Broad Coalition of 31 backs AGA Supreme Court challenge to furnace restrictions

Twenty-one states and 10 organizations are urging the U.S. Supreme Court to review a federal appeals court ruling that upheld a Biden-era rule blocking the sale of non-condensing natural gas furnaces and certain commercial water heaters. The petition, led by the American Gas Association, American Public Gas Association and National Propane Gas Association, asks the Court to overturn a 2-1 decision by the U.S. Court of Appeals for the District of Columbia Circuit that if permitted to stand would remove efficient and affordable products used in millions of homes and businesses from the market.

Non-condensing furnaces, which would be illegal to manufacture in 2028 under the Biden-era rule, account for approximately 55% of the market for natural gas furnaces in the United States. In many homes, they cannot be replaced with condensing models without significant structural modifications, requiring costly renovations or eliminating natural gas as a heating option.

"This decision from the D.C. Circuit will hurt working families in West Virginia, seniors on fixed income and those in our rural communities more than any other, as they will be forced to either pay for costly home renovations or give up natural gas altogether," said West Virginia Attorney General JB McCuskey, who led the state coalition. "That is why it is so important for us to lead this coalition in asking the Supreme Court to step in and restore the rule of law."

WHAT THEY'RE SAYING:

States led by West Virginia Attorney General McCusky including Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee and Texas: "In West Virginia alone, more than 335,000 West Virginians, approximately four out of every ten households, rely on natural gas to heat their homes. Over 35,000 businesses do the same… The D.C. Circuit's decision effectively forces condensing technology on consumers whose homes are unequipped to support it. For many, compliance will require either replacing appliances with electric alternatives or undertaking costly renovations merely to replace older appliances. The practical consequences are substantial. But the method by which the D.C. Circuit reached its decision is just as concerning…"

U.S. Chamber of Commerce: "The [D.C. Circuit Court] committed obvious legal error in interpreting provisions of EPCA that Congress designed to protect the public from overregulation… In the challenged actions, the Department determined that non-condensing gas-fired furnaces and commercial water heaters do not offer protected 'performance characteristics…' But installing condensing appliances in certain existing residential and commercial spaces can require costly, time-consuming, invasive and disruptive renovations - renovations that may not even be feasible for some homeowners and businesses."

GPA Midstream: "Through the Challenged Rulemakings DOE is placing a thumb on the scale of consumer preferences for energy consumption in a way not intended by Congress and to the detriment of Americans' preferences and wallets, specifically harming lower income individuals and households."

National Apartment Association, National Multifamily Housing Council and Manufactured Housing Institute: "In a trailblazing opinion, the D.C. Circuit ran roughshod over [the Supreme Court's] precedents and Congress's statues… If that is all it takes to sidestep Loper Bright and restore a mode of analysis that looks suspiciously like Chevron deference, then the age of near-reflexive agency deference is very much back in full force in the Nation's most influential lower court for administrative law."

United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the U.S. and Canada AFL-CIO: "Through its extensive experience in the heating, ventilation, and air conditioning ("HVAC") industry, the United Association is aware that the installation of condensing gas furnaces in many homes and buildings presents enormous practical challenges. These issues are particularly acute in older buildings and buildings in dense, urban environments. While technological solutions exist to overcome these challenges, they are often only achievable at great cost and inconvenience for the consumer - burdens which would be unnecessary if the consumer instead had the option to purchase a noncondensing furnace. Moreover, the expense of converting a building from heating that relies on a noncondensing gas furnace to all-electric heating can be considerable, which means that conversion to all-electric heating is not likely to be a more economically viable alternative. In fact, in many cases, this conversion will be prohibitively expensive to the consumer."

Heating, Air-Conditioning & Refrigeration Distributors International, Plumbing-Heating-Cooling Contractors-National Association and Natural Gas Association of Georgia: "The Department [of Energy's] new standards for gas furnaces and commercial water heaters, along with the December 2021 Interpretive Rule that serves as their legal underpinning, represent a sea change for the appliance industry, builders and consumers. There is no debate that the rules will make non-condensing furnaces and commercial water heaters unavailable. Nor is there any dispute that non-condensing and condensing appliances work differently in ways that affect where and how they can be installed… The only question is whether these distinct installation-related attributes are performance characteristics or features that Congress prohibited the Department from making unavailable when setting standards. The answer, based on the plain text, statutory context, and the Department's own prior views, is yes."

National Association of Home Builders & National Association of Realtors: "DOE's energy efficiency standards impact housing affordability nationwide, for both prospective and existing homeowners and renters… NAHB and NAR strongly urge this Court to grant certiorari to close the loophole the D.C. Circuit Court built into Loper Bright v. Raimondo, and to review a finding by the D.C. Circuit upholding a regulation which will exacerbate the ongoing housing crisis."

Competitive Enterprise Institute: "The Circuit's decision denies tens of millions of American families a consumer choice and in certain cases, energy choice… CEI submits that the Circuit's interpretation is flawed and the process that the Court undertook to arrive at its interpretation deviates from the requirements of [the U.S. Supreme] Court in Loper Bright."

Duravent Group and Metal-Fab Inc.: "The circuit court's decision blesses exactly what the EPCA forbids: using efficiency standards to make lawful products unlawful."