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.

UNITED STATES 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 AMICUS CURIAE

WM TECHNOLOGIES, LLC

IN SUPPORT OF PETITIONERS

Kendra N. Beckwith

Counsel of Record

WOMBLE BOND DICKINSON (US) LLP

1601 19th Street, Suite 1000

Denver, CO 80202

(303) 623-9000

kendra.beckwith@wbd-us.com

February 23, 2026

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICUS CURIAE. .................. 1

INTRODUCTION ....................................................... 2

BACKGROUND .......................................................... 5

SUMMARY OF THE ARGUMENT ........................... 8

ARGUMENT ............................................................. 10

I.

The Opinion Conflicts With Loper Bright,

Presenting an Important Question of

Federal Law.................................................... 10

A. EPCA’s Statutory Framework ................. 10

B. The D.C. Circuit Improperly Defers to

DOE’s “Expertise” on a Purely Legal

Question of Statutory Interpretation ....... 11

C. The Opinion Creates Instability .............. 13

D. Whether Venting Structures Are a

Performance Characteristic Influences

Future Rulemakings ................................. 16

E. DOE’s Interpretation Erodes EPCA’s

Protection of Consumer Choice ................ 17

II. The Opinion Harms Consumers

Nationwide ..................................................... 20

A. Banning Non-Condensing Appliances

Restricts Consumer Choice ...................... 21

B. Lower-Income Consumers Bear the

Brunt of DOE’s Rulemaking .................... 23

ii

TABLE OF CONTENTS (Cont.)

Page

III. The Opinion Harms American

Manufacturers and Workers ......................... 25

CONCLUSION.......................................................... 27

iii

TABLE OF AUTHORITIES

CASES

TABLE OF AUTHORITIES

Page

Am. Gas Ass’n v. U.S. Dep’t of Energy,

157 F.4th 476 (D.C. Cir. 2025) ......... 2, 4, 7, 8, 10,

............................................. 11, 12, 15, 17, 18, 22

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................... 11

Loper Bright Enterprises v. Raimondo,

144 S.Ct. 2244 (2024) ..................... 4, 8-13, 16, 17

Louisiana v. U.S. Dep’t of Energy,

90 F.4th 461 (5th Cir. 2024)........................ 16, 17

McDonnell v. United States,

579 U.S. 550 (2016) ........................................... 18

McLaughlin Chiropractic Assocs., Inc. v.

McKesson Corp., 145 S.Ct. 2006 (2025) ............ 12

STATUTES

42 U.S.C. § 6201(5) ..................................................... 5

42 U.S.C. § 6295(a)(1)–(2) ........................................... 5

42 U.S.C. § 6295(o)(1) ............................................... 16

42 U.S.C. § 6295(o)(2)(B)(i) ................................. 17, 20

42 U.S.C. § 6295(o)(2)(B)(i)(IV) ................................ 17

42 U.S.C. § 6295(o)(4) ................. 5, 7, 8, 10, 17, 18, 19

42 U.S.C. § 6295(q)(1) ................................................. 6

42 U.S.C. § 6302 .......................................................... 7

42 U.S.C. § 6303 .......................................................... 7

42 U.S.C. § 6313(a)(6)(B)(ii) ............................... 17, 20

iv

TABLE OF AUTHORITIES (Cont.)

Page

42 U.S.C. § 6313(a)(6)(B)(iii)(II)(aa)..................... 7, 18

REGULATIONS

Energy Conservation Program for Appliance

Standards: Energy Conservation

Standards for Residential Furnaces and

Commercial Water Heaters, 86 Fed. Reg.

4776 (Jan. 15, 2021) ...................................... 6, 15

Energy Conservation Program for Appliance

Standards: Energy Conservation

Standards for Residential Furnaces and

Commercial Water Heaters, 86 Fed. Reg.

73947 (Dec. 29, 2021) ............ 5, 6, 7, 8, 15, 18, 20

Energy Conservation Program: Energy

Conservation Standards for Commercial

Water Heating Equipment, 88 Fed. Reg.

69686 (Oct. 6, 2023) ......................................... 6, 7

Energy Conservation Standards for

Consumer Furnaces, 88 Fed. Reg. 87502

(Dec. 18, 2023) ........................................... 7, 8, 20

OTHER AUTHORITIES

American Gas Association, et al.,

Joint Comment Letter on Proposed Rule,

Department of Energy; Energy

Conservation Program: Energy

Conservation Standards for Consumer

Furnaces (Oct. 6, 2022), https://www.

regulations.gov/docket/EERE-2014-BTSTD-0031/comments?filter=EERE-2014BT-STD-0031-0391 ................................ 19, 21, 24

v

TABLE OF AUTHORITIES (Cont.)

Page

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal

Texts § 31 (2012) ................................................ 18

Department of Energy, Preliminary Technical

Support Document - Commercial

Packaged Boilers for Energy Conservation

Standards for Commercial Packaged

Boilers, Appendix 8-D (Nov. 26, 2014),

https://www.regulations.gov/document/

EERE-2013-BT-STD-0030-0027 ....... 3, 14, 19, 25

Peter Whoriskey,

Light Bulb Factory Closes; End of Era for

U.S. Means More Jobs Overseas, WASH.

POST (Sep. 8, 2010, at 9:48 PM), https://

www.washingtonpost.com/wp-dyn/

content/article/2010/09/07/

AR2010090706933_pf.html [https://

perma.cc/YKE5-D6ZM] ..................................... 26

U.S. Dep’t of Energy,

Commercial Water Heating Equipment,

https:/ /www.energy.gov/eere/buildings/

commercial-water-heating-equipment

[https://perma.cc/GZE7-FH3D] (last

visited Feb. 19, 2026) .......................................... 2

U.S. Dep’t of Energy,

Consumer Furnaces, https:/ /www.energy.

gov/eere/buildings/consumer-furnaces

[https://perma.cc/2RQS-EC82] (last visited

Feb. 19, 2026) ...................................................... 3

vi

TABLE OF AUTHORITIES (Cont.)

Page

U.S. Environmental Protection Agency,

Commercial Boilers: Optimize Efficiency

with Condensing Boilers and Low Return

Water Temps, Energy Star (May 2020),

https://www.energystar.gov/sites/default/

files/asset/document/ENERGY%

20STAR%20Commercial%20Boiler%

20Design%20Guide.pdf [https://perma.cc/

5WER-C4ZN] ..................................................... 14

Understanding Commercial Condensing vs.

Non-Condensing Appliances, PATTERSONKELLEY SOLS. BLOG (Feb. 17, 2025), https:/

/info.pattersonkelley.com/blog/

commercial-condensing-vs.-noncondensing-appliances [https://perma.cc/

PM8T-B6R9] .................................................... 3, 4

Weil-McLain,

About Us: Weil-McLain Branded

Products, https://careers.spx.com/WM/

content/About-Us/?locale=en_US [https://

perma.cc/QCK9-K336] (last visited Feb.

18, 2026) ............................................................ 26

Weil-McLain,

CGa Gas Boiler Series 3, https://www.

weil-mclain.com/products/cga-gas-boilerseries-3/ [https://perma.cc/W3EC-3KWU]

(last visited Feb. 18, 2026) .................................. 3

Weil-McLain,

Comment Letter on Proposed Interpretive

Rule for Energy Conservation Standards

for Residential Furnaces and Commercial

Water Heaters (Sep. 9, 2019), https://www.

vii

TABLE OF AUTHORITIES (Cont.)

Page

regulations.gov/comment/EERE-2018-BTSTD-0018-0086 ............................................ 15, 16

Weil-McLain,

Elm Street School, https://www.weilmclain.com/news/elm-street-school-2/

[https://perma.cc/8X86-5AHG] (last

visited Feb. 19, 2026) ........................................ 21

Weil-McLain, et al.,

Joint Comment Letter on Proposed Rule

on Energy Conservation Program: Energy

Conservation Standards for Consumer

Furnaces (Oct. 6, 2022), https://www.

regulations.gov/comment/EERE-2014-BTSTD-0031-0386 ............................................ 22, 23

Weil-McLain,

From Cupcakes to Comfort: Weil-McLain’s

Enduring Legacy Powers 45-Year

Residential and Culinary Odyssey, https://

www.weil-mclain.com/news/fromcupcakes-to-comfort-weil-mclainsenduring-legacy-powers-45-yearresidential-and-culinary-odyssey/ [https://

perma.cc/HPZ7-5YNZ] (last visited Feb.

19, 2026) ............................................................ 21

Weil-McLain,

Seven Telltale Signs Your Boiler Needs to

be Replaced, https://www.weil-mclain.

com/news/seven-telltale-signs-your-boilerneeds-to-be-replaced/ [https://perma.cc/

R937-5DLL] (last visited Feb. 18, 2026)... 2, 4, 20

viii

TABLE OF AUTHORITIES (Cont.)

Page

Weil-McLain,

Weil-McLain Design-Enhanced

Commercial Cast Iron Boiler Product

Lines Meets New US Department of

Energy Regulations with Enhanced Boiler

Efficiencies (Feb. 28, 2023), https://www.

weil-mclain.com/news/weil-mclain-designenhanced-commercial-cast-iron-boilerproduct-lines-meets-new-us-departmentof-energy-regulations-with-enhancedboiler-efficiencies-2/ [https://perma.cc/

F39L-QUCJ] ...................................................... 23

Weil-McLain,

Weil-McLain Foundry Heritage in

Michigan City (YouTube, Jan. 31, 2024),

https://www.youtube.com/watch?v=

4JMxF7EsHq4 [https://perma.cc/8VETNX5H] ................................................................ 26

WM Technologies, LLC,

Comment Letter on Interim Final Rule on

Adoption and Procedures of the Section

232 Steel and Aluminum Tariff Inclusions

Process (June 12, 2025), https://www.

regulations.gov/comment/BIS-2025-00230075 .............................................................. 25, 26

1

INTEREST OF THE AMICUS CURIAE

WM TECHNOLOGIES, LLC1

Isadora and Benjamin Weil founded Weil Brothers

in Chicago in 1881. In 1918, the brothers acquired

supplier J.H. McLain Company, and the Weil-McLain

brand was born. The brand presently operates under

WM Technologies, LLC. For over 100 years, it has been

the leading North American brand of comfort heating

systems for residential, commercial, and institutional

buildings and the largest brand of non-condensing

boilers in North America.

WM Technologies is interested in the outcome of

this case because its product portfolio includes boilers

that use the same non-condensing technology the

Department of Energy (“DOE”) regulations ban here.

This gives WM Technologies unique experience with

both condensing and non-condensing technology and

specialized industry knowledge. WM Technologies frequently comments on DOE rulemaking in this area. It

offers this brief to explain the venting mechanisms,

space-related attributes, and installation factors at

issue. It also contextualizes the choice DOE strips from

American consumers, harming WM Technologies and

its broad customer base, including schools, offices,

hotels, and other facilities.

1 Pursuant to Supreme Court Rule 37.2, WM Technologies provided

timely notice of its intent to file this brief to counsel for all parties.

Pursuant to Rule 37.6, no party, counsel for any party, or any

person other than WM Technologies and its counsel authored

this brief or made any monetary contribution for its preparation

or submission.

2

INTRODUCTION

This case concerns an issue of national importance:

American consumer choice in selecting commercial

water heaters and residential furnaces.

Traditionally, homes and commercial buildings use

gas furnaces and water heaters with non-condensing

technology. These appliances use a heat exchanger

where burning gas heats the air or water for space

heating, and the resulting exhaust is then moved out

through a venting system. Standard chimneys suffice

to vent non-condensing technology because the gas

expelled is hot enough to naturally draft upwards

through the chimney with no additional propulsion,

typically making them easy to vent. These appliances

are proven reliable, with lifespans that trend anywhere

from twenty to fifty years. Weil-McLain, Seven Telltale

Signs Your Boiler Needs to be Replaced, https://www.

weil-mclain.com/news/seven-telltale-signs-yourboiler-needs-to-be-replaced/ [https://perma.cc/R9375DLL] (last visited Feb. 18, 2026); see Am. Gas Ass’n

v. U.S. Dep’t of Energy, 157 F.4th 476, 505 (D.C. Cir.

2025) (Rao, J., dissenting) (discussing reliability). They

are lower cost to purchase and install and require

simple annual maintenance, but typically have energy

conservation, or efficiency2, ratings at approximately

2 To determine energy efficiency ratings, manufacturers must

follow the test procedures specified by DOE. See, e.g., U.S. Dep’t

of Energy, Commercial Water Heating Equipment, https:/ /www.

energy.gov/eere/buildings/commercial-water-heating-equipment

[https://perma.cc/GZE7-FH3D] (last visited Feb. 19, 2026); U.S.

Dep’t of Energy, Consumer Furnaces, https:/ /www.energy.gov/

3

eighty to eighty-five percent. See Understanding Commercial Condensing vs. Non-Condensing Appliances,

PATTERSON-KELLEY SOLS. BLOG (Feb. 17, 2025, at

11:00), https://info.pattersonkelley.com/blog/commercialcondensing-vs.-non-condensing-appliances [https://

perma.cc/PM8T-B6R9]; see also, e.g., Weil-McLain,

CGa Gas Boiler Series 3, https://www.weil-mclain.com/

products/cga-gas-boiler-series-3/ [https://perma.cc/

W3EC-3KWU] (last visited Feb. 18, 2026) (noting

eighty-four percent efficiency for a natural draft, gasfired boiler).

Condensing technology, which is more energy efficient, also exists. This technology uses one or two heat

exchangers that capture and recycle heat, which in turn

cools the exhaust to where it can no longer contain

moisture, leading to condensation. The cooler exhaust

is then routed through a fanned, horizontal vent and

the liquid condensate through a drain. See Department

of Energy, Preliminary Technical Support Document Commercial Packaged Boilers for Energy Conservation

Standards for Commercial Packaged Boilers, Appendix

8-D, at 8-D-2 to 8-D-3 (Nov. 26, 2014), https://www.

regulations.gov/document/EERE-2013-BT-STD-00300027; Understanding Commercial Condensing vs. NonCondensing Appliances, supra. Given their repeated

exposure to moisture, the components used in this technology must be immune to corrosion such as stainless

steel or plastic. See Preliminary Technical Support

Document, supra, at 8-D-3. The chimney venting

mechanism used in non-condensing appliances is

incompatible with condensing appliances in part

because the cooler exhaust is not hot enough to rise

eere/buildings/consumer-furnaces [https://perma.cc/2RQS-EC82]

(last visited Feb. 19, 2026).

4

through the chimney on its own. See Am. Gas Ass’n,

157 F.4th at 483. They are more expensive than noncondensing appliances to purchase and install and

typically require more maintenance. See Understanding

Commercial Condensing vs. Non-Condensing Appliances, supra. Additionally, while more efficient,

condensing appliances have shorter lifespans, typically

around fifteen years. See Seven Telltale Signs, supra.

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

Circuit’s opinion below bans an entire class of these

appliances based on erroneous legal analysis and an

illogical understanding of what constitutes “performance characteristics” under the Energy Policy and

Conservation Act (“EPCA”). Its rationale for favoring

condensing technology is contrary to this Court’s

directive in Loper Bright Enterprises v. Raimondo,

144 S.Ct. 2244 (2024), and common sense. It prohibits

the sale and distribution of commercial water heaters

and residential furnaces using non-condensing technology, stripping American consumers of their right to

purchase appliances that are demonstrably reliable, cost

effective, and have great utility. Compelling reasons

therefore exist for this Court’s review, and WM

Technologies urges this Court to grant the Petition.

5

BACKGROUND

EPCA is the framework created to, among other

things, “provide for improved energy efficiency” in

American products through federal energy conservation

standards and DOE regulations. 42 U.S.C. §§ 6201(5),

6295(a)(1)–(2). This purpose is not absolute. It is

balanced by a mandate to preserve consumer choice in

product features. For example, EPCA prevents DOE

from promulgating regulations that are “likely to

result in the unavailability in the United States in any

covered 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.”

Id. § 6295(o)(4). More simply, DOE cannot regulate into

extinction products with features American consumers

find desirable. Yet that is happening here.

In December 2021, DOE issued a final interpretive

rule under EPCA concerning energy conservation

standards for residential furnaces and commercial

water heaters (“Final Interpretive Rule”). Energy

Conservation Program for Appliance Standards: Energy

Conservation Standards for Residential Furnaces and

Commercial Water Heaters, 86 Fed. Reg. 73947 (Dec.

29, 2021). DOE’s purpose in doing so was to reconsider

what constitutes a “performance-related feature” under

EPCA in the context of condensing and non-condensing

technology in these appliances. Id. at 73947–48. DOE,

just eleven months earlier, had concluded that for

these appliances, non-condensing technology provides

unique performance characteristics that, if eliminated

from the market, would violate EPCA’s unavailability

6

provision. See Energy Conservation Program for

Appliance Standards: Energy Conservation Standards

for Residential Furnaces and Commercial Water

Heaters, 86 Fed. Reg. 4776, 4816 (Jan. 15, 2021). These

characteristics included (1) avoiding complex or costly

installations; (2) preventing the loss of usable space

possible when installing a condensing unit; and (3)

maintaining control over the type of fuel used by

preserving an affordable gas-powered option. Id.

But then DOE concluded these same features—

venting mechanisms, installation, and cost—provide

no “unique utility to consumers separate from an appliance’s function of providing heated air or water, as

applicable.” 86 Fed. Reg. at 73951. According to DOE,

“differences in cost or complexity of installation between

different methods of venting” are not “performancerelated feature[s]” under EPCA. Id.

Rather, whether a feature is “performance-related”

turns on the utility of the technology and “is determined

through the benefits and usefulness the feature provides

to the consumer while interacting with the product.”

Id. Here, the two technologies provide the same benefits

and usefulness, DOE concluded, because both provide

hot water or air. See id. at 73951. Accordingly, DOE

found no justification for separating non-condensing

and condensing appliances into separate classes under

42 U.S.C. § 6295(q)(1), which allows for differing energy

efficiency requirements among similar appliances.

Two years later, relying on its Final Interpretive

Rule, DOE published a final rule updating the energy

efficiency standards for commercial water heaters.

Energy Conservation Program: Energy Conservation

Standards for Commercial Water Heating Equipment,

88 Fed. Reg. 69686 (Oct. 6, 2023). There, DOE set min-

7

imum efficiency standards for all gas-fired commercial

water heaters at ninety-five percent. Id. at 69687. DOE

also promulgated a similar rule concerning residential

furnaces, which are also at issue here (collectively

“Final Rules”). Energy Conservation Program: Energy

Conservation Standards for Consumer Furnaces, 88

Fed. Reg. 87502 (Dec. 18, 2023). Non-condensing

commercial water heaters and furnaces cannot achieve

this level of efficiency.

As a result, DOE now bans manufacturers from

selling or distributing non-condensing commercial

water heaters and residential furnaces. Those that do

face penalties. 42 U.S.C. §§ 6302, 6303. This deprives

American consumers of the choice to continue using

non-condensing technology.

In a divided opinion, the D.C. Circuit upholds

DOE’s Final Interpretive Rule and Final Rules. Am.

Gas Ass’n, 157 F.4th 476. In doing so, the majority

gives great deference to DOE’s conclusions, refusing

to “second-guess DOE’s view” because “it rests on the

agency’s evaluations of scientific data within its area

of expertise.” Id. at 492–93 (citation and quotation

omitted). The majority concludes that DOE “has fulfilled

its duty to examine the relevant data and articulate a

satisfactory explanation for its conclusion[s].” Id. at

493 (citation and quotation omitted). Thus, “although

not identical, condensing [appliances] offer substantially

the same performance characteristics and features as

non-condensing options.” Id. (citing 42 U.S.C. §§ 6295

(o)(4), 6313(a)(6)(B)(iii)(II)(aa)).

The dissent concludes that DOE’s “cramped

interpretation of ‘performance characteristic’ cannot

be reconciled with the text and structure of EPCA.” Id.

at 505 (Rao, J., dissenting). “Nothing in EPCA suggests”

8

DOE’s restrictive interpretation of “‘performance characteristic’”—meaning only “features that provide utility

during operation”—is correct. Id. Rather, Congress

“explicitly protected the availability of sizes, capacities,

and volumes, terms that plainly encompass an appliance’s physical dimensions and compatibility with a

building’s existing infrastructure.” Id. (quotation omitted) (further concluding that “‘reliability’ similarly

refers to a performance characteristic that goes beyond

operation to consider a product’s long-term effectiveness”).

SUMMARY OF THE ARGUMENT

The D.C. Circuit considered whether DOE’s Final

Interpretive Rule and Final Rules violated EPCA’s

prohibition on energy regulations that are “likely to

result in the unavailability . . . of [product] performance characteristics.” 42 U.S.C. § 6295(o)(4). Relying

heavily on DOE’s determination that defining a

particular attribute of a product as a “performance

characteristic” is highly “‘case-specific,’” the court finds

no reason to “second-guess” DOE’s interpretation. Am.

Gas Ass’n, 157 F.4th at 488, 492–93 (citation omitted).

That decision is contrary to this Court’s precedent and

harms American consumers, manufacturers, and this

Court’s precedent. Two compelling reasons exist for

this Court to grant certiorari review.

First, the D.C. Circuit’s analysis conflicts with this

Court’s recent decision in Loper Bright. This Court

held just two years ago that federal courts must not

defer to agency interpretations of statutory terms.

Loper Bright, 144 S.Ct. at 2273. The D.C. Circuit revi-

9

vifies agency discretion for “case-specific” statutory

interpretations, apparently viewing the meaning of

“performance characteristics” as a fact-specific inquiry

rather than statutory definition. Loper Bright affords

no such loophole. And even if it did, this case would

not fit into it. This Court should correct this problematic

analysis and confirm Loper Bright’s dictate that statutory interpretation remains the province of courts

and “their independent judgment.” Id. Underscoring

this mistake, in relying on DOE’s interpretation, the

D.C. Circuit upholds a result directly contrary to EPCA’s

dual purpose: to promote energy efficiency while preserving consumer choice.

Second, the practical, nationwide costs to American

consumers and manufacturers of the DOE regulations

cannot be overstated. Banning non-condensing appliances here paves the path for banning other products

with the same technology, endangers manufacturers and

American jobs, and unduly burdens lower socioeconomic

consumers. There can be little doubt that this question

raises serious, national concerns worthy of this Court’s

attention.

10

ARGUMENT

I.

The Opinion Conflicts With Loper Bright,

Presenting an Important Question of Federal

Law

In Loper Bright, this Court eschewed the practice

of “defer[ring] to ‘permissible’ agency interpretations

of the statutes those agencies administer.” 144 S.Ct.

at 2254. The D.C. Circuit disregards this directive and

resurrects agency deference, concluding that EPCA

requires a “case-specific” analysis of products in determining what constitutes a performance characteristic

better left to DOE’s expertise. Am. Gas Ass’n, 157 F.4th

at 488 (citation and quotation omitted). In other words,

the meaning of the term “performance characteristics”

in § 6295(o)(4) varies depending upon the product to

which it applies.

Left untouched, this approach creates a loophole

in Loper Bright that undermines its holding and

allows courts to avoid their interpretive responsibility.

Moreover, the facts here demonstrate that denying

review will have precedential consequences.

A. EPCA’s Statutory Framework

Section 6295(o)(4) gives DOE discretion in evaluating whether a “standard is likely to result in the

unavailability in the United States in any covered

product type (or class) of performance characteristics”

that are “substantially the same as those generally

available in the United States at the time of [DOE’s]

finding.” Nothing in the plain language of this—or any

other—section gives DOE discretion to define what a

11

“performance characteristic[]” is. Cf. City of Arlington

v. FCC, 569 U.S. 290, 317 (2013) (Roberts, C.J., dissenting) (“Agencies are creatures of Congress; an

agency literally has no power to act unless and until

Congress confers power upon it.” (citation and quotation

omitted)).

B. The D.C. Circuit Improperly Defers to

DOE’s “Expertise” on a Purely Legal

Question of Statutory Interpretation

Loper Bright represented a return to “the unremarkable, yet elemental proposition . . . that courts

decide legal questions by applying their own judgment.”

144 S.Ct. at 2261 (interpreting the APA). “[C]ourts,

not agencies” are meant to “decide all relevant questions

of law arising on review of agency action.” Id. (citation

and quotation omitted). Agency decisions receive

deference only insofar as they engage in “policymaking

and factfinding,” unless the statute “expressly delegate[s] to an agency the authority to give meaning to

a particular statutory term,” “empower[s] an agency to

prescribe rules to fill up the details of a statutory

scheme,” or permits the agency “to regulate subject to the

limits imposed by a term or phrase that leaves agencies

with flexibility, such as ‘appropriate’ or ‘reasonable.’”

Id. at 2261, 2263 (citations and quotations omitted).

Despite this unambiguous limitation on agency

authority, the D.C. Circuit carves out an additional

slice of discretion for agencies: when a statutory term

is “‘very case-specific’” such that “‘[n]o single

definition could effectively capture the potential’” facts

that satisfy it, courts do not “second-guess” the

agency’s interpretation of the term. Am. Gas Ass’n, 157

F.4th at 488, 492 (citation omitted). This extra

deference “especially” applies when that view “rests on

12

the agency’s evaluations of scientific data within its

area of expertise.” Id. at 492–93 (citation and

quotation omitted). The problems with this approach

are self-evident.

Initially, the D.C. Circuit’s approach runs afoul

of basic principles of statutory interpretation. No

recognized canon of statutory construction allows the

meaning of an ambiguous statutory term to vary from

case to case or product to product simply because its

application is potentially widespread. The very purpose

of statutory interpretation is to give effect to Congress’s

intent, not vary that intent based on the circumstances

in which it is applied. See, e.g., McLaughlin Chiropractic

Assocs., Inc. v. McKesson Corp., 145 S.Ct. 2006, 2028 n.5

(2025) (Kagan, J., dissenting) (characterizing “ordinary

statutory interpretation” as “figur[ing] out what Congress wanted”).

Further, this approach confuses a difficult legal

question of statutory interpretation with a delegation

to agency expertise. See Loper Bright, 144 S.Ct. at

2267–68 (“The view that interpretation of ambiguous

statutory provisions amounts to policymaking . . . is

especially mistaken. . . . [R]esolution of statutory ambiguities involves legal interpretation.”). The D.C. Circuit

mistakes EPCA’s grant of discretion to DOE to determine whether interested parties (like WM Technologies)

have shown a regulation will result in the “unavailability” of a performance characteristic with an unfettered grant of discretion that cannot be “secondguess[ed]” in interpreting what constitutes a performance characteristic. See Am. Gas Ass’n, 157 F.4th at 492.

This disregards Loper Bright and sets a precedent

for other courts to do so. If lower courts follow suit—

and they are likely to, given the D.C. Circuit’s

13

prominence in administrative law—the decision creates

a third bucket in the administrative deference analysis:

(1) no deference for legal questions, (2) deference where

statutorily provided, and (3) deference where a term,

though subject to interpretation by the courts, contemplates fact-dependent analysis.

That third bucket introduces a new line-drawing

problem into federal law: how broad must a statutory

term be before courts may rely on the agency’s “casespecific” determination? Without guidance from this

Court, and faithful adherence to Loper Bright, lower

courts may begin to view legal questions requiring the

interpretation of broad statutory terms as invitations

to resuscitate a bygone era of agency deference.

C. The Opinion Creates Instability

Every question of statutory interpretation arises

from a “case-specific” factual scenario yet defines the

statute for future cases. By the very nature of the

American common law system, one opinion’s statutory

interpretation informs another. Deferring statutory

interpretation questions to agencies introduces uncertainty Loper Bright intended to erase.

This case exemplifies a seemingly fact-bound decision that reaches far beyond its immediate application.

The venting mechanism differences of these appliances

are critical to whether consumers can easily and immediately install them without modification to homes and

buildings. That determination applies equally to other

appliances. The D.C. Circuit’s conclusion that the term

“performance characteristics” is “very case-specific”

and entitled to agency deference sets a precedent for

its approach to other appliances. Put another way, if

venting mechanisms or installation readiness are not

14

performance characteristics for water heaters and

furnaces, they may not be for other products.

For example, non-condensing boilers also typically

use natural-draft chimneys. See Preliminary Technical

Support Document, supra, 8-D-2 to 8-D-3. The same

venting concerns that impact furnaces and water

heaters apply with equal force to boilers. Moreover,

boilers rely on plumbing and piping throughout a

building to heat its interior. Condensing boilers are

not always compatible with the existing systems in a

building that previously had a non-condensing unit, in

part because condensing boilers typically heat the water

to a lower temperature than non-condensing boilers.

U.S. Environmental Protection Agency, Commercial

Boilers: Optimize Efficiency with Condensing Boilers

and Low Return Water Temps, Energy Star (May 2020),

https://www.energystar.gov/sites/default/files/asset/

document/ENERGY%20STAR%20Commercial%

20Boiler%20Design%20Guide.pdf [https://perma.cc/

5WER-C4ZN].

The result: even if this older system works with a

condensing boiler, consumers may never see the

benefits of the increased efficiency because running

the unit in a system designed for hotter water requires

running it for longer and hotter water may prevent

the condensing that provides increased efficiency. See

id. So, to realize the efficiency gains of a condensing

unit, consumers may have to retrofit their entire home

or building. See id. But under the precedent set by the

rules and the opinion below, these concerns would

likely be considered irrelevant in the “performance

characteristics” analysis.

This case-by-case interpretation of a key term

under EPCA, combined with the lack of proper judicial

15

review on questions like this, leaves consumers and

manufacturers at the whim of changing DOE views on

energy efficiency (as the history here demonstrates).

As WM Technologies previously explained to DOE,

“EPCA had the foresight to realize significant advances

in technology will shift a market to higher technologies

over time. Therefore, the market should not be forcibly

changed through regulation in these instances.” WeilMcLain, Comment Letter on Proposed Interpretive

Rule for Energy Conservation Standards for Residential

Furnaces and Commercial Water Heaters, at 2 (Sep.

9, 2019), https://www.regulations.gov/comment/EERE2018-BT-STD-0018-0086 (emphasis added). But the

court’s “case-specific” exception would allow DOE to force

these changes any time it defined a product’s feature

as “not a performance characteristic.”

More pointedly, as DOE’s history here demonstrates, what falls into and out of the definition of

“performance characteristics” is subject to changing

agency interpretations. In 2021, DOE first published

an interpretive rule explaining that venting mechanisms were “performance characteristics” under EPCA.

Standards for Residential Furnaces and Commercial

Water Heaters, 86 Fed. Reg. 4776. But just a few

months later, DOE reversed course and issued the

Final Interpretive Rule. 86 Fed. Reg. 73947. This rule

represents a 180-degree change in less than a year,

simply because the agency made a policy-based decision about the interpretation of EPCA. See Am. Gas

Ass’n, 157 F.4th at 483–85 (describing the multiple

interpretive rules).

Because EPCA prohibits DOE from lowering

efficiency standards without meaningful court review,

manufacturers and consumers alike may have no

16

avenue to challenge rules that “forcibly change[]” the

product market. Weil-McLain, Comment Letter, supra, at

2. EPCA’s anti-backsliding provision is meant to keep

the markets from reversing course, not to force sudden

change. See Louisiana v. U.S. Dep’t of Energy, 90

F.4th 461, 476 (5th Cir. 2024) (“The anti-backsliding

provision generally prohibits DOE from issuing new

energy- and water-conservation standards that are

more lenient than legacy standards.” (citing 42 U.S.C.

§ 6295(o)(1)).

Improperly treating EPCA as a license to force

sudden change leaves manufacturers guessing. They

must try to predict when DOE will either force technology to leap forward or mandate that they abandon a

product. This guessing places manufacturers in a

compromised position, unsure where to invest their

time and money because a product might be deemed

obsolete by DOE next year, even if market demand for

that product remains high. If courts exercise their

interpretive role, they give manufacturers—and consumers—a way to push back against these inconsistent

whims and secure a steadfast interpretation of EPCA.

The alternative risks instability for the sake of courts

deferring to agencies on difficult questions.

D. Whether Venting Structures Are a

Performance Characteristic Influences

Future Rulemakings

Even if Loper Bright permitted a “case-specific”

exception, this case would not satisfy it. The underlying

question can be framed as whether integration into

existing structures is a “performance characteristic[]”

generally, not just whether “venting mechanisms, installation factors, or space-related” “attributes of small

furnaces and water heaters” count as “performance

17

characteristics.” Am. Gas Ass’n, 157 F.4th at 488

(emphasis added). The D.C. Circuit seems to nominally

recognize this question to some extent. See id. But, in

reality, it gives short shrift to the importance of

“installation factors.” See id. at 492. It dismisses the

installation question as one of “‘economic impact’” or

“‘initial charges,’” setting another dangerous precedent.

See id. (quoting 42 U.S.C. §§ 6295(o)(2)(B)(i), 6313(a)

(6)(B)(ii)).

“Installation factors” are more than just the increased cost to replace a non-condensing product with a

condensing one. The ability to easily install a replacement product means consumers will be able to use

their appliance immediately—a feature that surely

provides utility. Disregarding the importance of this

feature grants DOE greater license to impose energy

efficiency standards at great cost and disrespect to the

American consumer. This further imperils EPCA’s

clear intent to balance efficiency gains with consumer

realities and desires. Thus, whatever “case-specific”

exception could exist under Loper Bright, this case

does not satisfy it.

E. DOE’s Interpretation Erodes

Protection of Consumer Choice

EPCA’s

One of EPCA’s most fundamental features is that

it balances progress in energy efficiency with

preservation of consumer choice. See Louisiana, 90 F.4th

at 473 (“EPCA balances energy efficiency with the

availability of desirable ‘performance characteristics.’”

(first quoting 42 U.S.C. § 6295(o)(4), then citing 42

U.S.C. § 6295(o)(2)(B)(i)(IV)). Its statutory mandates

affirmatively prohibit DOE from promulgating standards that will make a performance characteristic

unavailable to consumers. See 42 U.S.C. § 6295(o)(4)

18

(prohibiting the Secretary from prescribing “an amended

or new standard” if it “is likely to result in the unavailability . . . of performance characteristics”).

The parties below agreed “that the plain text of

‘performance characteristic’ means a product attribute that provides utility to consumers desiring to use

the product” and has “to be about using the product.”

Am. Gas Ass’n, 157 F.4th at 487 (citation and quotations

omitted). But the D.C. Circuit pivots from the parties’

agreed definition, relying on the Final Interpretive

Rule to ultimately interpret this statutory term. Id.

Specifically, the court narrows the interpretation to

require that performance characteristics “relate[] to

‘the product’s useful output.’” Id. (quoting 2021 Interpretive Rule, 86 Fed. Reg. at 73955). This restrictive

interpretation is inconsistent with EPCA’s express

language and intent.

A product feature can “provide utility” outside of

its “useful output.” If performance characteristics

could not include features outside of “useful output,”

it would make little sense for size to be listed among

or alongside “performance characteristics” in EPCA.

See 42 U.S.C. §§ 6295(o)(4), 6313(a)(6)(B)(iii)(II)(aa).

Words are generally known by the company they keep.

See McDonnell v. United States, 579 U.S. 550, 568–69

(2016); see also Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts § 31,

p. 195 (2012) (“When [words] are associated in a context

suggesting that the words have something in common,

they should be assigned a permissible meaning that

makes them similar” especially when “grouped in a

list” (emphasis added) (quotation omitted)). So “performance characteristics” must share something in common

with “sizes”—as well as “features, . . . capacities, and

19

volumes.” 42 U.S.C. § 6295(o)(4). The most natural

through-line is that each of these terms impacts a

specific attribute that consumers find valuable, whether

a utility function, fit, or comparative advantage to

other products.

Venting mechanisms, for example, offer great utility

to a consumer replacing a non-condensing appliance and

exemplify the connection between “performance

characteristics” and “sizes.” The consumer can immediately use non-condensing appliances in older buildings

because there is no need to renovate or retrofit the

existing structure. On the other hand, replacing the

appliance with a condensing appliance may require

relining or restructuring chimneys, vent resizing, and

adding condensate piping, pumps, neutralizers, and

electrical outlets. See Preliminary Technical Support

Document, supra, at 8-D-7 to 8-D-8. These changes are

far more extensive and ultimately delay use of the

appliance, decreasing its utility. Venting, space-related

attributes, and installation factors are features that

consumers actively seek in replacing their appliances,

as evidenced by the simple fact that a market

continues to exist—and thrive—for non-condensing

commercial appliances. See American Gas Association,

et al., Joint Comment Letter on Proposed Rule, Department of Energy; Energy Conservation Program: Energy

Conservation Standards for Consumer Furnaces, at 1

(Oct. 6, 2022), https://www.regulations.gov/docket/

EERE-2014-BT-STD-0031/comments?filter=EERE2014-BT-STD-0031-0391. It would be odd, then, to

conclude that Congress intended for the size of products

to be a protected performance characteristic but not

the functional ability to install a product in the space

already provided in a building.

20

Moreover, condensing appliances generally have

a shorter lifespan than non-condensing ones. See Seven

Telltale Signs, supra. Thus, while immediate efficiency

gains may result from installing a condensing appliance,

replacement becomes more imminent. Not only must

consumers purchase a new appliance more often, they

must dispose of the old one, in turn increasing landfill

and technological waste. Discarding these realities is

surely not consistent with EPCA’s efficiency goals.

II. The Opinion Harms Consumers Nationwide

In deferring its statutory interpretation task to

DOE, the court allows DOE to functionally ban an

entire class of products that provide distinct utility to

consumers. This result is contrary to EPCA’s express

intent and presents a question of national importance,

particularly given its impact on American consumers.

EPCA is intended to balance steady progress

towards efficiency with consumer choice, not force wholesale and sudden changes in the product market.

EPCA requires DOE to consider seven factors just in

assessing whether a regulation is economically justified,

preventing rapid-scale adoption of energy efficiency

technology that creates negative, immediate economic

harms to manufacturers and consumers. See 42 U.S.C.

§§ 6295(o)(2)(B)(i); 6313(a)(6)(B)(ii). These, among other

factors, instruct that Congress sought to advance and

protect both energy efficiency and consumer choice,

not elevate one over the other.

DOE regulations like the Final Interpretive Rule

and Final Rules upend this balanced statutory scheme,

eliminating a cost-effective, reliable option for American

consumers, hitting hardest the consumers least resilient

to price fluctuations.

21

A. Banning Non-Condensing

Restricts Consumer Choice

Appliances

“[A]pproximately 40 percent of non-weatherized

natural gas furnaces shipped to customers are noncondensing furnaces that would be eliminated from

the marketplace” if DOE’s rules remain. American

Gas Association, et al., Joint Comment Letter, supra,

at 1. This would immediately eliminate an entire swath

of reliable appliances from the market. See WeilMcLain, From Cupcakes to Comfort: Weil-McLain’s

Enduring Legacy Powers 45-Year Residential and

Culinary Odyssey, https://www.weil-mclain.com/news/

from-cupcakes-to-comfort-weil-mclains-enduring-legacypowers-45-year-residential-and-culinary-odyssey/

[https://perma.cc/HPZ7-5YNZ] (last visited Feb. 19,

2026) (detailing case study of Weil-McLain non-condensing, oil-fired cast iron boiler installed in 1978 that

provided both domestic hot water and heat for nearly

forty-five years that only now requires replacement

due to “wear and tear” from the “extraordinary

workload it bore”); see also Elm Street School, WeilMcLain, https://www.weil-mclain.com/news/elm-streetschool-2/ [https://perma.cc/8X86-5AHG] (last visited

Feb. 19, 2026) (detailing recent installation of three

non-condensing commercial gas and oil boilers in

century-old school, offering up to 85.7 percent thermal

efficiencies, reducing fuel costs and providing

integration with the building management system).

The court rejects the notion that consumers consider

the immediate usability of their appliances by stating,

without support, that “[a]t a certain level, it is obvious

that consumers do not buy small furnaces or commercial

water heaters because of how the appliance vents. In

fact, venting is a quality that both condensing and

22

non-condensing appliances share.” Am. Gas Ass’n, 157

F.4th at 489. The fallacy in this statement is obvious.

It belies common sense to assume that potentially major

renovations to accommodate new venting, plastic tubing,

and draining are not features consumers consider in

purchasing an appliance. This is because “many residential applications simply can’t support upgrading the

existing venting system as would be required for nonnatural draft venting or higher efficiency products.

Specifically, the older population of homes and buildings

which were built with [c]himneys are not always conducive to significant changes in venting.” Weil-McLain,

et al., Joint Comment Letter on Proposed Rule on

Energy Conservation Program: Energy Conservation

Standards for Consumer Furnaces, at 5 (Oct. 6, 2022),

https://www.regulations.gov/comment/EERE-2014BT-STD-0031-0386.

A huge percentage of the United States population, especially on the East Coast and in the Midwest,

live in homes that will likely require retrofitting to

accommodate a condensing appliance but may not even

be compatible with that retrofitting. Some estimates

indicate that forty percent of homes in the United

States are more than fifty years old and ten percent

are more than ninety years old. Id. To put a finer point

on it, as of 2022, “the existing residential building

stock in at least seventeen states ha[d] twenty percent

or more of the homes and buildings which were built

before 1950.” Id. at 6. “The building stock of thirty-four

states have more than ten percent of their buildings

constructed prior to 1950.” Id. In these old and very

old homes, prior renovations may make it impossible

to alter the venting system. For example, common

venting (using the same vent for more than one

23

appliance) is more common in older buildings. Id. at

5. Adding a condensing appliance to that vent is likely

impossible, and the home’s design around a single vent

may make adding a new one impracticable. Given the

market demand for non-condensing appliances, the

D.C. Circuit’s dismissive conclusion that venting

mechanisms are not a feature consumers value defies

logic and EPCA’s purpose.

So too does the court’s implicit assumption that noncondensing technology cannot make gains in energy

efficiency. As recently as 2023, DOE mandated that commercial boilers manufactured after January 2023 meet

higher minimum efficiency standards. Weil-McLain’s

non-condensing cast iron boiler product lines, intended

for multi-family, municipal, education, religious, and

institutional facilities, met these standards, offering

thermal efficiencies up to eighty-seven percent and

combustion efficiencies up to eighty-eight percent. WeilMcLain Design-Enhanced Commercial Cast Iron Boiler

Product Lines Meets New US Department of Energy

Regulations with Enhanced Boiler Efficiencies, WeilMcLain (Feb. 28, 2023), https://www.weil-mclain.com/

news/weil-mclain-design-enhanced-commercialcast-iron-boiler-product-lines-meets-new-usdepartment-of-energy-regulations-with-enhancedboiler-efficiencies-2/ [https://perma.cc/F39L-QUCJ].

This, in turn, results in lower fuel consumption and

operating costs. This example, among numerous others,

demonstrates that efficiency gains can be made while

still balancing consumer demands.

B. Lower-Income Consumers Bear the Brunt

of DOE’s Rulemaking

The consequences of DOE’s regulations fall hardest

on vulnerable portions of the American population. In

24

addition to the sheer upfront cost of replacing a noncondensing appliance with a condensing one, apartments, multifamily dwellings, offices, schools, and

other older facilities are the most likely to be unable

to accommodate condensing appliances.

DOE is fully aware of this fact. Its own analysis

“shows that the proposal will negatively impact, i.e.,

increase costs for, millions of consumers that can least

afford it.” American Gas Association, et al., Joint

Comment Letter, supra, at 1–2. “Specifically, DOE’s data

shows that the proposal will result in higher overall costs

for 15 percent of senior-only households, 14 percent of

low-income households, and 20 percent of small business

consumers.” Id. “[F]or consumers with mobile homes, 22

percent of all customers would be negatively impacted,

including 15 percent of senior-only mobile home households and 13 percent of low-income mobile home households.” Id.

The cost of replacing a non-condensing appliance

with a condensing one is cumulative. It includes a more

expensive appliance, renovation or retrofit costs, and

lost usable space. “[M]illions of homes and businesses

were designed for noncondensing furnaces that use

atmospheric venting systems, which have been the

primary exhaust gas venting system in millions of

homes, apartments, and businesses for generations.”

Id. “Once DOE eliminates non-condensing furnaces as

an option, customers will need to update their existing

venting systems to accommodate” new appliances or

“switch to an electric” model, with “higher operating

costs and . . . upgrade[s] of home or business electrical

systems.” Id. For many consumers, the costs associated

with either option may be a heavy burden.

25

By way of example, the cost of resizing a venting

system ranges from $2,148 to $8,675, and relining

ranges from $2,255 to $9,041, depending on the product

class. See Preliminary Technical Support Document,

supra, at 8-D-6 to 8-D-7, Table 8-D-2.3 (Average

Venting Resizing and Chimney Relining Costs for

Natural Draft Boilers). Again, it bears emphasis—to

assume these costs are not factored into a consumer’s

utility calculation in purchasing a product belies

common sense.

Finally, consumers may not recoup those costs in

efficiency gain for years. Especially in warmer climates,

consumers may not run their appliance often enough

for the energy efficiency gains to compete with the cost

and burden of retrofitting a building. Moreover, even

a condensing appliance used frequently may provide

only marginal efficiency benefits if other aspects of a

building’s system, like plumbing or piping, are not

updated too.

III. The Opinion Harms American Manufacturers

and Workers

The opinion similarly threatens American manufacturers like WM Technologies. These DOE regulations

will lead to reductions in American jobs. Steady,

predictable environments are essential for business

success. WM Technologies, LLC, Comment Letter on

Interim Final Rule on Adoption and Procedures of the

Section 232 Steel and Aluminum Tariff Inclusions

Process, at 2 (June 12, 2025), https://www.regulations.

gov/comment/BIS-2025-0023-0075. Instability leads to

financial losses.

Dramatic changes concerning product availability,

like those in these regulations, can result in manu-

26

facturers shuttering their factories. Cf. Peter Whoriskey,

Light Bulb Factory Closes; End of Era for U.S. Means

More Jobs Overseas, WASH. POST (Sep. 8, 2010, at 9:48

PM), https://www.washingtonpost.com/wp-dyn/content/

article/2010/09/07/AR2010090706933_pf.html [https:/

/perma.cc/YKE5-D6ZM]. Indeed, eliminating approximately forty percent of a manufacturer’s product stream

essentially overnight has catastrophic consequences.

WM Technologies “is an American company that

employs both union and non-union workers across . . . its

U.S. production and development facilities.” WM Technologies, LLC, Comment Letter on Interim Final Rule,

supra, at 2. A forced shift to condensing appliances

“will drive up appliance costs and lead to job losses for

American workers.” See id. This harm is particularly

acute for WM Technologies, which operates its own

Michigan City, Indiana foundry to produce cast iron

heat exchangers used in non-condensing boilers. WeilMcLain, Weil-McLain Foundry Heritage in Michigan

City (YouTube, Jan. 31, 2024), https://www.youtube.com/

watch?v=4JMxF7EsHq4 [https://perma.cc/8VETNX5H]. That foundry employs skilled American workers

to cast and finish a critical part of the non-condensing

boilers, part of the nearly 300 manufacturing employees

of WM Technologies. Weil-McLain, About Us: WeilMcLain Branded Products, https://careers.spx.com/

WM/content/About-Us/?locale=en_US [https://perma.

cc/QCK9-K336] (last visited Feb. 18, 2026).

27

CONCLUSION

The opinion is legally and logically erroneous,

necessitating this Court’s review. WM Technologies

urges this Court to grant the Petition.

Respectfully submitted,

Kendra N. Beckwith

Counsel of Record

WOMBLE BOND DICKINSON (US) LLP

1601 19th Street, Suite 1000

Denver, CO 80202

(303) 623-9000

kendra.beckwith@wbd-us.com

Counsel for Amicus Curiae

February 23, 2026