On August 23, AHRI and other petitioners filed with the U.S. Court of Appeals for the District of Columbia Circuit a response to the Department of Energy’s (DOE’s) supplemental brief, taking the position that if the Court were to decide that DOE’s final rule on energy conservation standards for commercial package boilers is unlawful, it should remand the rule without vacating it.
In our response, we noted that DOE initially confessed to its technical errors and took the position that the rule should be remanded so that DOE could reconsider the issues under the clear and convincing standard. Next, we argued that vacatur is necessary because DOE cannot remedy its errors simply by elaborating on its conclusory assertion that the flaws are unimportant. Finally, without vacatur, the Department risks violating the anti-backsliding provision, which statutorily bars DOE from adopting any standard less stringent than the Commercial Package Boiler Final Rule even if the agency determines that it is not economically justified.
The underlying case revolves around DOE publishing a final rule that set energy conservation standards for commercial package boilers at a level more stringent than what is found in the ASHRAE 90.1 standard. AHRI challenged the rule in court, arguing that DOE should have used a “clear and convincing” standard of evidence as required by statute. The American Public Gas Association and Spire, Inc. also filed as petitioners.