Last November, a divided panel of the U.S. Court of Appeals for the D.C. Circuit upheld a Department of Energy energy efficiency standard for natural gas-powered consumer furnaces and commercial water heaters that effectively banned non-condensing units from the market. The panel decision might have been defensible (and understandable) in a Chevron world, but it (as Judge Rao’s dissent demonstrated) it was hard to reconcile with the approach to statutory interpretation dictated by Loper Bright Enterprises.
At the time, I wondered why the Trump Administration had allowed this case to go to judgment. It could have asked the D.C. Circuit to put any decision on hold while DOE reconsidered the rule, but it didn’t.
In January, a coalition of industry groups petitioned for certiorari in American Gas Association v. Department of Energy. Yesterday, the Solicitor General filed his response, asking the Court to GVR the case due to the D.C. Circuit’s error.
From the SG’s brief:
Petitioners contend (Pet. 25-30) that the Department’s December 2021 interpretive rule and resulting energy-conservation standards reflect an unduly narrow understanding of what constitutes a “performance characteristic[]” under EPCA. Following the change in Administration, the government agrees with that contention. The Court should accordingly grant the petition for a writ of certiorari, vacate the judgment below, and remand for further proceedings (GVR) in light of the government’s position in this brieft.
Granting the government’s request would send a message to the D.C. Circuit to take statutory interpretation more seriously and vindicate a powerful (and persuasive) Rao dissent. It would also save the Administration the time and trouble of trying to undo the rule in the shadow of the D.C. Circuit’s decision. As I noted last fall, the panel opinion could make it difficult for the Trump Administration to rescind or modify the rule on the grounds that the best interpretation of the statute does not allow it. A GVR from the Court would solve this problem.
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