The core of the issue is whether certain types of equipment, like non-condensing furnaces, can remain on the market, and whether the rule could accelerate a shift toward electrification. Last January, the American Gas Association, American Public Gas Association, and National Propane Gas Association filed a petition asking for the Supreme Court to consider the case.  

According to the AGA, about 55% of the market for natural gas furnaces cannot be replaced by other furnace types, and removing the non-condensing units would saddle families with costly renovations or eliminate gas as a heating option altogether. 

“Under this furnace rule, families will be told they must spend extra money to retrofit their home or switch to electricity and pay higher monthly energy bills,” said AGA President and CEO Karen Harbert in a written statement. 

The DOJ briefing argues that, due to the Energy Policy and Conservation Act, the DOE cannot adopt rules or standards that result in the unavailability of products with similar “performance characteristics.” Previously, the DOE issued rulings that non-condensing technology would not be treated as a “performance characteristic” that could not be eliminated via an energy-conservation standard.  

In December 2021, following the change to the Biden administration, the DOE reexamined the rule, issuing a new one saying non-condensing technology isn’t a performance characteristic under the EPCA. 

“In the specific context of consumer furnaces and commercial water heaters, the last four administrations have adopted alternating positions on the meaning of ‘performance characteristics,’” the brief says. 

In the brief, it’s argued that the EPCA identifies a performance characteristic as whether a feature or product provides utility to consumers, and that the Biden-era rules are “factually and legally flawed.” It says the DOE is considering new rulemaking to “correct those errors.” 

“While the December 2021 interpretative rule correctly focused on consumer utility, that rule artificially and improperly limited the utility inquiry to ‘those aspects of the appliance with which the consumer interacts during the operation of the product,’” the brief states. 

In the lower D.C. Circuit Court’s decision, the majority said it didn’t have sufficient reason to second-guess the DOE’s expertise in determining that appliances using different types of venting are the same. 

For HVAC contractors, if the lower court’s ruling stands, they would face more expensive and complex jobs, including some that are simply infeasible due to equipment or structural restrictions. The Department of Energy previously came to this conclusion in January 2021. 

“The Department [of Energy] expressed the view that, as a factual matter, condensing technology may not be feasible to install in all buildings,” the brief says. “The agency also found that condensing technology ‘may necessitate significant and unwelcome physical modifications to a home or business’ that decrease ‘consumer utility.’” 

The Supreme Court only accepts about 100 to 150 of the writs of certiorari petitions of the more than 7,000 cases it’s asked to review each year. 

In the brief, the DOJ cited its commitment to an executive order from President Donald Trump, “Unleashing American Energy,” that calls for regulatory requirements related to energy to be grounded in clearly applicable law. The DOJ has previously sued cities for ordinances and laws that effectively ban natural gas.