Oct. 28, 2022),

https://perma.cc/5VSW-XLDV ............................... 20

Jennifer L. Selin & David E. Lewis, Sourcebook

of United States Executive Agencies (Admin.

Conf. of U.S., 2d ed. 2018) ....................................... 8

Off. of Info. and Regul. Affairs, Agency Rule List

– Spring 2025: Department of Energy,

https://perma.cc/A3VV-E6AH ................................ 20

Oxford American Dictionary (1980) .................... 10, 11

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

federation. It represents approximately 300,000 direct members and indirectly represents the interests

of more than 3 million companies and professional organizations of every size, in every industry sector, and

from every region of the country. An important function of the Chamber is to represent the interests of its

members in matters before Congress, the Executive

Branch, and the courts. To that end, the Chamber regularly files amicus curiae briefs in cases, like this one,

that raise issues of concern to the nation’s business

community.

Many of the Chamber’s members manufacture,

sell, or use products subject to energy and water efficiency standards promulgated by Respondent the U.S.

Department of Energy (“Department”) pursuant to the

Energy Policy and Conservation Act (“EPCA”). EPCA

reaches a wide range of appliances used every day by

American consumers and businesses—from hot water

heaters and furnaces, to air conditioners and heat

pumps, to dishwashers and clothes dryers, to kitchen

ranges and ovens. Amicus has a significant interest in

ensuring that the Department complies with EPCA,

including those statutory provisions that prevent the

1 Pursuant to Supreme Court Rule 37.6, amicus curiae state

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, their

members, or their counsel, made any monetary contribution intended to fund the preparation or submission of this brief. The

parties were given timely notice of amicus’s intent to file this

brief pursuant to Supreme Court Rule 37.2.

(1)

2

Department from imposing standards that would effectively pick winners and losers among product lines,

eliminating from U.S. markets products that consumers want or need.

The D.C. Circuit below failed to enforce these key

statutory provisions when it upheld the Department’s

decision to use EPCA to eliminate non-condensing gasfired furnaces and commercial water heaters from the

market. The court wrongly allowed the Department to

use a cramped interpretation of the statute that ignores the unique utility that non-condensing appliances provide consumers.

As Petitioners explain (Pet. 6-7), non-condensing

gas-fired appliances use unpowered vertical venting

systems, like chimneys, with the natural heat and

buoyancy of exhaust gases carrying them outside.

Condensing gas-fired appliances, by contrast, produce

exhaust gases that cannot naturally rise through vertical venting systems and instead typically require

powered fans to be moved through a horizontal vent.

Those systems can necessitate, for instance, installing

a new exhaust pipe through an exterior wall instead of

relying on an existing chimney. Condensing appliances, moreover, require specific plumbing to dispose

of liquid condensate. See Pet. App. 6a-7a. For these

reasons, costly, time-intensive, and disruptive renovations to existing residential and commercial spaces are

often necessary to accommodate condensing gas-fired

appliances (renovations that, in some structures, may

not even be possible). By curtailing the availability of

non-condensing appliances, the Department imposed

these burdens on a wide range of consumers.

3

As Judge Rao recognized in dissent, the D.C. Circuit majority allowed the Department to take this step

by “largely duck[ing]” the relevant legal question and

by “declaring that EPCA is ambiguous.” Pet. App. 57a58a. “The majority” then “t[ook] this ambiguity as a

license to defer to the Department.” Id. at 58a. That

approach to construing statutes is impermissible, as

this Court has said. See generally Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).

The Chamber has a significant interest not only in

the proper legal interpretation of EPCA, but also in

ensuring that courts use independent judgment to decide statutory interpretation questions and keep agencies within the bounds of their statutory authorities.

Policing those boundaries is especially important here

given the breadth of power wielded by the Department

under EPCA to shape markets for everyday appliances. The Court should grant certiorari.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case is a strong candidate for this Court’s review. The court below committed obvious legal error

in interpreting provisions of EPCA that Congress designed to protect the public from overregulation. The

statute authorizes the Department to promulgate energy and water efficiency standards that govern a wide

range of appliances that American consumers and

businesses use on an everyday basis—including air

conditioners, furnaces, dishwashers, clothes washers

and dryers, hot water heaters, microwaves, and showerheads. EPCA, though, contains several provisions

that block the Department from picking product win-

4

ners and losers at the expense of functionality and consumer choice. For example, the statute’s “unavailability” provision prohibits the Department from promulgating a new or amended efficiency standard that “is

likely to result in the unavailability * * * in any product type (or class) of performance characteristics (including reliability, features, sizes, capacities, and volumes).” 42 U.S.C. § 6313(a)(6)(B)(iii)(II)(aa) (emphasis added); see id. § 6295(o)(4) (nearly identical).2 To

that end, EPCA directs the Department to create separate product “classes,” with distinct efficiency standards, when products have unique “performance-related features” justifying different treatment. Id.

§ 6295(q)(1)(B). In doing so, the Department must

take due account of “the utility to the consumer of such

a feature.” Ibid.

In the challenged actions, the Department determined that non-condensing gas-fired furnaces and

commercial water heaters do not offer protected “performance characteristics.” See 86 Fed. Reg. 73,947,

73,951 (Dec. 29, 2021). The Department, in turn,

promulgated efficiency standards for furnaces and

commercial water heaters that non-condensing versions cannot meet, thereby effectively eradicating

them from the U.S. market. See generally 88 Fed.

Reg. 69,686 (Oct. 6, 2023); 88 Fed. Reg. 87,502 (Dec.

18, 2023). But installing condensing appliances in certain existing residential and commercial spaces can

The Department’s actions implicate both 42 U.S.C.

§§ 6313(a)(6)(B)(iii)(II)(aa) and 6295(o)(4). Although the two sections are not exactly identical, the parties below agreed, and the

panel proceeded on the understanding, that the provisions are

materially similar. See Pet. App. 6a n.3.

2

5

require costly, time-consuming, invasive, and disruptive renovations—renovations that may not even be

feasible for some homeowners and businesses. See

Pet. 6-7; see also Pet. App. 50a-51a (Rao, J., dissenting); 86 Fed. Reg. 4,776, 4,798, 4,816 (Jan. 15, 2021).

In the Department’s view, the costs and burdens of retrofits are irrelevant to the statutory “unavailability”

protection. The term “performance characteristic,” according to the Department, protects only “the benefits

and usefulness the feature provides to the consumer

while interacting with the product” after installation,

“not through design parameters impacting installation complexity, or costs.” 86 Fed. Reg. at 73,951. To

the Department, non-condensing appliances offer no

“unique utility” despite allowing customers to avoid

renovations. Ibid.

A majority of the D.C. Circuit panel upheld the Department’s interpretation. But as explained below,

the plain and best interpretation of EPCA commands

a contrary conclusion. See also Pet. 25-32; Pet. App.

51a-57a (Rao, J., dissenting). The panel’s mishandling

of this issue is an important matter: EPCA effectively

covers the full range of appliances used every day by

Americans and American businesses, shaping the

availability of key product lines and directly affecting

the national economy.

No less problematically, the D.C. Circuit majority

viewed EPCA’s unavailability provision as “ambigu[ous],” and strongly gestured towards the Department’s expertise to resolve the question. The majority

cited the “case-specific” nature of the question and the

“degree of discretion” purportedly afforded the Department, reframing the legal question as one on which the

agency should effectively receive deference. See Pet.

6

App. 14a, 16a, 22a, 27a. In Loper Bright, however, this

Court squarely held that lower courts must exercise

their “independent judgment in determining the

meaning of statutory provisions” and should ascertain

the “best reading” of the statute. 603 U.S. at 394-395.

The D.C. Circuit’s failure to do so here bolsters the

need for this Court’s review.

ARGUMENT

I.

The D.C. Circuit’s reading of EPCA is

wrong.

A.

Loper Bright requires courts to

exercise independent judgment when

interpreting statutes.

1. For decades, courts deferred to agencies’ reasonable interpretation of ambiguous statutes they are

charged with administering. See Chevron U.S.A., Inc.

v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-843

(1984). In Loper Bright, however, this Court decisively

rejected Chevron deference.

Analytically, the shift from Chevron deference to

Loper Bright “independent judgment” is meaningful.

By overruling Chevron, this Court rejected the underlying “presumption that Congress, when it left ambiguity in a statute meant for implementation by an

agency * * * desired the agency (rather than the

courts) to possess whatever degree of discretion the

ambiguity allows.” Smiley v. Citibank (S.D.), N.A.,

517 U.S. 735, 740-741 (1996). Instead, courts must follow “the APA’s demand that courts exercise independent judgment in construing statutes administered by

agencies.” Loper Bright, 603 U.S. at 406. “Independent judgment” calls for judges to do what they otherwise would do in cases not involving a federal agency:

7

resolve interpretive questions by applying the traditional tools of statutory construction. Doing so, courts

must “ascertain[] the plain meaning of the statute,”

looking “to the particular statutory language at issue,

as well as the language and design of the statute as a

whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281,

291 (1988). Courts must identify the “best reading of

the statute,” as “if no agency were involved.” Loper

Bright, 603 U.S. at 400 (citing Chevron, 467 U.S. at

843 n.11).

2. Loper Bright cabined the circumstances in

which a court may recognize a “degree of discretion” in

the agency. Id. at 394. For instance, Congress may

have vested “an agency [with] the authority to give

meaning to a particular statutory term” through an

express statutory delegation. Id. at 394-395 & n.5 (citing 29 U.S.C. § 213(a)(15) (exemption from Fair Labor

Standards Act for employees having certain characteristics, “as such terms are defined and delimited by regulations of the Secretary”) and 42 U.S.C. § 5846(a)(2)

(notification requirement applicable to safety hazards

“as defined by regulations which the Commission shall

promulgate”)).3

That kind of specific authorization is distinct from

statutes that generically authorize agencies to engage

3 Loper Bright’s citation to Batterton v. Francis for this propo-

sition is instructive. In Batterton, a statute provided that the

term “unemployment,” for purposes of certain Social Security Act

provisions, would be “determined in accordance with standards

prescribed by the Secretary.” 432 U.S. 416, 419 (1977) (quoting

42 U.S.C. § 607(a) (1977)). Pursuant to that explicit delegation,

“Congress entrust[ed] to the Secretary, rather than to the courts,

the primary responsibility for interpreting the statutory term.”

Id. at 425.

8

in rulemaking or adjudication. Indeed, Congress has

given many, if not most, agencies general rulemaking

authority. See Jennifer L. Selin & David E. Lewis,

Sourcebook of United States Executive Agencies 118119 (Admin. Conf. of U.S., 2d ed. 2018). If rulemaking

authority were enough to justify judicial deference,

then Loper Bright’s overruling of Chevron would be

meaningless.

Loper Bright further explained that where Congress has granted an agency general rulemaking authority, a reviewing court—still exercising independent judgment—may, in certain circumstances, conclude that the best interpretation of the statute authorizes the agency to “fill up the details” or “regulate

subject to the limits imposed by a term or phrase that

leaves agencies with flexibility, such as ‘appropriate’

or ‘reasonable.’ ” 603 U.S. at 395 (internal quotation

marks and citations omitted). Yet, even in those circumstances, authority to “fill up the details” is not a

broad delegation for the agency to define statutory

terms, but rather permission to fill interstitial gaps in

a statutory scheme. 4 Furthermore, instances where

Bright’s citation to Wayman v. Southard, 23 U.S. 1

(1825), for this point is instructive. Wayman “upheld a statute

that instructed the federal courts to borrow state-court procedural rules but allowed them to make certain ‘alterations and additions.’ ” Gundy v. United States, 588 U.S. 128, 157 (2019) (Gorsuch, J., dissenting) (quoting Wayman, 23 U.S. at 31). The statute in Wayman distinguished between “important subjects,

which must be entirely regulated by the legislature itself, from

those of less interest, in which a general provision may be made,

and power given to those who are to act under such general provisions to fill up the details.” 23 U.S. at 43; see Gundy, 588 U.S.

4 Loper

9

Congress uses “capacious[]” phrases like “appropriate

and necessary,” see Michigan v. EPA, 576 U.S. 743,

752 (2015) (citation omitted), present a different circumstance not present here—but one in which a reviewing court nevertheless must exercise independent

judgment to determine the limits of those terms.

B.

The D.C. Circuit erred in determining

that EPCA does not protect noncondensing appliances.

The plain and best interpretation of EPCA protects non-condensing appliances, which provide utility

to consumers independent of the appliance’s general

function—such as through compatibility with existing,

standard chimney vents, or the fact that they require

no condensate drain or associated plumbing modifications. See Pet. 25-32; Pet. App. 51a-57a (Rao, J., dissenting). Under Loper Bright, that “best reading”

should decide the case.

1. The Department may not promulgate new or

amended efficiency standards that would cause the

“unavailability * * * in any product type (or class) of

performance characteristics (including reliability, features, sizes, capacities, and volumes).” 42 U.S.C.

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

§ 6295(o)(4). EPCA further requires the Department

to subdivide product categories, with differing efficiency standards, to protect performance-related features. In doing so, the Department “shall consider

such factors as the utility to the consumer of such a

at 157-158 (Gorsuch, J., dissenting). Authority to “fill up the details” of ordinary interstitial gaps that arise during implementation does not confer interpretive authority for consequential or

“important” matters.

10

feature.” Id. § 6295(q)(1)(B). All agreed below that the

ordinary meaning of the statutory term “performance

characteristic” is “broad” and covers any “product attribute that provides utility to consumers desiring to

use the product.” Pet. App. 15a (majority); see id. at

52a (Rao, J., dissenting).

Looking to ordinary meaning, see Robinson v.

Shell Oil Co., 519 U.S. 337, 340 (1997), “performance

characteristic” has considerable breadth. A “performance characteristic” is some “distinctive feature,”

Characteristic, Oxford American Dictionary 104

(1980); see also Character, Oxford American Dictionary 104 (1980) (a “qualit[y] that make[s] a * * * thing

what * * * it is and different from others”), that aids in

“the process or manner of performing,” Performance,

Oxford American Dictionary 496 (1980); see also Perform, Oxford American Dictionary 496 (1980) (“to

carry into effect, to accomplish, or to do,” or “to function”). “Utility,” found in the related provision of 42

U.S.C. § 6295(q)(1)(B), further broadens matters by

pointing to “usefulness” and “practical[ity].” Utility,

Oxford American Dictionary 765 (1980).5

Thus, a product “performance characteristic”

means some distinctive feature or quality that differentiates it from others, aids the product in performing

its function, and is useful or otherwise attractive to

5 Section 6295 was amended in 1987 to include the relevant

statutory language on performance characteristics and performance-related features. See National Appliance Energy Conservation Act of 1987, Pub. L. No. 100-12, § 5, 101 Stat. 103, 115,

116. Section 6313 was similarly amended in 1992. See Energy

Policy Act of 1992, Pub. L. No. 102-486, § 122(d), 106 Stat. 2776,

2813. Amicus provides contemporaneous authority as to the

plain meaning of the relevant statutory terms.

11

consumers. The term is easily broad enough to capture non-condensing technology’s compatibility with

existing, standard chimney vents and other exhaust

systems, allowing non-condensing appliances to fit

into existing living and commercial spaces without the

need for costly and invasive retrofits. That is no doubt

an attractive feature or quality—one that is valuable

and desirable to consumers and businesses.

2. The considerable breadth of the term “performance characteristic” is confirmed by surrounding

text. See Beecham v. United States, 511 U.S. 368, 372

(1994) (looking to “plain meaning of the whole statute,

not of isolated sentences”). In describing a performance characteristic, Congress provided an openended list: performance characteristics “includ[e] reliability, features, sizes, capacities, and volumes.” 42

U.S.C.

§ 6313(a)(6)(B)(iii)(II)(aa);

accord

id.

§ 6295(o)(4). This broadly written list captures product attributes that go beyond merely how a product

functions during direct consumer interaction.

For instance, the list includes “size[],” as a distinct

concept from “capacit[y]” (i.e., how much a product can

hold or produce) and “volume[]” (i.e., how much space

a product occupies). In this context, the term “size[]”

must have independent meaning, such as “the measurements or extent of something.” Size, Oxford American Dictionary 637 (1980); see Freeman v. Quicken

Loans, Inc., 566 U.S. 624, 635 (2012) (“favor[ing] that

interpretation which avoids surplusage”). By mitigating the need for burdensome retrofits to accommodate

a condensing appliance—such as installing horizontal

vents in a house to replace vertical venting, or plumbing to handle condensate—a non-condensing appli-

12

ance affords consumers unique utility (akin to the concept of size) by preserving existing living and commercial spaces. And the statutory list is non-exhaustive,

meaning it can capture other product characteristics

and attributes.

Further evidence for a broad interpretation of

“performance characteristic” is supplied by the initial,

product-specific efficiency standards that Congress included in EPCA. For those standards, Congress carefully subdivided classes of covered products according

to attributes related to size, installation, and physical

design—even where two categories arguably serve the

same general function (e.g., refrigeration, heating,

cooling). For instance, Congress separated mobile

home gas-fired furnaces from other residential furnaces, likely reflecting the different and not-easilyavoidable physical installation and venting considerations for mobile homes compared with other houses.

See 42 U.S.C. § 6295(f)(1)-(2). And Congress separated out “through-the-wall central air conditioners”

in explicit recognition that they are “designed to be installed totally or partially within a fixed size opening

in an exterior wall.” Id. § 6295(d)(4)(A)(ii). Congress

sought to preserve a product that conforms with existing spaces. Likewise with the separation between refrigerators, freezers, and automatic ice makers that

are remote (i.e., physically separated) condensing and

those that are self-contained condensing.

Id.

§ 6313(c), (d)(1). These statutory provisions evince

Congress’s recognition that the kinds of product features that merit preservation and protection include

those that consumers do not directly interact with after the products are installed.

13

Indeed, as Petitioners explain (Pet. 28-30), the Department has long recognized the utility of and need

to protect products that provide certain space- and installation-related benefits to consumers. See also infra Section II.A. The challenged Department actions

thus present a sharp and unexplained departure from,

rather than a furthering of, the accepted understanding of “performance characteristic” under EPCA.

3. The Department’s new, narrower interpretation of “performance characteristic,” upheld by the

D.C. Circuit majority, is incongruent with EPCA. According to the Department, non-condensing technology “does not provide unique utility to consumers distinct from an appliance’s function of providing heated

air or water.” 86 Fed. Reg. at 73,955; see Pet. App. 19a

(D.C. Circuit majority asserting that “the unique utility a consumer furnace or commercial water heater

provides to the consumer is that they either provide

hot air or hot water, respectively,” without regard to

“particular methods of venting”).

But EPCA requires the Department to make appropriate product distinctions for “any covered product

type (or class),” 42 U.S.C. § 6295(o)(4), or “any group

of covered products which have the same function or

intended use,” id. § 6295(q)(1). Congress, moreover,

directed the Department to prescribe different standards if it finds that “covered products within such [a]

group” have certain distinguishing “performance-related features,” after considering “the utility to the

consumer of such a feature.” Id. § 6295(q)(1) (emphasis added). Even if all products in a group have the

same basic function (e.g., refrigeration, heating, cooling), the Department must nevertheless draw distinctions based on products’ unique utility or performance-

14

related features. The contrary position—generalizing

to the point that products with the same overarching

function cannot be meaningfully subdivided, as if only

that one function were important enough to be worth

preserving—would “subvert” and “render * * * inoperative” EPCA’s consumer-protecting provisions. See

CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S.

277, 291 (2011) (citation omitted). Under the Department’s apparent logic, sustained by the D.C. Circuit

here, no covered product type could ever be subject to

varying efficiency standards—all furnaces provide the

function of heating space, all water heaters the function of heating water, all dishwashers the function of

washing dishes, all clothes dryers the function of drying clothes, and so on.

Likewise, the Department erred badly in asserting that “performance characteristic” protects only attributes that affect direct consumer interactions with

a product. See 86 Fed. Reg. at 73,951; Pet. App. 24a

(repeating the Department’s “consumer[] interaction”

framing (citation omitted)). EPCA covers a range of

products where direct consumer interaction, beyond

turning the appliance on or off (or up or down), is minimal. That is true of almost any heating or cooling appliance. But it does not follow that a consumer never

derives utility from other characteristics, such as installation. An average consumer may not understand

the technical minutiae involved with replacing a noncondensing appliance with a condensing appliance.

But consumers undoubtedly perceive and derive utility from avoiding costly and disruptive changes to

their living or commercial spaces. Those changes

could include spending thousands of dollars or more to

15

pay for retrofits; taking time off from work or other activities to accommodate contractor schedules and execute a major renovation project; and, not least, experiencing the disappointments and harms that arise from

an unwanted structural modification to a home or

workspace. Contractors, for example, might need to

break through exterior walls and basement concrete

slabs to install drainage pipes and sump pumps, or to

render precious interior space unusable to accommodate new venting and plumbing infrastructure.

***

In sum, it strains credulity to find, as did the D.C.

Circuit here, that the compatibility of non-condensing

technologies with existing, standard chimney vents

and other exhaust systems is not a “performance characteristic” that provides distinct utility to identifiable

subsets of consumers and businesses. Protecting that

product attribute affords consumers and businesses

the benefit of using desired appliances without sacrificing existing living and commercial spaces.

C.

The

D.C.

Circuit

majority

impermissibly tipped the scales in the

Department’s favor.

Although Loper Bright instructs courts to exercise

their independent judgment to determine the best

reading of statutes, the D.C. Circuit majority wrongly

placed a thumb on the scale in favor of the Department’s reading, further underscoring the need for this

Court’s review.

1. As Petitioners note (Pet. 3, 22), the parties

and judges below agreed that the Department’s actions would make non-condensing furnaces and commercial water heaters unavailable to consumers. See

16

Pet. App. 44a, 51a, 57a n.2 (Rao, J., dissenting). Because of that undisputed fact, EPCA’s unavailability

provisions were triggered, requiring consideration of

whether the outcome would render unavailable a protected “performance characteristic.” See id. at 51a-52a

(Rao, J., dissenting); id. at 14a-15a (majority) (proceeding directly to the question whether non-condensing appliances offer a protected performance characteristic). And it was undisputed that, for at least some

consumers and businesses, replacing a non-condensing appliance with a condensing appliance would be

costly and would result in the temporary or permanent

loss of living and commercial space. See, e.g., 86 Fed.

Reg. at 73,960, 73,962; 88 Fed. Reg. at 69,744, 69,75069,751; 88 Fed. Reg. at 87,565; see also Pet. App. 6a,

17a, 25a-26a; id. at 44a-45a, 58a (Rao, J., dissenting).

The D.C. Circuit was therefore presented with a

discrete legal question: whether non-condensing technology’s compatibility with existing venting infrastructure qualifies as a protected performance characteristic under EPCA. That is precisely the type of

question within “the proper and peculiar province of

the courts.” Loper Bright, 603 U.S. at 385 (citation

omitted).

2. Yet the majority “duck[ed]” this dispositive legal question, citing “ambiguity” in the statute, and instead “defer[red] to the Department.” Pet. App. 58a

(Rao, J., dissenting). That error bolsters the case for

this Court’s review.

The panel majority reasoned that EPCA grants

the Department “ ‘a degree of discretion’ to decide what

constitutes a performance characteristic or feature under EPCA.” Pet. App. 14a (quoting Loper Bright, 603

17

U.S. at 394). But Congress did not explicitly or specifically delegate interpretive authority to the Department to define operative terms, as in the situations

discussed in Loper Bright. See 603 U.S. at 394-395.

In particular, Congress did not expressly vest the Department with authority to define or give meaning to

particular statutory terms. Compare id. at 394-395

n.5 (discussing 29 U.S.C. § 213(a)(15)’s reference to

terms “as * * * defined and delimited by regulations of

the Secretary [of Labor]” and 42 U.S.C. § 5846(a)(2)’s

reference to standards “as defined by regulations

which the [Nuclear Regulatory] Commission shall

promulgate”), with 42 U.S.C. §§ 6295, 6313 (no similar

language for terms such as “performance characteristic”).

Nor does the mere existence of general rulemaking authority, see 42 U.S.C. § 6298, delegate such significant interpretative authority. Loper Bright, 603

U.S. at 394-395; see supra pp. 7-8. If it were, given

that almost every agency possesses general rulemaking authority to some degree, courts would rarely have

occasion to exercise “independent judgment.” A limited delegation to “fill up the details” of a statutory

scheme, id. at 395, should not be read in a manner that

would consume the Loper Bright rule.

Finally, rather than capacious, open-ended terms

like “appropriate” or “reasonable” that “leave[] agencies with flexibility,” id. at 395, EPCA uses “performance characteristic” and “utility,” which convey ascertainable meanings and limits and readily permit a

court to exercise “independent judgment.” Even the

D.C. Circuit panel majority did not suggest otherwise.

See Pet. App. 15a-16a. If the mere fact that a word or

phrase is susceptible to multiple possible readings

18

were enough to trigger a “degree of discretion,” Loper

Bright, 603 U.S. at 394, that would effectively resurrect Chevron deference.

The majority also reasoned that the question of

what constitutes a performance characteristic is, in

the panel’s view, “case-specific”—a framing that appears to sound in ambiguity and Chevron. Pet. App.

16a (quoting 86 Fed. Reg. at 73,948). But that is true

of almost any interpretive question that arises in the

context of a specific case or controversy. See Pet. 1718. Statutory interpretation in the administrative

context rarely, if ever, occurs in a vacuum—some type

of agency action is generally required to give rise to a

legal dispute. In its next breath, the majority identified the relevant EPCA provisions as “ambigu[ous].”

Pet. App. 18a. But it remains the job of courts, not

agencies, to “resolve the ambiguity” using their “best

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

The majority’s interpretative errors did not end

there. At times, the panel improperly attempted to reframe the dispute as one of substantial evidence and

arbitrary-and-capricious review, asserting that Petitioners “failed to carry th[e] burden” to prove that noncondensing appliances have a protected performance

characteristic. Pet. App. 22a; see id. at 27a (“[T]he record fails to support Petitioners’ claim that condensing

consumer furnaces and commercial water heaters are

not ‘substantially the same’ as their non-condensing

counterparts.”). But whether an efficiency standard

will render unavailable a product and its protected

performance characteristic is a factual question—and

one undisputed here. That inquiry is distinct from the

purely legal question of whether EPCA protects an asserted product characteristic. See Pet. App. 57a (Rao,

19

J., dissenting); cf. Judulang v. Holder, 565 U.S. 42, 52

n.7 (2011) (finding State Farm framework inapt to review agency’s “interpretation of [] statutory language”).

II.

Further review is warranted.

A.

EPCA has

businesses,

economy.

substantial

consumers,

effects on

and

the

The interpretation of EPCA at issue in this case extends far beyond the specific subject matter of furnaces and water heaters. See Pet. 21-25. Furthermore, proper interpretation of the bounds on the Department’s EPCA authority is key to ensuring that the

Department cannot arbitrarily pick winners and losers, at the expense of consumer utility and choice.

By its terms, EPCA applies to a wide range of “covered products.” 42 U.S.C. §§ 6292(a), 6295(a). As

noted above, that scope captures everyday appliances

like air conditioners, heat pumps, dishwashers,

clothes dryers, microwaves, kitchen ranges, and showerheads. See generally id. §§ 6291(2), 6292(a) (19 categories of “covered products” plus “[a]ny other type of

consumer product which the Secretary classifies as a

covered product”). It does not risk overstatement to

say that the Department’s work under EPCA touches

the day-to-day life of almost every American individual, family, and business.

The Department, moreover, is required to revisit

existing standards, either periodically or upon certain

triggering events. See id. §§ 6295(m), 6313(a)(6). Perhaps unsurprisingly, the number of EPCA efficiency

standards has increased rapidly over time, particu-

20

larly since Congress substantially amended the statute in 2007. See Energy Independence and Security

Act of 2007, Pub. L. No. 110-140, 121 Stat. 1492. In

the nearly two-decade period between 1987 and 2006,

the Department issued a total of seven energy efficiency standards, or about one new standard every two

or three years. Between 2007 and 2014, by contrast,

the Department issued twenty-five standards, or

about three every year. See Brian F. Mannix & Susan

E. Dudley, The Limits of Rationality as a Rationale for

Regulation, 34(3) J. of Policy Analysis & Mgmt. 705,

706 (2015) (Figure 1), https://tinyurl.com/ypwzjxk3.

That pace has not slowed. In the most recent Unified Agenda published by the Office of Information and

Regulatory Affairs, the Department reports over 20

energy conservation standards in the proposed or final

rule stage. See Off. of Info. and Regul. Affairs, Agency

Rule List – Spring 2025: Department of Energy,

https://perma.cc/A3VV-E6AH (last visited Feb. 4,

2026); see also Jean-Cyril Walker et al., DOE Continues High-Pace Rulemakings with New and Amended

Test Procedures, Nat’l L. Rev. (Oct. 28, 2022),

https://perma.cc/5VSW-XLDV (noting “over 40 [Department] regulatory actions governing the consumer

products category in the [] seven months” prior to October 2022). In such an active regulatory space, clarity

and consistency are particularly critical for manufacturers and users of regulated appliances and other

products.

The pervasiveness of EPCA regulations only

heightens the importance of this case. As Petitioners

explain (Pet. 22-23), the question of what constitutes

a “performance characteristic” and consumer “utility”

applies to appliances beyond furnaces and commercial

21

water heaters. Countless other appliances have variations that account for space- or installation-related

considerations.

The Department, for instance, recognizes sub-categories for residential clothes dryers that address several such considerations. “Standard” and “compact”

sizes account for space constraints. 120-volt and 240volt versions account for differences in the ways existing residences and buildings are wired. Vented and

ventless versions account for the inability of certain

living spaces (e.g., apartments) to accommodate dryer

vents. Gas- and electric-powered versions account for

existing utility hook-ups and consumer preference.

See generally 10 C.F.R. § 430.32(h); see also 76 Fed.

Reg. 22,454, 22,485 (Apr. 21, 2011) (Department acknowledging the “unique utility that ventless clothes

dryers offer to consumers” and how “compact-size

clothes dryers provide utility to consumers by allowing

for installation in space-constrained environments”).

Moreover, those classifications have less to do with a

consumer’s direct interaction with the appliance during operation, and more to do with the space- and installation-related utility offered to consumers.

The Department itself previously held the

longstanding view—as it explained when promulgating separate standards for standard- and non-standard-sized package air conditioners and heat pumps—

that consumers should not “be forced to invest in costly

building modifications” to accommodate certain appliances in lieu of others. See 73 Fed. Reg. 58,772, 58,782

(Oct. 7, 2008). Other examples abound. See, e.g., 10

C.F.R. § 430.32(a) (separate standards for compact

versus standard refrigerators and refrigerator-freezers); id. § 430.32(c) (same for “split,” “single package,”

22

and “small-duct, high-velocity,” and “space-constrained” air conditioners and heat pumps); id.

§ 430.32(i) (same for fan, i.e., electric-powered, and

gravity, i.e., un-powered, direct heating equipment).

It is no stretch to conclude that the D.C. Circuit’s

endorsement of the Department’s contrary interpretation regarding non-condensing appliances calls into

question the sensible and longstanding classifications

that the Department has previously drawn, and on

which consumers and businesses alike have long relied. Indeed, the Department’s interpretation here—

limiting the protection afforded by EPCA’s unavailability provision so long as some theoretical substitute

exists—could be used as a model to eliminate certain

disfavored products, notwithstanding their consumer

utility or consumer demand. Such an arbitrary exercise of regulatory authority would likewise hurt businesses, whose products would be at risk of being ordered out of the market.

If the D.C. Circuit’s decision stands, upholding the

Department’s consumer choice-limiting interpretation, it will upset the careful balance drawn by Congress, which sought to protect consumer choice no less

than promoting energy efficiency. See H.R. Rep. No.

100-11, at 22-23 (1987). This Court’s review is needed

to avoid frustrating congressional intent in a regulatory field of wide-reaching impact.

23

B.

The

D.C.

Circuit’s

approach

undermines regulatory predictability

and stability.

To the extent the D.C. Circuit majority failed to

faithfully apply Loper Bright, its approach risks undermining the values of administrative predictability

and stability that Loper Bright promotes.

In the Administrative Procedure Act (“APA”),

Congress sought to impose “a check upon administrators whose zeal might otherwise have carried them to

excesses not contemplated in legislation creating their

offices.” Loper Bright, 603 U.S. at 391 (quoting United

States v. Morton Salt Co., 338 U.S. 632, 644 (1950)).

When looking to advance their preferred policies—

sometimes, selectively so—federal agencies possess an

“inherent aggressiveness” to see their goals met. Brett

M. Kavanaugh, Fixing Statutory Interpretation, 129

Harv. L. Rev. 2118, 2151 (2016). To that end, as a

check on federal agencies, the APA codifies “the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment.”

Loper Bright, 603 U.S. at 391-392; see 5 U.S.C. § 706.

By overruling Chevron, this Court reinforced that

proposition. And the Court underscored that the APA,

and courts’ role in deciding legal questions, serve a stability-enhancing function. The Court emphasized that

Chevron deference long failed to “safeguard[] reliance

interests” in agency-administered legal regimes.

Loper Bright, 603 U.S. at 410. Instead, Chevron enabled regulatory whiplash by providing an agency “a license * * * to change positions,” cabined only by the

APA’s prohibition on unexplained inconsistency. Ibid.

24

Chevron compelled courts to defer to agency flip-flops,

so long as each successive interpretation remained

within a sometimes-ill-defined zone of ambiguity.

This attribute “foster[ed] unwarranted instability in

the law, leaving those attempting to plan around

agency action in an eternal fog of uncertainty.” Ibid.

This Court’s emphasis on reliance interests in

Loper Bright was appropriate. Businesses depend on

clear, predictable rules when planning their operations, developing their product lines, and making investment decisions. Eliminating undue deference to

agencies enhances stability in the law and promotes

long-term decision-making.

This is particularly true regarding EPCA, which

authorizes the Department to promulgate new and

amended efficiency standards that can dictate which

products a company may manufacture and sell to consumers. EPCA’s requirement that the Department

regularly reevaluate efficiency standards, see 42

U.S.C. §§ 6295(m), 6313(a)(6), opens the door for surprising changes to product markets, particularly if the

statutory boundaries on the Department’s standardsetting power are not enforced. The sudden unavailability of a line of products can be highly disruptive to

consumers and businesses alike.

This case illustrates this reality, highlighting the

danger of regulatory whiplash. See Pet. App. 48a

(Rao, J., dissenting) (“The Department’s approach to

these appliances has flip-flopped across administrations.”). In January 2021, the Department determined

that non-condensing technology, including its compatibility with existing, standard chimney vents and

25

other exhaust systems, constituted a protected performance characteristic. See generally 86 Fed. Reg.

4,776. Less than a year later, in one of the actions

challenged here, the Department reached the exact opposite conclusion. See generally 86 Fed. Reg. 73,947.

The statutory language had not changed; the only salient change was that a new administration had assumed office. After Loper Bright, agencies are not allowed to make law in this fashion anymore.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted.

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 22062

JEREMY C. MARWELL

Counsel of Record

NATHAN CAMPBELL

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6507

jmarwell@velaw.com

Counsel for Amicus Curiae

FEBRUARY 2026