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govinfo:USCOURTS-dcd-1_24-cv-02942-0
1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL ASSOCIATION OF HOME
BUILDERS OF THE UNITED STATES, et al.,
Plaintiffs,
v.
DISTRICT OF COLUMBIA,
Defendant.
Case No. 24-cv-02942 (ACR)
MEMORANDUM OPINION AND ORDER
The Energy Policy and Conservation Act of 1975 (EPCA) prohibits state and local
regulations “concerning the energy efficiency [or] energy use” of certain products, including gas
appliances. See 42 U.S.C. § 6297(c). The Clean Energy D.C. Building Code Amendment Act of
2022 (Clean Buildings Act) requires that by 2027, certain newly constructed or improved
buildings in Washington, D.C., operate as zero-energy—essentially, they must produce as much
energy as they consume. To achieve this, it bans the use of gas appliances in those buildings.
The question: does the former preempt the latter? Plaintiffs—an assortment of trade
associations, companies, and unions—say yes. The ban, they argue, de facto sets gas appliances’
energy efficiency or use standard to zero, which conflicts with EPCA’s preemption provision.
The District of Columbia responds that the ban does not address such standards at all. Yes, it
mandates that gas appliances cannot be used in certain buildings. But it says nothing about the
performance standards the appliances must meet when used elsewhere.
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The District has the better interpretation. The Court therefore GRANTS the District’s
Cross-Motion for Summary Judgment, Dkt. 30, and DENIES Plaintiffs’ Motion for Summary
Judgment, Declaratory Relief, and Permanent Injunction, Dkt. 26.
I. BACKGROUND
A. The Oil Embargo of 19731
While it is difficult to pinpoint the origin story of any litigation, we might as well start
ours on October 17, 1973. That day, President Richard M. Nixon expressed concern that the
Arab–Israeli War might cause gas prices to rise. Given our country’s dependence on foreign oil
then, he feared this would cause economic upheaval at home.2 And he was right to worry. On
that same day, halfway across the world, Arab oil ministers decided to impose a total oil embargo
on the United States and other countries aiding Israel.3 As intended, this ban “sent shock
radiating through the social fabric of . . . industrial nations.”4 In the United States, gas prices
skyrocketed, supplies plummeted, unemployment increased, and the economy teetered.5
Oil was not the President’s only problem. Throughout 1973, the Watergate scandal was
splashed daily in newspaper headlines across the Nation.6 And it seemed that “the President was
1 For those interested in a “panoramic history of the world’s most important resource: oil,”
including the 1973 oil crisis, the Court commends Daniel Yergin, The Prize: The Epic Quest for
Oil, Money & Power (1990).
2 Id. at 588–91.
3 Id.
4 Id. at 597. Coincidentally, as the Court publishes this Memorandum Opinion, the world
economy is facing potentially its largest oil shock. Due to a conflict in the Middle East. See
Emmett Lindner, Echoes of the ’70s in What’ s Now the Largest Oil Shock Ever, N.Y . Times (Mar.
13, 2026).
5 H.R. Rep. No. 94-340, at 20–22 (1975).
6 Yergin at 601. For more on that scandal and recommended readings, see Storch v. Hegseth, 804
F. Supp. 3d 216, 219–21 & n.1 (D.D.C. 2025).
Case 1:24-cv-02942-ACR Document 48 Filed 03/26/26 Page 2 of 22
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always searching for some political ‘spectacular’ involving oil and the Middle East to try to
divert the country from its obsession with Watergate.”7 Because of the embargo, Watergate, or
both, on November 7, 1973, President Nixon announced Project Independence: “in the spirit of
Apollo, with the determination of the Manhattan Project, . . . by the end of this decade we will
have developed the potential to meet our own energy needs without depending on any foreign
energy source.”8 And afterward, his administration continued to announce various energy
actions.
But neither the announcements nor the energy actions succeeded. President Nixon was
forced to resign in August 1974. And our dependence on products that used petroleum increased
from 33 percent in September 1973 to 36 percent in December 1974.9
B. The Energy Policy and Conservation Act of 1975
The oil embargo ended on March 18, 1974. But the crisis had awakened the United
States to the “serious long-term economic and national security problems” of continued
dependence on foreign oil. Nat. Res. Def. Council, Inc. v. Herrington, 768 F.2d 1355, 1364
(D.C. Cir. 1985). So in January 1975, President Gerald R. Ford called for “the strongest and
most far-reaching energy conservation program we have ever had.” Id. Congress answered him
by passing EPCA that same year. See EPCA, Pub. L. No. 94-163, 89 Stat. 871 (1975). Relevant
here, EPCA aimed to “reduce domestic energy consumption through the operation of specific
voluntary and mandatory energy conservation programs.” Herrington, 768 F.2d at 1364 (citing
S. Rep. No. 94–516, at 116–17 (1975)).
7 Yergin at 601.
8 Id. at 599.
9 H.R. Rep. No. 94-340, at 20.
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At enactment, EPCA required the Department of Energy “to mandate energy efficiency
labeling of major residential appliances and to prescribe voluntary industry appliance efficiency
improvements.” S. Rep. No. 100-6, at 3 (1987); see EPCA §§ 324–326. It also “authorized, but
did not require, DOE to establish mandatory efficiency standards if necessary.” S. Rep. No. 100-
6, at 3.
But DOE was slow on the uptake. It did not set standards expeditiously or, in some
cases, at all. See H.R. Rep. No. 95-496, at 43–46 (1977). So three years later, Congress
amended EPCA to mandate minimum energy efficiency standards for appliances that consume
substantial energy, such as kitchen ranges, ovens, refrigerators, and dishwashers. See National
Energy Conservation Policy Act (NECPA), Pub. L. No. 95-619, § 422, 92 Stat. 3206, 3259–62
(1978); Herrington, 768 F.2d at 1362 & n.1. Congress sought product designs that “achieve the
maximum improvement in energy efficiency which the [DOE] Secretary determines is
technologically feasible and economically justified.” S. Rep. No. 100-6, at 3. It added, however,
a waiver provision that DOE began granting as a matter of course. See infra pp. 9–10.
In 1987, again attempting to ensure uniformity, Congress amended EPCA to clamp down
on the waivers and bolster EPCA’s preemption provision. S. Rep. No. 100-6, at 4–5; National
Appliance Energy Conservation Act of 1987 (NAECA), Pub. L. No. 100-12 § 5, 101 Stat. 103,
107–17 (codified as amended at 42 U.S.C. § 6295). If an energy conservation standard exists for
a covered product,10 EPCA preemption now provides that “no State regulation concerning the
10 The statute identifies specific covered products and provides that the Secretary “may classify”
certain other consumer products as covered products if the Secretary makes certain findings. See
42 U.S.C. § 6292(a), (b)(1).
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energy efficiency [or] energy use . . . of such covered product shall be effective with respect to
such product.” 42 U.S.C. § 6297(c).11
In the decades since, DOE has promulgated energy conservation standards for various gas
appliances, including stoves,12 ovens, water heaters, and dryers. See 42 U.S.C. § 6295(a); 10
C.F.R. § 430.32.
C. The Clean Energy D.C. Building Code Amendment Act of 2022
Fast-forward about half a century. In 2021, six D.C. Councilmembers introduced the
Clean Buildings Act “to arrest climate change” in response to “record-breaking extreme weather,
higher tides caused by rising sea levels, heavy rains and flooding, and a sharp increase in the
number of dangerously hot days.”13 The Clean Buildings Act codifies a component of the 2018
Clean Energy D.C. Plan, the District’s strategy to achieving carbon neutrality by 2050.14
In 2022, the D.C. Council passed the Clean Buildings Act. See D.C. Act 24-528 (July 27,
2022). The Act requires that by 2027 certain newly constructed or improved buildings operate as
zero-energy. That is, they must produce as much energy as they consume. An arguably laudable
goal, though one that imposes numerous conditions on commercial buildings and residential
buildings over three stories. D.C. Code § 6-1453.01(a)(2); 12A D.C. Mun. Regs. § 101.10.5;
D.C. Energy Conservation Code R202.
11 This preemption provision is subject to several exception and waiver provisions, id. § 6297(c)–
(f), which the Court discusses infra pp. 15–19.
12 Stove, coincidentally, is the title of Lana Del Rey’s forthcoming album. See Lindsay Zoladz, 6
(More) Albums I’m Looking Forward to in 2026, N.Y . Times (Feb. 24, 2026). Alas, though, it is
unlikely to address EPCA or preemption.
13 Letter from Mary M. Cheh, Councilmember, Ward 3, Council of the District of Columbia, to
Nyasha Smith, Secretary, Council of the District of Columbia, at 1 (Oct. 1, 2021).
14 Id.
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The Act directs the D.C. Mayor, by December 31, 2026, to “issue final regulations
requiring all new construction or substantial improvements of covered buildings to be
constructed to a net-zero-energy standard.” D.C. Code § 6-1453.01(b)(1).15 To meet a “[n]et-
zero-energy standard,” a building must (1) “conserve[] an amount of energy attributable to
building operations that is equal to or greater than the amount that would be required by the most
recent version of Appendix Z”; and (2) “obtain[] energy from renewable energy sources in the
amount that would be required by the most recent version of Appendix Z” and meet additional
“restrictions.” Id. § 6-1453.01(a)(3)(A)–(B). If the Mayor does not timely issue the required
regulations, however, a fallback provision kicks in: “no building permit application submitted
after” 2026 “shall be approved unless the building design complies with the most recent version
of Appendix Z.” Id. § 6-1453.01(b)(2).16
Appendix Z of the D.C. Energy Conservation Code provides for “the design of a net-zero
energy building” through, among other criteria, prohibition of “[o]n-site combustion of fossil
fuels . . . for the provision of thermal energy to the building.” Dkt. 29-7 at 4, 6.17 In lay terms, it
15 The Net Zero Modification and Preservation Emergency Amendment Act of 2026, D.C. Act
26-275 (Mar. 6, 2026), temporarily alters the text of the statute until June 4, 2026. The
amendment replaces “substantial improvements” with “Level 3 alterations,” for example, and
clarifies the definition of “[n]et-zero-energy standard.” Id. § 3(a)(3), (b). These temporary
changes do not affect the Court’s analysis.
16 The Act excepts from this provision “the on-site combustion of fossil fuels for backup power
generation in buildings that are essential to protecting public health and safety.” D.C. Code § 6-
1453.01(b)(2).
17 The D.C. Construction Codes Coordinating Board approved a new version of Appendix Z in
2023, which provides that “[a]ll buildings shall be all-electric buildings.” Dkt. 29-8 at 6; Dkt.
29-6; Dkt. 38-1 ¶ 8. As of the filing of this Memorandum Opinion, that version has not yet gone
into effect, because it has not yet undergone notice-and-comment rulemaking and gained the
approval of the D.C. Council. D.C. Mun. Regs. tit. I, §§ 600–603; D.C. Code § 6-1409; see Dkt.
29 at 6–7. The Court’s analysis does not depend on which version of Appendix Z is in effect,
because both effectively prohibit the use of natural-gas appliances in covered buildings.
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bans the use of natural-gas appliances in applicable buildings. So, for example, rather than
installing gas stoves in apartments, builders must install electric stoves.
D. Procedural Background
Plaintiffs, “a group of trade associations, companies, and unions that rely on the
availability of gas appliances and systems,” here sued the District to enjoin the Clean Buildings
Act. Dkt. 1 ¶ 6. They assert that if allowed to go into effect, the Act “will inflict serious harm on
Plaintiffs in the form of lost customers, sales, and revenue; loss of employment; increased
expenses, including as a result of higher gas prices; and the inability of restaurants to cook with
their preferred form of energy.” Dkt. 26 at 15–16.
Plaintiff National Association of Home Builders of the United States is an organization
that represents approximately 140,000 U.S. residential building construction industry members.
Dkt. 1 ¶ 11. Plaintiff Restaurant Law Center is a public-policy organization whose membership
includes all members in good standing with the National Restaurant Association and State
Restaurant Associations. Id. ¶ 12. Plaintiff National Apartment Association is a federation of
141 affiliated apartment associations. Id. ¶ 13. Plaintiff Maryland Building Industry Association
represents home builders, remodelers, developers, and affiliate professional and service providers
in D.C. and Maryland. Id. ¶ 14. Plaintiff Washington Gas Light Company is a regulated public
utility that provides natural gas services to 1.2 million customers in D.C., Maryland, and
Virginia. Id. ¶ 15. Plaintiff Philadelphia-Baltimore-Washington Laborers’ District Council is an
affiliate of the Laborers International Union of North America, AFL-CIO. Id. ¶ 16. Finally,
Plaintiff Teamster Local 96 is a union whose members work for Plaintiff Washington Gas Light
Company. Id. ¶ 17.
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Collectively, Plaintiffs contend that EPCA preempts the Clean Buildings Act. They
moved for summary judgment and requested a declaration and a permanent injunction. Dkt. 26
at 35. The District disagrees that the Act is unlawful and therefore cross-moved for summary
judgment. Dkt. 29. The Court heard argument on these Motions on September 25, 2025.18
II. LEGAL STANDARD
Because the parties present a purely legal question of statutory interpretation and “there is
no genuine dispute as to any material fact,” summary judgment is appropriate. Fed. R. Civ. P.
56(a). And because Plaintiffs challenge the Clean Buildings Act facially, see Dkt. 1 ¶ 20, the
Court may award summary judgment in their favor only if “no set of circumstances exists under
which the [District’s regulation] would be valid.” Air Transp. Ass’n of Am., Inc. v. U.S. Dep’t of
Transp., 613 F.3d 206, 213 (D.C. Cir. 2010).
III. ANALYSIS
The Constitution’s Supremacy Clause makes federal law “supreme.” U.S. Const. art. VI,
cl. 2. And so Congress may decide that federal law should “preempt,” rather than “operate
alongside state law.” Sickle v. Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 346 (D.C. Cir.
2018). The question here is whether EPCA “announces its displacement” of the Clean Buildings
Act “through [its] express preemption provision.” Id. (cleaned up).
18 Application of EPCA’s preemption provision to regulations like the Clean Buildings Act has
generated a split among federal courts. Compare Cal. Rest. Ass’n v. City of Berkeley, 89 F.4th
1094 (9th Cir. 2024) (local regulation preempted), with Ass’n of Contracting Plumbers of City
of N.Y., Inc. v. City of New York, No. 23-CV-11292 (RA), 2025 WL 843619 (S.D.N.Y . Mar. 18,
2025) (local regulation not preempted), and Mulhern Gas Co. v. Mosley, 798 F. Supp. 3d 304
(N.D.N.Y . 2025) (same), and Nat’l Ass’n of Home Builders of the U.S. v. Montgomery County,
No. 8:24-CV-03024-PX, 2026 WL 817322 (D. Md. Mar. 25, 2026) (same). The Southern
District of New York and Northern District of New York decisions are on appeal before the
Second Circuit. See Dkt. 85, Ass’n of Contracting Plumbers of City of N.Y., Inc. v. City of New
York, No. 25-977 (2d Cir. Jan. 30, 2026); Dkt. 71, Mulhern Gas Co. v. Mosley, No. 25-2041 (2d
Cir. Jan. 30, 2026).
Case 1:24-cv-02942-ACR Document 48 Filed 03/26/26 Page 8 of 22
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The traditional tools of statutory interpretation, see Loper Bright Enters. v. Raimondo,
603 U.S. 369, 374 (2024), favor the District. Plaintiffs’ preferred reading strains the statutory
text, context, and history beyond what they can bear. The District’s reading, on the other hand,
fits comfortably within EPCA’s statutory history, plain language, and structure. Energy
efficiency or use in EPCA refers to a fixed measure of an appliance’s performance capacity.19 It
does not concern whether the appliance can be used in a particular context. The Clean Buildings
Act only regulates the latter.
A. EPCA’s Statutory History
Congress amended and refined EPCA over time to increase federal control over product
design and strengthen its preemption provision. This statutory history, which “form[s] part of the
context of the statute,” Antonin Scalia & Bryan A. Garner, Reading Law 256 (2012) (Scalia &
Garner), informs the Court’s central task of interpreting the text of the preemption provision.20
So the Court backs up to explain EPCA’s evolution.
The federal government did not act alone in addressing the energy crisis. Throughout the
1970s, “some States began enacting appliance efficiency standards on their own.” S. Rep. No.
100-6, at 4. And, while NECPA contained a limited preemption provision, it allowed a state to
petition DOE for a waiver. Id. Moreover, the agency adopted “a general policy” of granting
19 The Court will follow the parties’ lead in discussing EPCA’s provisions concerning consumer
products. However, its analysis applies equally to industrial equipment for which parallel
language applies. See 42 U.S.C. § 6316(a) (incorporating by reference 42 U.S.C. § 6297 for
certain industrial equipment); id. ch. 77, subch. III, pt. A-1.
20 Statutory history includes “the statutes repealed or amended by the statute under
consideration.” Scalia & Garner at 256. It “(unlike with legislative history) can properly be
presumed to have been before all the members of the legislature when they voted.” Id. “So a
change in the language of a prior statute presumably connotes a change in meaning.” Id. For a
critique of this approach, however, see Anita S. Krishnakumar, Statutory History, 108 Va. L. Rev.
263 (2022).
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them. Id. The exception became the rule, and, predictably, a “growing patchwork of differing
State regulations” emerged. Id. Equally predictably, this created conflicting standards to which
manufacturers had to cater. Id. One state could require that a gas stove not consume greater than
1,200 kBtu per year, while another could up the limit to 1,770 kBtu per year. Soon,
manufacturers confronted the Hobbesian choice of designing appliances to meet the strictest state
standard or designing appliances differently for different states.
To address this performance standard free-for-all and promote uniformity, Congress
amended EPCA in 1987 to tighten the waiver provision and include a new preemption provision.
S. Rep. No. 100-6 at 2, 9; NAECA § 7. The main goal was to allow “industry [to] avoid the
burdens of a patchwork of conflicting and unpredictable State regulations.” S. Rep. No. 100-6 at
12–13. This goal is key. It was not to ensure the use of all covered appliances in all buildings.
Cf. Dkt. 26 at 25–28; Dkt. 38 at 13–15. And so the preemption provision’s language focuses
laser-like on “energy efficiency [or] energy use” of “covered product[s].” 42 U.S.C. § 6297(c).
The Court considers this text in depth next.
B. Statutory Definitions of “Energy Efficiency” and “Energy Use”
1. “Energy Efficiency” and “Energy Use” Standards Govern Product
Design
The text of EPCA’s preemption provision reads:
[E]ffective on the effective date of an energy conservation standard [that DOE]
established . . . for any covered product, no State regulation concerning the
energy efficiency [or] energy use . . . of such covered product shall be effective
with respect to such product.
42 U.S.C. § 6297(c). To interpret this language, the Court looks first to the relevant statutory
definitions. See Van Buren v. United States, 593 U.S. 374, 387 (2021).
To start, EPCA preempts regulations only where there is a DOE-established “energy
conservation standard” for a covered product. 42 U.S.C. § 6297(c). It defines “energy
Case 1:24-cv-02942-ACR Document 48 Filed 03/26/26 Page 10 of 22
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conservation standard” as a “performance standard” that measures either the “minimum level of
energy efficiency or a maximum quantity of energy use” of an appliance. Id. § 6291(6)(A)
(emphases added).21 And so, by design, “energy conservation standard” is synonymous with
“energy efficiency” and “energy use.” Id.; see Rawat v. Comm’r of Internal Revenue, 108 F.4th
891, 896 (D.C. Cir. 2024).
EPCA defines “energy efficiency” as “the ratio of the useful output of services from a
consumer product to the energy use of such product.” 42 U.S.C. § 6291(5). “Energy use” in turn
is “the quantity of energy directly consumed by a consumer product at point of use.” Id.
§ 6291(4). So energy efficiency is a ratio of an appliance’s useful output to its energy use, while
energy use is total consumption. As defined, each term—energy conservation standard, energy
efficiency, and energy use—refers to and protects federal primacy over product design. And
each metric is determined in accordance with test procedures performed under 42 U.S.C. § 6293.
See id. § 6291(4)–(6).
Let’s consider gas cooking tops, i.e., gas stoves, to show how these performance
standards work in practice. Gas cooking tops manufactured after April 9, 2012, cannot come
equipped with a constant burning pilot light. See 10 C.F.R. § 430.32(j)(1)(i). For those
manufactured on or after January 31, 2028, their “[m]aximum integrated annual energy
consumption” must be 1,770 kBtu/year. Id. § 430.32(j)(1)(iii)(C). And to ensure a gas cooking
top meets these requirements, a manufacturer must test it under specified “[t]esting [c]onditions.”
See generally 10 C.F.R. ch. II subch. D, pt. 430, subpt. B. DOE instructs, for example, that the
test gas cooking top must meet certain installation, gas supply, and instrument-configuration
21 That the statute itself establishes this equivalency punctures Plaintiffs’ assertion that the Court
should resist “conflat[ing] the terms ‘regulation[s] concerning . . . energy use’ and ‘energy
conservation standard.’” Dkt. 38 at 18.
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requirements, among other specifications. See id. ch. II, subch. D, pt. 430, subpt. B, app. I1 § 2.
The test aims to “simulat[e] actual use.” Herrington, 768 F.2d at 1404.
Putting all the pieces together, and widening our lens again, EPCA preempts regulations
that govern the design, manufacture, and production of an appliance—i.e., colloquially, how it
“perform[s].” See 42 U.S.C. § 6291(6)(A). And a state or local regulation only conflicts with a
federal energy efficiency or use standard where it affects the appliance’s performance under
“simulat[ed]” test conditions, not in other settings. Herrington, 768 F.2d at 1404.
This all matters because Plaintiffs’ interpretation of EPCA is instead based on a
hypothetical measurement of the appliance’s energy consumption not under testing conditions,
but at the “point of use”—a phrase they take from the statutory definition of “energy use” and
define in a particular way. Which takes us next to answering, what is a point of use?
2. That “Energy Use” Is Measured at an Appliance’s “Point of Use” Does
Not Alter the Analysis
Avoiding that the text refers to product design and testing conditions, Plaintiffs instead
latch on to a different aspect of EPCA’s definition of “energy use.” The statute provides that
“energy use” means the “quantity of energy” a product consumes at its “point of use.” 42 U.S.C.
§ 6291(4). And the dictionary definition of “point of use,” Plaintiffs note, is “the place where or
time when a product or service is used.” Dkt. 26 at 18 (quoting Point of Use, Cambridge English
Dictionary Online (2025)). So, they say, the statute preempts any regulation of the “quantity of
energy” that a gas appliance consumes where it is used. Id. at 17–18. And if a regulation
entirely precludes the use of gas appliances, then their “energy use” at the “point of use” is
zero—which is a standard different from the federal energy conservation standard and thus
preempted. Id.
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In making this argument, Plaintiffs rely on California Restaurant Association, a Ninth
Circuit opinion holding that EPCA preempts a similar regulation enacted by the City of Berkeley.
See Cal. Rest. Ass’n v. City of Berkeley, 89 F.4th 1094 (9th Cir. 2024). And the Court considers
this decision in detail, as it is currently the lone circuit decision on point. See supra note 18.
The panel began by referencing the Oxford English Dictionary to define “point of use” (similarly
to Plaintiffs) as the “place where something is used.” Id. at 1101 (quoting Point of Use, Oxford
English Dictionary Online (2022)). It used this definition to rewrite EPCA to “preempt[]
regulations, including ‘building code requirements,’ § 6287(f), that relate to ‘the quantity of
[natural gas] directly consumed by’ certain consumer appliances at the place where those
products are used.” Id.
“Right off the bat,” the panel next stated, “we know that EPCA is concerned with the
end-user’s ability to use installed covered products at their intended final destinations, like
restaurants.” Id. at 1101–02. And the Berkeley building code in question “necessarily regulates
the ‘quantity of energy directly consumed by [the appliances] at point of use.’” Id. at 1102. “So,
by its plain language, EPCA preempts Berkeley’s regulation . . . because it prohibits the
installation of necessary natural gas infrastructure on premises where covered appliances are
used.” Id.
The Court does not dismiss the panel’s reasoning, which three circuit court judges signed
and which the Ninth Circuit voted not to take up en banc. That said, in the Court’s view, if this
was the at-bat, the batter struck out. To start, EPCA addresses technical subjects. And so,
naturally, “point of use” in EPCA “has a well-established technical meaning.” Cal. Rest. Ass’n,
89 F.4th at 1123 (on denial of rehearing en banc) (Friedland, J., dissenting). The Ninth Circuit
majority ignored that when a statute “‘address[es] a technical subject, a specialized meaning
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is expected’” to work better than a phrase’s ordinary meaning. Van Buren, 593 U.S. at 388 n.7
(cleaned up) (quoting Scalia & Garner at 73). The Oxford English Dictionary definition the
panel consulted thus sheds no light.
Rather than refer to a lay-use dictionary, the dissent from the denial of rehearing en banc
exhaustively canvassed a range of industry, regulatory, and legislative sources. See Cal. Rest.
Ass’n, 89 F.4th at 1123–25 (Friedland, J., dissenting). That survey shows that Congress included
the phrase “point of use” to “convey that the ‘energy use’ of an appliance under EPCA does not
include indirect energy consumption upstream in the supply chain,” such as “energy consumed in
extracting that natural gas, removing its impurities, and transporting it to the location of the
stove.” Id. at 1123 (Friedland, J., dissenting). So “point of use,” properly defined in the EPCA
context, has nothing to do with an appliance’s use at the place it is used.
Second, the panel’s analysis contends that banning the use of appliances effectively sets
the appliance’s consumption to zero. Id. at 1102. But recall that DOE assesses energy efficiency
and use according to simulated-use test procedures. If a test had shown our hypothetical gas
stove’s energy use to be 1,770 kBtu (according to the maximum integrated annual energy
consumption metric the DOE prescribes), its energy use would be 1,770 kBtu wherever used.
And even if not used at all. “[A] gas stove of a particular model that sits uninstalled and unused
has the same ‘energy use’ under EPCA as one that is installed and running.” Cal. Rest. Ass’n, 89
F.4th at 1122 (Friedland, J., dissenting).
Third, even accepting the lay-use dictionary definition for “point of use” does not require
accepting the inference that EPCA demands that the appliance must be permitted in all places.
Consider a hypothetical federal law that defines the point of use as restaurants, sets a national
tortilla chips-to-salsa ratio of 2 grams for every 3 grams, and preempts states from regulating that
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ratio. No one would say that because Congress set a chips-to-salsa ratio, it intended to ensure
that every restaurant has a right to sell chips and salsa. And a state regulation prohibiting French
restaurants from serving chips and salsa would not be preempted because it would operate in an
entirely different regulatory space, preserving French cuisine—one that happens also to affect
chips and salsa availability. But replace “chips and salsa” with “covered products” and “ratio”
with “energy efficiency,” and the situation is the same this litigation presents.
The District has the better reading of “point of use.”
C. Statutory Context
1. The Court’s Interpretation Creates a Coherent Statutory Scheme
The statutory definitions do not end the Court’s analysis. It must also interpret EPCA
with an eye toward “harmony among [its] provisions.” Scalia & Garner at 180.
Here, the statutory scheme confirms that Congress intended the preemption provision to
cover only state and local regulations that alter a product’s design. Consider that the statute
contemplates that the Secretary may require “each manufacturer of a covered product to submit
information or reports to the Secretary with respect to energy efficiency [or] energy use.” 42
U.S.C. § 6296(d)(1). That is, manufacturers report a static energy efficiency or use figure as a
property of a particular product. This data does not vacillate depending on where a product is
used. EPCA also contains labeling requirements pertaining to “energy use” of certain products.
Id. § 6294(a)(2)(I), (a)(3). Those labels, too, must necessarily report a static figure. And
manufacturers and distributors may not “make any representation . . . with respect to the energy
use or efficiency . . . of a covered product to which a test procedure is applicable . . . unless such
product has been tested in accordance with [the relevant] test procedure and such representation
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fairly discloses the results of such testing.” Id. § 6293(c)(1). Again, these representations
concern a static figure.
In addition, DOE may in some cases waive preemption for states. See id. § 6297(d).
This waiver provision, too, reflects congressional concern for how a state or local law might
affect an appliance’s design and production.22 For example, DOE must consider “the extent to
which the State regulation would cause a burden to manufacturers to redesign and produce the
covered product type (or class).” Id. § 6297(d)(3)(C) (emphasis added). The DOE cannot grant
a waiver if a state or local regulation would remove certain “performance characteristics
(including reliability), features, sizes, capacities, and volumes” from the market. Id.
§ 6297(d)(4) (emphasis added). And if DOE waives federal preemption of a state regulation
governing a covered product’s energy efficiency or use, DOE may still delay the state
regulation’s effective date if it finds such delay “necessary due to the substantial burdens of
retooling, redesign, or distribution need to comply with the State regulation.” Id. § 6297(d)(5)
(emphasis added).
2. Plaintiffs’ Contrary Interpretation Disrupts the Statutory Scheme
Plaintiffs take a different view. They assert that (1) the word “concerning” in the
preemption provision, 42 U.S.C. § 6297(c); (2) the explicit exclusion of certain building codes
from preemption, id. § 6297(f); (3) the statute’s waiver provision, id. § 6297(d); and (4) the
appearance of “energy use” in other portions of EPCA enlarge EPCA’s preemptive scope. They
do not.
22 As the Court discusses infra pp. 18–19, a waiver provision attached to a more general
provision (here, the preemption provision) cannot, by itself, control the interpretation of the more
general provision. Here, however, the Court uses the language of the waiver provision alongside
other contextual cues to confirm a reading of the statutory definitions of “energy efficiency” and
“energy use” it has already established.
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First, “concerning.” True, that term “generally has a broadening effect.” Lamar, Archer
& Cofrin, Llp v. Appling, 584 U.S. 709, 716–17 (2018). But that does not tell the Court how
broadly to read the preemption provision. “[A]s many a curbstone philosopher has observed,
everything is related to everything else.” Cal. Div. of Lab. Standards Enf’t v. Dillingham Const.,
N.A., Inc., 519 U.S. 316, 335 (1997) (Scalia, J., concurring). And words like “concerning” are
especially sensitive to surrounding context. See United States v. Miller, 604 U.S. 518, 533
(2025). Courts must therefore take “particular” care, when “construing [words and] phrases that
govern conceptual relationships,” to read these terms “in their context and with a view to their
place in the overall statutory scheme.” Id.
The District contends that “concerning” limits preemption to building codes that smuggle
in design-related restrictions. See Dkt. 29 at 47–49. For example, a building code could provide
that all gas appliances consume only a certain amount of energy while switched on in certain
buildings. The inclusion of the term “concerning” likely closes such a loophole.23 On the other
hand, stretching “concerning” to cover any state or local prohibition of appliance use would
preclude a host of critical regulations—such as fire codes that prevent placement of gas
appliances where they could increase the risk of poisoning from harmful pollutants or more
easily ignite. See Ass’n of Contracting Plumbers of City of N.Y., Inc. v. City of New York, No. 23-
CV-11292 (RA), 2025 WL 843619, at *6 (S.D.N.Y . Mar. 18, 2025). Plaintiffs read “concerning”
with “uncritical literalism” that risks “mak[ing] pre-emption turn on infinite connections.”
Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 147 (2001) (cleaned up).
23 The legislative history confirms this view. Congress added § 6297(f) to “prevent[] State
building codes from being used as a means of setting mandatory State appliance standards in
excess of the Federal standards.” H.R. Rep. No. 100-11, at 26 (1987).
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Second, the exception for certain building codes. EPCA excludes from federal
preemption “State or local building code[s]” that meet certain criteria. 42 U.S.C. § 6297(f). The
parties agree that § 6297(f) is inapplicable here because the Clean Buildings Act does not meet
those criteria. See Dkt. 26 at 28–31; Dkt. 29 at 50–51. But § 6297(f) remains relevant, Plaintiffs
assert, because it allows the Court to infer that by exempting certain building codes, Congress
meant to apply the preemption provision to all other building codes. See Dkt. 26 at 19–20.
That argument is a too-long stretch. “[E]xceptions to preemption,” like § 6297(f), “while
sometimes a helpful interpretive guide, do not in themselves delineate the scope of the
[preemptive] rule.” Dan’ s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 264 (2013); see also
Puerto Rico v. Franklin California Tax-free Tr., 579 U.S. 115, 127 (2016) (explaining the no-
elephants-in-mouseholes interpretive canon). That is because statutes often provide multiple
routes for escaping a particular proscription. See Dan’ s City Used Cars, 569 U.S. at 264. Here,
the Clean Buildings Act is not preempted because that Act does not “concern[] . . . energy
efficiency [or] energy use” under the main preemption provision. 42 U.S.C. § 6297(c). But even
building codes that do concern energy efficiency or use could still be excepted from preemption
if they meet one of the tests that § 6297(f) prescribes.
Third, the waiver provision. DOE may grant state and local governments waivers that
permit their regulations of a product’s energy efficiency or use to go into effect under certain
conditions. See id. § 6297(d). But EPCA prohibits waiver if the “state regulation will
significantly burden manufacturing, marketing, distribution, sale, or servicing of the covered
product on a national basis.” Id. § 6297(d)(3). Plaintiffs claim that if DOE cannot waive
preemption of laws that affect an appliance’s “sale” or “servicing,” id. § 6297(d)(3), the
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preemption provision must cover all laws affecting an appliance’s post-manufacturing life cycle.
Dkt. 26 at 20–21 (quoting 42 U.S.C. § 6297(d)(3)) (citing Cal. Rest. Ass’n, 89 F.4th at 1104).
But like an exception provision, a waiver provision cannot by itself establish the scope of
a preemption provision. See Dan’ s City Used Cars, 569 U.S. at 264. And Plaintiffs’ read too
much into the words “sale” and “servicing.” That “the federal government must consider the
complete lifecycle of an appliance—from manufacturing to servicing—in reviewing a waiver
petition,” California Rest. Ass’n, 89 F.4th at 1104, does not mean that the corresponding
preemption provision covers all laws governing an appliance’s entire life cycle in all contexts.
Fourth, “energy use” in other portions of EPCA. Notwithstanding the definition of
“energy use” that the statute explicitly supplies, see supra pp. 10–15, Plaintiffs assert that other
sections of EPCA refer to “energy use” as the quantity of energy a household consumes. See
Dkt. 26 at 23. But those other sections do not refer to the “performance standard,” 42 U.S.C.
§ 6291(6)(A), associated with “a covered product,” id. § 6297(c), as the preemption provision
and its associated statutory definitions do. Instead, they reference “average annual per-
household energy use,” id. § 6292(b)(1) (emphasis added), and similarly “average per household
energy use,” id. § 6295(l)(1) (emphasis added), of products. Different sections of EPCA,
different types of energy use referenced.
If anything, the different usages support the District’s take: the preemption provision’s
omission of any reference to total household consumption suggests that it covers regulations of
product design, not actual energy consumption in a particular location. Between § 6297(c) on
the one hand and § 6292(b)(1) and § 6295(l)(1) on the other, the phrase “energy use” “take[s] on
distinct characters from association with distinct statutory objects.” Util. Air Regul. Grp. v. EPA,
573 U.S. 302, 320 (2014) (cleaned up).
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In sum, EPCA preempts only laws that impose additional performance standards for
appliances on top of federally established ones. This is the only reading that preserves “a
symmetrical and coherent regulatory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000).24
D. Federalism
Finally, the Court addresses federalism concerns. The Supreme Court has “long
recognized the role of the States as laboratories for devising solutions to difficult legal
problems.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 817
(2015). Lead Plaintiff National Association of Home Builders agrees. It has endorsed this
principle before the D.C. Circuit—as to building codes, no less. In 2020, it explained that
“[s]tate and local governments, which are closer to the needs and realities of their economies and
constituents, have primary authority to adopt and enforce building energy codes.” See Br.
Amicus Curiae Nat’l Ass’n of Home Builders in Supp. of Resp’ts at 18, Am. Lung Ass’n v. EP A,
No. 19-1173 (D.C. Cir. June 23, 2020). Well said.
Still, here, the parties present dueling theories regarding the applicability of a
presumption against preemption in areas that states and municipalities traditionally regulate. See
Dkt. 26 at 17; Dkt. 29 at 25–27. The Court does not fault them for raising this issue, as the
relevant Supreme Court jurisprudence is evolving. The Supreme Court has previously instructed
24 On summary judgment, Plaintiffs for the first time raise the question of whether EPCA also
preempts certain provisions of Appendix Z. Compare Dkt. 26 at 24–26, with Dkt. 1 at 22–23.
The Court agrees with the District that Plaintiffs have forfeited this challenge. See Trudel v.
SunTrust Bank, 924 F.3d 1281, 1286 (D.C. Cir. 2019); Dkt. 29 at 59. Even if they have not, and
assuming without deciding that they have standing on a ripe claim, cf. Dkt. 29 at 59–60,
Plaintiffs’ argument is unpersuasive. Appendix Z (in either its current or proposed form, see
supra note 17) provides for reduced energy consumption in certain buildings without setting any
product-design standard. So EPCA does not preempt Appendix Z for the same reasons it does
not preempt the Clean Buildings Act.
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that “[i]n all pre-emption cases, and particularly in those in which Congress has legislated in a
field which the States have traditionally occupied, we start with the assumption that the historic
police powers of the States were not to be superseded by the Federal Act unless that was the clear
and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (cleaned up).
More recently, however, the Supreme Court refused to “invoke any presumption against pre-
emption” where (as here) the “statute contains an express pre-emption clause.” Franklin Cal.
Tax-free Tr., 579 U.S. at 125 (cleaned up). Some judges have noted difficulty in reconciling
these approaches, because Franklin California Tax-free Trust did not “mention—much less
expressly overrule—the decades of cases where the presumption had . . . been applied.” See Cal.
Rest. Ass’n, 89 F.4th at 1107–08 (O’Scannlain, J., concurring); see Dialysis Newco, Inc. v. Cmty.
Health Sys. Grp. Health Plan, 938 F.3d 246, 258 (5th Cir. 2019) (discussing a circuit split).
Fortunately, the presumption, applicable or not, is a wash here. Whatever else the
Supreme Court cases state, both emphasize that the text of the statute must bear the weight of the
chosen interpretation. See Medtronic, 518 U.S. at 485; Franklin California Tax-free Tr., 579 U.S.
at 125. Here, the text is clear. EPCA establishes certain national programs for conservation. See
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 793 F.2d 1322, 1324 (D.C. Cir.
1986). Plaintiffs provide no persuasive evidence that Congress meant, through the same statute,
to trample on the District’s ability to pursue its own environmental goals where they do not
contradict federal standards. With or without federalism principles to aid its analysis, the Court’s
conclusions remain the same.
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IV. CONCLUSION AND ORDER
In sum, the Clean Buildings Act is not facially invalid under EPCA. Accordingly, the
Court:
GRANTS Defendant’s Cross-Motion for Summary Judgment, Dkt. 30;
DENIES Plaintiffs’ Motion for Summary Judgment, Declaratory Relief, and Permanent
Injunction, Dkt. 26; and
DIRECTS the Clerk of Court to close this case.
SO ORDERED.
This is a final appealable Order. See Fed. R. App. P. 4(a).
Date: March 26, 2026 ____________________________
ANA C. REYES
United States District Judge
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