The Trump administration is throwing its weight behind gas providers and utilities that want the Supreme Court to strike down Biden-era Department of Energy rules that tightened standards for gas-powered commercial water heaters and consumer furnaces.
In a brief filed Tuesday, the Department of Justice said because of a “legal error,” the justices should overturn a 2-1 decision by the U.S. Court of Appeals for the District of Columbia Circuit blocking the sale of noncondensing natural gas furnaces and commercial water heaters.
While the D.C. Circuit ruling was a win for DOE, Trump officials said the department holds a different view of the rules following the change in administration.
The government’s brief supports a petition filed in January by groups representing gas producers that argued non-condensing furnaces — which make up approximately 55 percent of the market for natural gas furnaces — cannot be replaced. They said removing the devices from the market would require costly renovations or the elimination of gas as a home heating option.
The gas producers’ Supreme Court petition said the Energy Policy and Conservation Act, or EPCA, prohibits DOE from adopting efficiency standards that ban consumer access to appliances with distinct “performance characteristics.”
Now that the White House has changed hands, “the government agrees with that contention,” Solicitor General D. John Sauer wrote in Tuesday’s brief. He said the justices should grant the gas companies’ petition and send the case back to the D.C. Circuit “in light of the government’s position.”
The Supreme Court grants only about 1 percent of petitions that come its way.
Citing a sweeping energy production executive order that President Donald Trump signed soon after he returned to office, Sauer said under the “current administration, the Department [of Energy] is committed to protecting consumers’ ‘freedom to choose from a variety of goods and appliances.’“
He said DOE has reviewed existing rules — including the furnace rule — “to determine whether they pose ‘an undue burden on the use of domestic energy resources’ or otherwise conflict with the administration’s policy priorities.”
The department has determined the Biden rules are “factually and legally flawed” and is considering new rulemaking to “correct those errors,” Sauer wrote.
Consumer groups have said the standards would save consumers money and panned the Trump administration for backing the gas groups’ attempt to get the case in front of the justices.
“Keeping the most outdated, inefficient furnaces on the market would mean higher utility bills for families,” said Andrew deLaski, executive director of the Appliance Standards Awareness Project. “The Trump administration is siding with gas utilities over people who just want to keep their house warm without it costing an arm and a leg.”
In the D.C. Circuit’s majority opinion, Judge Robert Wilkins, an Obama appointee, said the court had “no reason to second-guess” DOE’s position that appliances that use different types of venting are essentially the same, especially since the decision relies on the agency’s area of expertise.
But Sauer repeatedly pointed the Supreme Court to the dissent by Judge Neomi Rao, a Trump appointee, who said the Biden standards “run afoul” of the balance Congress struck under EPCA between improving efficiency and preserving consumer choice.
Sauer said the statute identifies a “performance characteristic” as whether a feature of a product provides utility to consumers.
He argued the Biden energy efficiency rules “artificially and improperly” limited the scope to features that consumers interact with during the operation of the product — not any feature of the product.
“Features with which a consumer does not interact during operation could easily bear on consumer utility,” Sauer wrote, suggesting as an example that “obtrusive plastic pipes running through one’s living room would surely produce disutility for the average consumer, even though the consumer might not interact with the pipes while operating the appliance.”
Twenty-one Republican attorneys general have also backed the petition from the American Gas Association, American Public Gas Association and National Propane Gas Association. Led by West Virginia Attorney General JB McCuskey, the states said the D.C. Circuit’s decision “permits the DOE to impose severe economic burdens on West Virginia and similarly situated states.”
