Solicitor General Asks Supreme Court to Eighty-Six Energy Conservation Rule

The Trump Administration is refusing to defend a D.C. Circuit decision upholding a flawed energy conservation ruie.

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.

Comments

[Ken Arromdee]

If you are trying to prove that 86 doesn't normally mean "kill", "I deliberately used it that way to make a point" doesn't count.

[Murcushio]

And it doesn't even make that point, because referring to getting rid of a rule as "killing" it is itself a colloquiallism; nothing living has died, so nothing has been killed. See also "gutted."

This kind of two-step is so wearying. About fifteen years ago, an acquaintance of mine had a hate campaign directed against him for calling for Wayne LaPierre's (the NRA guy) "head on a stick." The claim was made that he for-real wanted LaPierre's head to be cut off and displayed on a stick, and that this should be treated as an outrageous threat of violence.

And of course "I want his head on a stick" (or it's cousin, "claimed a scalp") means nothing of the sort.

It just never ends with these people.

[Bob from Ohio]

Maybe one day you will appreciate a witty comment.

[David Nieporent]

Yes, but to be fair, Erik Loomis is the dumbest man in academia.

[Jon S]

Sure, 86 unambiguously means assasinate. I am sure Urban Dictionary just completely revised its definition last night to hide that - https://www.urbandictionary.com/define.php?term=86

[skeptical scientist]

No, it doesn't. The definitions in all of the dictionaries published in the last fifty years proves it.

[Andrew Dhuey]

Here's strong evidence that the term eighty-six does not imply violence: https://www.merriam-webster.com/dictionary/86

Nothing about violence in any definition or usage examples.

[Murcushio]

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.

How so?

My understanding of Loper Bright is that it boils down to "you are no longer required to show deference to agencies; you as a court may now use your own best judgment as to the constitutional and statutory issues surrounding regulations, subject to all other doctrinal procedures and limitations."

Am I wrong here? And if I'm not, why does this mandate that in a post-Chevron world the DOE regulation in question is illegal or unconstitutional? Judge Rao's dissent is basically just full of complaining that the regulation is wrongheaded on its face, which isn't her concern.

If the DC circuit got this wrong, the Supreme Court should decide that on the merits, rather than using another "screw you, we'll decline to provide guidance of any sort behind yelling 'WRONG!' like children" tool.

[GKHoff]

"Am I wrong here?" Strike "you are no longer required to show deference to agencies," and substitute "you may not defer to the agency's interpretation of a statute." Strike "you as a court may now use your own best judgment" and substitute "you as a court must now use your own best judgment."

[Murcushio]

I see. In that case, if the best judgment of the court is "the agency got it right," then won't their reasoning need to be very, VERY bad indeed in order for a GVR to be applicable? If it's merely wrong, rather than risible, shouldn't the case be decided on normal merits-based appeal instead?

[Bob from Ohio]

Title is well done.

[Bored Lawyer]

86 has a colorful etymology:

86
To remove, end usage, or take something out or away. Despite ALL other posts suggestion the origin of this phrase there is only one true answer:
Chumley's, a famous and OLD New York speakeasy, is located at 86 Bedford St. During Prohibition, an entrance through an interior adjoing courtyard was used, as it provided privacy and discretion for customers.
As was (and is) a New York tradition, the cops were on the payroll of the bar and would give a ring to the bar that they were coming for a raid. The bartender would then give the command "86 everybody!", which meant that everyone should hightail it out the 86 Bedford entrance because the cops were coming in through the courtyard door.

[Both Sides]

That is legit interesting and by far the best thing posted I've seen about "86." Thanks!

[Glaucomatose]

And then the cops came in and assassinated everyone.

SEE?!!!