N of Contracting Plumbers v. City of New York; Mulhern Gas Co., Inc. v. Mosley

• Court: Court of Appeals for the Second Circuit
• Decided: June 30, 2026
• Docket: 25-977; 25-2041
• Status: Published

Opinion

25-977; 25-2041 Ass’n of Contracting Plumbers v. City of New York; Mulhern Gas Co., Inc. v. Mosley

In the United States Court of Appeals for the Second Circuit

August Term 2025 Argued: January 30, 2026 Decided: June 30, 2026

No. 25-977; 25-2041

ASSOCIATION OF CONTRACTING PLUMBERS OF THE CITY OF NEW YORK, INC., PLUMBING-HEATING-COOLING CONTRACTORS-NATIONAL ASSOCIATION, PLUMBERS LOCAL UNION NO. 1, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, NEW YORK STATE ENERGY COALITION, INC., PLUMBING FOUNDATION CITY OF NEW YORK, INC., LICENSED PLUMBING ASSOCIATION OF NEW YORK CITY, INC., DBA MASTER PLUMBERS COUNCIL OF THE CITY OF NEW YORK, BUILDING INDUSTRY ASSOCIATION OF NEW YORK CITY, INC., Plaintiffs-Appellants, v. CITY OF NEW YORK, Defendant-Appellee.

Appeal from the United States District Court for the Southern District of New York No. 23-cv-11292, Ronnie Abrams, District Judge.

MULHERN GAS CO., INC., NEW YORK STATE BUILDERS ASSOCIATION, NATIONAL ASSOCIATION OF HOME BUILDERS, NEW YORK PROPANE GAS ASSOCIATION, NATIONAL PROPANE GAS ASSOCIATION, NORTHEAST HEARTH, PATIO AND BARBECUE ASSOCIATION, PLUMBING CONTRACTORS ASSOCIATION OF LONG ISLAND, LICENSED PLUMBING ASSOCIATION OF NEW YORK CITY, INC., DBA MASTER PLUMBERS COUNCIL OF THE CITY OF NEW YORK, HOLMES MECH. LLC, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 1049, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 97, PLUMBERS LOCAL UNION NO. 200, TRANSPORT WORKERS UNION LOCAL 101, AFL- CIO, Plaintiffs-Appellants, v. WALTER T. MOSLEY, IN HIS OFFICIAL CAPACITY AS NEW YORK SECRETARY OF STATE AND MEMBER OF THE STATE FIRE PREVENTION AND BUILDING CODE COUNCIL, FORMERLY KNOWN AS ROBERT J. RODRIGUEZ, Defendant-Appellee,

NEW YORK GEOTHERMAL ENERGY ORGANIZATION, PUSH BUFFALO, Intervenor-Defendants- Appellees. *

Appeal from the United States District Court for the Northern District of New York No. 23-cv-1267, Glenn T. Suddaby, District Court Judge.

Before: SACK and PÉREZ, Circuit Judges, and PRESKA, District Judge. †

New York City and New York State enacted laws which effectively prohibit the use of fossil-fuel-powered appliances in new buildings. Various trade associations and unions sued to stop the laws from going into effect, arguing that they are preempted under the Energy Policy and Conservation Act’s express preemption provision. But the text of the preemption provision cannot support Appellants’ expansive construction. At most, EPCA preempts energy

* The Clerk of Court is respectfully directed to amend the caption accordingly. † Judge Loretta A. Preska, of the United States District Court for the Southern District of New York, sitting by designation.

2 conservation standards for covered appliances and a fairly limited realm of additional regulations that operate in a similar manner. The challenged laws fall outside of that realm. Therefore, we AFFIRM the judgments of the District Courts.

BRIAN C. BARAN (Sarah O. Jorgensen, on the brief), Reichman Jorgensen Lehman & Feldberg, LLP, Washington, DC, for Plaintiffs-Appellants.

CHARLES E. T. ROBERTS (Thomas Pulham, on the brief), for Brett A. Shumate, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC, as Amicus Curiae supporting Plaintiffs- Appellants in No. 25-977.

REBECCA L. VISGAITIS (Richard Dearing, Claude S. Platton, on the brief), on behalf of Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellee City of New York.

DUSTIN J. BROCKNER (Barbara D. Underwood, Jeffrey W. Lang, on the brief), on behalf of Letitia James, Attorney General of the State of New York, New York, NY, for Defendant-Appellee Walter T. Mosley.

DROR LADIN (Meagan Burton, on the brief), EarthJustice, New York, NY, for Intervenor-Defendants-Appellees New York Geothermal Organization and PUSH Buffalo.

3 MYRNA PÉREZ, Circuit Judge:

New York City and New York State enacted laws which effectively prohibit

the use of fossil-fuel-powered appliances in new buildings. Various trade

associations and unions sued in two separate cases to stop the laws from going

into effect, arguing that they are preempted under the Energy Policy and

Conservation Act’s (“EPCA”) express preemption provision. But the text of the

preemption provision cannot support Appellants’ expansive construction. EPCA

preempts energy conservation standards for covered appliances and a fairly

limited realm of additional regulations which operate in a similar manner. The

challenged laws fall outside of that realm. Therefore, we AFFIRM the judgments

of the District Courts.

BACKGROUND

Some city and state governments have imposed limits on the use of fossil-

fuel-powered appliances in response to research suggesting such appliances are a

significant source of pollution and greenhouse gas emissions. 1 New York City (the

“City”) and New York State (the “State”) were among those to act.

1 See, e.g., Commercial and Residential Sector Emission, U.S. Env’t Prot. Agency (Mar. 10, 2026), https://www.epa.gov/ghgemissions/commercial-and-residential-sector-emissions (“Combustion of natural gas and petroleum products for heating and cooking emits carbon dioxide (CO2), methane (CH4),

4 The City enacted Local Law 154 (the “Local Law”), which provides that

“[n]o person shall permit the combustion of any substance that emits 25 kilograms

or more of carbon dioxide per million British thermal units of energy” in new

residential buildings. N.Y.C. Local Law No. 154 (2021); N.Y.C. Admin. Code § 24-

177.1. In effect, the Local Law prohibits the use of appliances that run on natural

gas, heating fuel, and other fossil fuels. 2

A group of trade associations and a union (“City Appellants”) sued in the

Southern District of New York on the theory that the Local Law is expressly

preempted by EPCA, a federal statute that imposes energy conservation

performance standards on certain appliances. City Appellants sought a

declaratory judgment and permanent injunction preventing the Local Law from

going into effect. Instead, Judge Abrams granted the City’s motion to dismiss

and nitrous oxide (N2O).”); Carbon Monoxide’s Impact on Indoor Air Quality, U.S. Env’t Prot. Agency (Oct. 7, 2025), https://www.epa.gov/indoor-air-quality-iaq/carbon-monoxides-impact-indoor-air-quality (listing “gas stoves” and other sources of carbon monoxide and explaining health effects); Facts About Formaldehyde, U.S. Env’t Prot. Agency (July 7, 2025), https://www.epa.gov/formaldehyde/facts-about-formaldehyde (noting formaldehyde is found in “[e]missions from un-vented, fuel burning appliances, like gas stoves or kerosene space heaters” and that “[h]igh levels of exposure may cause some types of cancers”); see generally Anna Belova, et al., Literature Review on the Impacts of Residential Combustion, Final Report, American Lung Ass’n (July 10, 2022), https://www.lung.org/policy-advocacy/healthy-air-campaign/healthy-efficient- homes/residential-combustion. 2 The law has applied to new buildings under seven stories since January 1, 2024. It will expand its coverage to taller buildings in July 2027. See N.Y.C. Admin. Code § 28-506.1(1)–(2).

5 pursuant to Fed. R. Civ. P. 12(b)(6), concluding that EPCA does not preempt the

Local Law. City Appellants appealed.

Separately, the State enacted a law directing the State Fire Prevention and

Building Code Council, a body within New York’s Department of State, to adopt

regulations prohibiting the installation of appliances that burn fossil fuels in new

buildings. See N.Y. Energy L. § 11-104(6)–(8); N.Y. Exec. L. § 378(19) (the “State

Law”) (together with the Local Law, the “challenged laws”). A different group of

companies, trade associations, and unions whose members would be impacted by

the State Law (“State Appellants”) sued in the Northern District of New York and

argued that the State Law is expressly preempted by EPCA. After dismissing

claims against several defendants as barred by the Eleventh Amendment, Judge

Suddaby granted summary judgment to the remaining Defendant, the Secretary

of State, similarly concluding that EPCA’s preemption provision does not apply

to the State Law. State Appellants also appealed.

We heard the appeals in tandem. We review the two District Courts’

decisions de novo. See Kellogg v. Nichols, 170 F.4th 20, 24 (2d Cir. 2026) (motion to

dismiss); Nambiar v. Cent. Orthopedic Grp., LLP, 158 F.4th 349, 363 (2d Cir. 2025)

(summary judgment); cf. Pac. Cap. Bank, N.A. v. Connecticut, 542 F.3d 341, 351 (2d

6 Cir. 2008) (“A district court’s determination as to preemption is a conclusion of

law, which we review de novo.”).

DISCUSSION

These appeals concern whether EPCA preempts state and local laws which

prohibit fossil-fuel-powered appliances. EPCA, in relevant part, imposes energy

conservation standards on covered appliances, and its preemptive text closely

aligns with its affirmative regulatory scope.

The statute does not directly regulate the availability of fossil-fuel-powered

appliances, and its express preemption provision does not extend to laws far

beyond its defined regulatory reach. Thus, for the reasons explained below, EPCA

does not preempt the challenged laws.

I. Preemption Framework and EPCA’s Preemption Provision

Federal law is “the supreme Law of the Land; and the Judges in every State

shall be bound thereby, any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. “Under this principle,

Congress has the power to preempt state law.” Arizona v. United States, 567 U.S.

387, 399 (2012). “Federal preemption of a state statute can be express or implied,

and generally occurs: ‘[1] where Congress has expressly preempted state law, [2]

7 where Congress has legislated so comprehensively that federal law occupies an

entire field of regulation and leaves no room for state law, or [3] where federal law

conflicts with state law.’” SPGGC, LLC v. Blumenthal, 505 F.3d 183, 188 (2d Cir.

2007) (alterations in original) (quoting Wachovia Bank, N.A. v. Burke, 414 F.3d 305,

313 (2d Cir. 2005)).

Here, we confront the first category, express preemption. “There is no

doubt that Congress may withdraw specified powers from the States by enacting

a statute containing an express preemption provision.” Arizona, 567 U.S. at 399.

However, “if ‘a federal law contains an express pre-emption clause, it does not

immediately end the inquiry because the question of the substance and scope of

Congress’ displacement of state law still remains.’” Buono v. Tyco Fire Prods., LP,

78 F.4th 490, 495–96 (2d Cir. 2023) (quoting Altria Grp., Inc. v. Good, 555 U.S. 70, 76

(2008)). “[W]hen ‘a federal law contains an express preemption clause, we focus

on the plain wording of the clause, which necessarily contains the best evidence of

Congress’ preemptive intent.’” Id. at 495 (quoting Chamber of Com. of U.S. v.

Whiting, 563 U.S. 582, 594 (2011)). At the end of the day, “[p]reemption is ‘a matter

of statutory interpretation,’” and therefore, we must “ascertain the intent of

Congress.” Id. (first quoting Cantero v. Bank of America, N.A., 49 F.4th 121, 130 (2d

8 Cir. 2022); then quoting Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280

(1987)).

Our conclusion, therefore, must be rooted in the relevant preemptive text in

EPCA:

[O]n the effective date of an energy conservation standard established in or prescribed under section 6295 of this title for any covered product, no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.

42 U.S.C. § 6297(c). 3 The parties focus on the provision’s inclusion of “energy use,”

and therefore, our task is to determine whether the challenged laws “concern[] the

. . . energy use” of covered appliances.

To accomplish this task, we must first ascertain the meaning of “energy use”

as it is used in EPCA. As discussed below, our interpretation of “energy use” alone

undercuts Appellants’ primary argument for preemption from the start. Next,

with that interpretation of “energy use” in mind, we must determine whether the

challenged laws are nevertheless included in the scope of preemption through the

statute’s broadening use of “concerning.” Per the below, we conclude that

3 EPCA governs both consumer and industrial appliances. See 42 U.S.C. §§ 6291–6309 (consumer); id. §§ 6311–6317 (industrial). The parties agree that the relevant provisions are substantially the same for both kinds of appliances, and therefore, this opinion will cite the provisions that govern consumer products for ease of reference.

9 “concerning” does not save Appellants’ case. Finally, we turn to additional

interpretative tools to confirm the soundness of our interpretation.

II. Interpreting “Energy Use” Undercuts Appellants’ Case for Preemption

To ascertain the scope of EPCA’s preemption provision, we first must

uncover the meaning of the term “energy use.”

Appellants contend the challenged laws are preempted by framing the

challenged laws as “effectively set[ting] covered gas appliances’ maximum energy

use to zero” by prohibiting their use by consumers in new residential buildings.

See City Appellants’ Br. at 17; State Appellants’ Br. at 23. In essence, Appellants

primarily argue that “energy use” refers to the amount of energy consumed by

covered products in the hands of consumers. See City Appellants’ Br. at 28; State

Appellants’ Br. at 30, 34.

However, as explained below, we are not at liberty to ignore that the statute

defines “energy use” differently, nor that the statutory context precludes

Appellants’ reading.

A. Statutory Definition

“When ‘a statute includes an explicit definition’ of a term, ‘we must follow

that definition, even if it varies from a term’s ordinary meaning.’” Van Buren v.

10 United States, 593 U.S. 374, 387 (2021) (quoting Tanzin v. Tanvir, 592 U.S. 43, 47

(2020)). EPCA defines “energy use” as “the quantity of energy directly consumed

by a consumer product at point of use, determined in accordance with test

procedures under section 6293.” 42 U.S.C. § 6291(4). In addition, the statute

dictates that the referenced test procedures must “be reasonably designed to

produce test results which measure . . . energy use . . . during a representative

average use cycle or period of use.” Id. § 6293(b)(3).

It is plain then that a product’s “energy use” is a standardized, fixed

measure assigned to a product before it reaches consumers. Manufacturers

ascertain an appliance’s “energy use” by using “test procedures”; indeed, the

results of those test procedures are “determin[ative].” Id. § 6291(4). And those test

procedures are designed to replicate the appliance’s average use, meaning the tests

are performed in a controlled setting, not at the appliance’s ultimate destination

in the hands of consumers. In all, once an appliance has been sold, nothing a

consumer does with the appliance changes that appliance’s “energy use.”

Therefore, a regulation that effectively bars the use of a covered appliance

by certain consumers, like the challenged laws, has little to do with that

appliance’s “energy use.” The statutory definition all but confirms that the

11 preemption provision does not directly implicate the energy an appliance

consumes in the hands of consumers, contrary to Appellants’ view.

B. Context

The statutory context surrounding “energy use” confirms what the

definition already makes plain.

“It is a fundamental canon of statutory construction that the words of a

statute must be read in their context and with a view to their place in the overall

statutory scheme.” Giovinco v. Pullen, 118 F.4th 527, 531 (2d Cir. 2024) (quoting

West Virginia v. EPA, 597 U.S. 697, 721 (2022)). While “we begin . . . with the text

of the provision in question,” we may also consider, “the structure and purpose of

the Act in which it occurs.” Metro. Taxicab Bd. of Trade v. City of New York, 615 F.3d

152, 156 (2d Cir. 2010) (quoting N.Y. State Conf. of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645, 655 (1995)). Here, several components of EPCA are

helpful.

First, EPCA provides that a manufacturer’s “disclosure with respect to [the]

energy use” of a covered product required by the statute, “shall not create an

express or implied warranty . . . that such energy use . . . will not be exceeded

under conditions of actual use.” 42 U.S.C. § 6297(g). For the statute’s warranty

12 provision to make any sense, a covered product’s “energy use” must be fixed and

determined by the manufacturer, as no express or implied warranty could attach

to a shifting value arising from a product’s use by consumers. At the very least,

the warranty provision unmistakably suggests that an appliance’s “energy use”

and the energy an appliance consumes “under conditions of actual use,” are

separate values.

Second, EPCA provides that manufacturers must disclose a covered

product’s “operating cost” on the product’s label. Id. § 6294(c)(1)(A). The statute

directs that those costs be determined in accordance with testing procedures

explained in § 6293. Id. And per § 6293, a covered product’s operating cost “shall

be calculated from measurements of energy use.” Id. § 6293(b)(4). Thus, an

appliance’s “energy use” must be determined before a label is created and the

product is passed along to consumers. Moreover, if “energy use” referred to the

fluctuating energy used by an appliance at its ultimate destination, it would hardly

be possible for manufacturers to determine a fixed operating cost.

Third, EPCA requires that manufacturers “submit information or reports . . .

with respect to . . . energy use” of a covered product to the Secretary of Energy

under certain circumstances. See id. § 6296(d)(1). Necessarily then, a product’s

13 “energy use” must be a pre-determined, fixed measurement that does not rely

upon a product’s real-world use. After all, manufacturers can hardly be expected

to track and report on the performance of their products after they leave their

control and are placed in the hands of consumers.

Fourth and finally, EPCA bars manufacturers and distributors, among

others, from

mak[ing] any representation in writing . . . or in any broadcast advertisement, 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 such test procedure and such representation fairly discloses the results of such testing.

Id. § 6293(c)(1). Accordingly, the statute expressly ties a product’s “energy use” to

the results of test procedures conducted in the pre-marketing (and by extension,

pre-consumer) context.

If any doubt remained after examining the statute’s definition for “energy

use,” these provisions make abundantly clear that the term refers to a metric

determined before an appliance ever reaches consumers, not the energy that

appliance uses in the hands of consumers. Thus, Appellants’ primary argument

that the challenged laws are preempted because they “set” appliances “energy

use” to zero by barring their use by consumers falls flat.

14 III. “Concerning” Does Not Save Appellants’ Case

But our interpretation of “energy use” does not end the preemption inquiry.

The preemption provision covers regulations “concerning the . . . energy use” of

covered appliances. See 42 U.S.C. § 6297(c) (emphasis added). And Appellants

argue that even if the interpretation of “energy use” we hereby adopt is correct,

the challenged laws nevertheless “concern” appliances’ “energy use.” See City

Appellants’ Br. at 33–35; State Appellants’ Br. at 39–42. Ultimately, for the reasons

set forth below, the provision’s use of “concerning” cannot carry the weight

Appellants assign to it.

A. Interpreting “Concerning” Along the Lines of “Related To”

The parties agree that for our purposes, we can treat EPCA’s deployment of

“concerning” as synonymous with “related to,” a term courts have regularly

interpreted in other preemption contexts. See City of New York Br. at 41; Mosley

Br. at 55. Indeed, courts have often grouped these terms together. See Lamar,

Archer & Cofrin, LLP v. Appling, 584 U.S. 709, 717 (2018) (concluding, in the

bankruptcy context, that “related to” and “concerning” are indistinguishable);

15 Chevron USA, Inc. v. Plaquemines Parish, 608 U.S. ----, 146 S. Ct. 1052, 1060 (2026)

(reaching a similar conclusion in the federal officer removal context). 4

Drawing on longstanding precedent interpreting “related to” in the

preemption context, we read “concerning” to cover regulations that have one of

two features: “‘a connection with, or reference to,’ the topics the statute

enumerates.” Coventry Health Care of Mo., Inc. v. Nevils, 581 U.S. 87, 96 (2017)

(quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)) (interpreting

“relate to” in the ERISA context); see also Taxicab, 615 F.3d at 156, 157 n.4

(interpreting “related to” similarly in another EPCA context).

First, whether a regulation is impermissibly “connected” to the forbidden

subject matter (here, a product’s “energy use”) hinges on two inquiries: the purpose

of EPCA and the effect of the challenged laws. We first use the federal statute’s

“objectives . . . as a guide to the scope of the state law that Congress understood

4 In Lamar, the Supreme Court’s characterization of the terms as synonymous was expressly limited to the particular bankruptcy context the Court was facing. See Lamar, Archer & Cofrin, LLP v. Appling, 584 U.S. 709, 717 (2018) (“The Court finds no basis to conclude, however, at least in this context . . . .” (emphasis added)). Indeed, the Supreme Court has already warned against over-reading Lamar’s discussion of another broadening term, “with respect to.” See United States v. Miller, 604 U.S. 518, 520, 533 (2025) (“Respondent’s reliance on . . . cases that adopt capacious readings of phrases similar to ‘with respect to’ cannot support his argument, as those authorities all examine those terms in very different statutory contexts.”). Moreover, EPCA uses “related to” in a different preemption provision, which may suggest the terms have divergent meanings at least within the statute. See 49 U.S.C. § 32919(a). But we need not reach the issue because we conclude there is no preemption even if the two terms are synonymous.

16 would survive” and then also consider “the nature of the effect of the state law”

on the federal statute’s subject matter. Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312,

320 (2016) (first quoting Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 148 (2001);

then quoting Cal. Div. of Lab. Standards Enf’t v. Dillingham Constr., N.A., Inc., 519

U.S. 316, 325 (1997)).

Second, whether the challenged laws “reference” the preempted matter

(again, a product’s “energy use”) relies on their operation and terms. A local

regulation will be preempted by a preemption provision that bars laws “related

to” a subject if it contains a direct reference to that subject matter, “or makes the

existence of preempted subject matter essential to the law’s operation.” Taxicab,

615 F.3d at 156. A local regulation cannot avoid preemption merely by using a

“proxy” for, rather than a direct reference to, the preempted subject matter. Id. at

158.

Despite the amorphous nature of these inquiries, phrases such as “related

to,” and “concerning” do not endlessly stretch the scope of preemption provisions.

See Dubin v. United States, 599 U.S. 110, 119 (2023) (“[R]elate[d] to” should not be

“taken to extend to the furthest stretch of its indeterminacy.” (quoting Travelers,

514 U.S. at 655)). Indeed, the Supreme Court has “cautioned against an ‘uncritical

17 literalism’ that would make pre-emption turn on ‘infinite connections.’” Egelhoff,

532 U.S. at 147 (quoting Travelers, 514 U.S. at 656).

Per the below, we conclude the challenged laws have “neither of th[e]

impermissible relationships,” and thus, are not covered by EPCA’s use of

“concern.” See Rutledge v. Pharm. Care Mgmt. Ass’n, 592 U.S. 80, 86 (2020).

B. The Challenged Laws Are Not Connected to “Energy Use”

First, the challenged laws lack an impermissible connection with EPCA’s

regulation of appliances’ “energy use.” As explained above, we turn to EPCA’s

objectives and also to the challenged laws’ effect on the preempted subject matter to

determine whether an impermissible connection exists. See Gobeille, 577 U.S. at

320.

1. EPCA’s Objectives

To determine the relevant statutory objectives for purposes of assessing for

“connections,” we must consider EPCA’s purpose. See Rutledge, 592 U.S. at 86.

EPCA was passed following the oil embargo imposed by the Organization of Oil Producing and Exporting Countries (“OPEC”) in 1973. It was designed as a direct, comprehensive response to the energy crisis precipitated by the embargo . . . and among its stated purposes was the reduction of demand for energy through such measures as conservation plans and improved energy efficiency of consumer products.

18 Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 185 (2d Cir. 2004) (citations omitted).

After experimenting with a “voluntary market-based approach,” and setting

“targets,” EPCA was updated to require the Department of Energy (“DOE”) to

“establish[] mandatory efficiency standards for covered home appliances that

would achieve the maximum improvement in energy efficiency that was

technologically feasible and economically justified.” Id. at 185–86. When DOE

proved incapable of promulgating such standards, Congress again updated the

statute to “set . . . specific efficiency standards and testing methods for covered

products” itself, which DOE could later amend through rulemaking. Id. at 186–

87. In doing so, Congress was concerned both with meeting energy demands and

combatting a “‘growing patchwork’ of state efficiency standards that had

developed as the result of the absence of national standards.” Id. at 186 n.3

(quoting S. Rep. No. 100-6, at 4 (1987)). 5

5 We agree with Appellants that “[s]tates cannot circumvent preemption just by ‘shifting their regulatory focus’ from one angle to another.” State Appellants’ Reply Br. at 5 (quoting American Trucking Ass’ns v. City of Los Angeles, 569 U.S. 641, 652 (2013)); see also City Appellants’ Reply Br. at 6 (same). If a regulation’s practical effect is “at odds with the statute’s intended operation and effect” then the regulation is likely preempted. See Wos v. E.M.A. ex rel. Johnson, 568 U.S. 627, 636 (2013); see also Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 371–72 (2008) (emphasizing the need to look at whether the regulation “produces the very effect that the federal law sought to avoid”). But we disagree that EPCA’s “intended operation and effect,” see Wos, 568 U.S. at 636, was to ensure access to all covered products, or that Congress, through EPCA, “sought to avoid” bans entirely, see Rowe, 552 U.S. at 371.

19 Appellants point to two provisions to support their view that Congress’s

objectives include protecting “consumer choice.” See, e.g., City Appellants’ Br. at

43; State Appellants’ Br. at 47.

First, Appellants make much of the statutory waiver provision which

authorizes the DOE to reject waiver applications if DOE “finds (and publishes

such finding) that interested persons have established, by a preponderance of the

evidence, that such State regulation will significantly burden manufacturing,

marketing, distribution, sale, or servicing” of a covered product on a national basis

or “is likely to result in the unavailability in the State of any covered product type.”

42 U.S.C. § 6297(d)(3)–(4).

Second, and similarly, Appellants point to text dictating that DOE cannot

prescribe new standards, or amend old ones, if the revised standard “is likely to

result in the unavailability in the United States in any covered product type.” Id.

§ 6295(o)(4).

But these two provisions do not evince Congress’s “objective” for purposes

of preemption. 6 EPCA, at its core, sets energy conservation standards. It contains

6 We recognize that the Ninth Circuit believed these provisions to indicate that Congress intended to preempt a broader swath of regulations. See Cal. Rest. Ass’n v. City of Berkeley, 89 F.4th 1094, 1103–04 (9th Cir. 2024). For the reasons explained herein, we disagree.

20 no provisions which affirmatively protect consumers’ ability to access covered

products, nor does it include language affirmatively preserving manufacturers’

ability to operate in static markets. Indeed, on a fundamental level, the statute

operates to confine the choices of consumers and manufacturers by setting

standards. We cannot conclude that Congress pursued an “objective” of consumer

choice through the passage of a statute that says so little on the subject.

Moreover, “[e]xceptions to a general rule” such as DOE’s ability to

promulgate standards and grant waivers, “while sometimes a helpful interpretive

guide, do not in themselves delineate the scope of the rule.” Dan’s City Used Cars,

Inc. v. Pilkey, 569 U.S. 251, 264 (2013). Put differently, it is hard to draw conclusions

about Congress’s objective through the exceptions of a statute. At the very most,

the two provisions identified by Appellants show that Congress thought energy

conservation interests need not always be the only priority in setting energy

conservation standards, and that consumer choice and market stability have a role

to play in implementing that kind of regulation. But they say nothing about

Congress’s view of other interests, like protecting public health and addressing

climate change, let alone whether those varying interests support imposing a

21 totally different kind of regulation (i.e., a prohibition on types of energy rather

than a standard for the amount of energy consumed). 7

In all, we think it is clear that EPCA’s “objectives” were to establish a

standardized set of performance standards for covered appliances to promote

energy conservation. Those objectives serve “as a guide to the scope of the state

law that Congress understood would survive.” Rutledge, 592 U.S. at 86 (quoting

Dillingham Constr., N.A., Inc., 519 U.S. at 325). Since the challenged laws do not

impose standards of their own, EPCA’s objectives weigh against finding an

impermissible connection.

2. The Challenged Laws’ Effect

It is similarly difficult to establish that the challenged laws are

impermissibly “connected” to appliances’ “energy use” because the challenged

7 To be clear, we should not be read as suggesting that Appellee’s reasons for enacting the challenged laws bring those laws outside of EPCA’s preemptive scope. See Rowe, 552 U.S. at 373–74. The Supreme Court has clarified that, absent clear language to the contrary, the purpose of a potentially preempted law cannot “exempt[] state laws that . . . would otherwise [be] pre-empt[ed].” Id. at 374. Instead, we reference the interests of public health and combatting climate change solely to illustrate the lack of evidence supporting Appellants’ view of Congress’s intent. Our holding that the challenged laws are not preempted is not premised, in any way, on the purpose of the challenged laws.

22 laws do not affect the statute’s subject matter. See Rowe v. N.H. Motor Transp. Ass’n,

552 U.S. 364, 370 (2008). 8

The same energy conservation standards will apply before and after the

challenged laws are implemented. The challenged laws will not dictate, or even

incentivize, manufacturing or consumer choices along the lines of energy

consumption and conservation. Instead, the challenged laws govern via the type

of energy an appliance consumes by barring the use of fossil-fuel-powered

appliances, not the amount of energy it consumes (unlike, for example, a local law

which significantly incentivizes the use of appliances that exceed federal energy

conservation standards). These distinctions ensure the challenged laws will not

“produce[] the very effect that the federal law sought to avoid,” because they will

not apply any significant pressures on manufacturers to produce appliances that

exceed federal standards. See id. at 372.

8 Of course, the challenged laws represent a certain kind of regulatory disruption, which Appellants argue “affects” Congress’s concern with uniformity. But Congress was concerned with a patchwork of conservation standards specifically, not a patchwork of any kind of regulation, because they could “complicate [manufacturers’] design, production and marketing plans.” S. Rep. 100-6, at 4. We do not think this specific concern can be extrapolated to cover all regulations which might impact the choices of manufacturers. Regardless, we think the binary choice between electric and fossil-fuel-powered appliances does not represent the same risk of complication of the market as the potential for fifty different energy conservation standards.

23 We do not mean to minimize the overall impact of the challenged laws.

They will undoubtedly have an effect on the market for, and availability of, certain

covered products. But that is irrelevant to the question at hand because the

preemption provision targets regulations concerning appliances’ “energy use,”

not, as Appellants sometimes seem to suggest, regulations concerning the covered

appliances themselves. Cf. Taxicab, 615 F.3d at 157 (treating “fuel economy

standards” as the preempted subject matter, not the covered automobiles).

Indeed, “federal regulation of certain activities,” like the energy

conservation standards of covered appliances, “does not mean that States must

authorize activities antecedent to those federally regulated,” like the production

and sale of covered appliances, in the first place. See Va. Uranium, Inc. v. Warren,

587 U.S. 761, 793 (2019) (Ginsburg, J., concurring); cf. Cavel Int’l, Inc. v. Madigan,

500 F.3d 551, 554 (7th Cir. 2007); Empacadora de Carnes de Fresnillo, S.A. de C.V. v.

Curry, 476 F.3d 326, 333–34 (5th Cir. 2007); Ass’n des Éleveurs de Canards et d’Oies du

Quebec v. Becerra, 870 F.3d 1140, 1149–51 (9th Cir. 2017). As a particularly

instructive example, it is plain that a federal statute that sets standards for the

construction and safety of manufactured homes (i.e., mobile homes) does not

preempt zoning regulations that “exclude mobile homes” from certain areas

24 altogether. See Scurlock v. City of Lynn Haven, 858 F.2d 1521, 1524–25 (11th Cir.

1988). 9

The same holds true here; a regulatory bar on the use of covered appliances

altogether is not the kind of effect capable of creating an impermissible connection

for preemption purposes.

Because the challenged laws do not implicate Congress’s objectives in

passing EPCA, and absent an effect on the statute’s subject matter, the challenged

laws are not preempted through impermissible “connections.”

C. The Challenged Laws Do Not Reference “Energy Use”

Having concluded there are no impermissible “connections,” we next turn

to whether the challenged laws “reference” or rely upon an appliance’s “energy

use,” and thus, may still be preempted. They do not.

As discussed, the challenged laws govern by the type of energy consumed

by an appliance, not the amount of energy an appliance consumes under

standardized testing procedures. Put differently, an appliance’s “energy use,” as

9 The preemption provisions at issue in each of the cited cases apply to “requirements . . . with respect to” or “standards regarding” the statutes’ subject matter. See Cavel, 500 F.3d at 553 (citing 21 U.S.C. § 678); Curry, 476 F.3d at 333 (citing 21 U.S.C. § 678); Becerra, 870 F.3d at 1145 (citing 21 U.S.C. § 467e); Scurlock, 858 F.2d at 1525 (citing 42 U.S.C. § 5403(d)). Appellants appear to agree that at least “with respect to” and “concerning” can be treated similarly. See City Appellants’ Br. at 54. Thus, we think these cases are relevant for our purposes.

25 that term is used in the preemption provision, has no effect whatsoever on that

appliance’s coverage under the challenged laws. To enforce the challenged laws,

regulators could very well remain blind to an appliance’s “energy use.”

Nor do the challenged laws operate as a “proxy” for “energy use.” A

“proxy” requires an “equivalency,” but there is no “equivalency” between the

type of energy an appliance uses and that appliance’s “energy use.” Contra

Taxicab, 615 F.3d at 157–58. In fact, “some gas appliances are more efficient than

electric appliances, so [the challenged laws] may have the indirect effect of

increasing energy consumption in new buildings in some circumstances.” Cal. Rest.

Ass'n v. City of Berkeley, 89 F.4th 1094, 1126 (9th Cir. 2024) (Friedland, J., dissenting)

(citing 10 C.F.R. § 430.32(e)(1)(ii)). Thus, this case is not like Taxicab, where we

concluded a regulation that privileged hybrid taxis ran afoul of an express

preemption provision barring “a law or regulation related to fuel economy

standards.” 615 F.3d at 156 (quoting 49 U.S.C. § 32919(a)). Unlike in Taxicab, here

there are “plausible alternative reason[s] for the imposition of [the challenged

26 laws]” beyond the desire to regulate along the lines of appliances’ “energy use.”

Id. at 157. 10

IV. Other Interpretative Inquiries Confirm Our View of Preemption

We need not venture further. To summarize, the preemption provision is

best understood as preempting 1) state and local energy conservation standards

that interfere with Congress’s objectives in passing EPCA, 2) regulations that

reference or rely upon those standards in their operation, and 3) regulations that

otherwise impermissibly affect appliances’ “energy use.” Because the challenged

laws do not fall into these categories, they are not preempted.

Nevertheless, we proceed to check our work against Appellants’ remaining

arguments, using additional interpretative aids at our disposal.

A. Preemption Provision Title

First and most obviously, the preemption provision is titled: “General rule

of preemption for energy conservation standards when Federal standard becomes

effective for product.” 42 U.S.C. § 6297(c). From the start, Congress made clear

10 Even if there is some kind of correlation between the use of fossil fuel power and an appliance’s “energy use,” we think such an indirect relationship is not enough. Otherwise, regulating an appliance by size or weight might be preempted, since common sense would suggest a correlation between the size of an appliance and its “energy use.” Contra 47 Fed. Reg. 57,198, 57,215 (Dec. 22, 1982) (“Prohibition against placing oversized furnaces and air conditioners in new buildings, would not be subject to preemption.”).

27 that it largely intended to preempt state and local energy conservation standards

on covered products. Again, the challenged laws are decidedly not energy

conservation standards, so the title supports our conclusion.

B. Definition of “Energy Conservation Standard”

Second, the preemption provision’s structure closely mirrors the statute’s

definition of “energy conservation standard.” “Energy conservation standard” is

defined in part as “a performance standard which prescribes a minimum level of

energy efficiency or a maximum quantity of energy use, or, in the case of

showerheads, faucets, water closets, and urinals, water use, for a covered product,

determined in accordance with test procedures prescribed under section 6293 of

this title.” See id. § 6291(6)(A). Thus, an “energy conservation standard” is a

standard governing a product’s energy efficiency, energy use, or water use,

depending on the type of product at issue.

That same formulation reappears in the text of the statute’s preemption

provision, which again, preempts state regulations “concerning the energy

efficiency, energy use, or water use of . . . covered product[s].” Id. § 6297(c). The

symmetry between the statute’s definition of an “energy conservation standard”

and the text it uses in its preemption provision confirms that Congress’s driving

28 concern was to preempt state and local energy conservation standards, not

prohibitions on types of energy like the challenged laws.

C. Building Code Exemption

Third, our interpretation is consistent with EPCA’s exemption for certain

regulations in building codes.

EPCA provides that state laws that would otherwise be preempted are

permitted if they exist “in a building code for new construction” and meet certain

criteria. Id. § 6297(c)(3), (f)(3). 11 The criteria for triggering the exemption provide

that the regulation must “allow builders the freedom to choose a mix of products

to meet” a “general energy conservation objective . . . without requiring” that

builders use covered products which “exceed federal standards.” See State

Appellants’ Br. at 6–7 (citing 42 U.S.C. § 6297(f)(3)(A)–(C), (F)).

Of course, for the exemption to make any sense, the kind of regulation it

describes must be preempted in the first place; otherwise, the exemption would

do no work. And the building code regulations covered by the exemption look

different from the kind of energy conservation standards that primarily concerned

Congress; energy conservation standards are specific to a certain appliance and

11 Appellees do not assert that the challenged laws fall under the building code exemption, so we need not decide whether the challenged laws meet the relevant criteria.

29 mandatory, whereas the regulations that are covered by the building code

exemption operate on a building-wide basis through incentives. Therefore, the

kind of regulations covered by the building code exemption provide a useful

“check” for the viability of our interpretation of the preemption provision. If our

interpretation were to exclude such regulations, we may have reason to pause.

Our interpretation of the preemption provision, however, is consistent with

the building code exemption. Though they are not the kind of performance

standards that Congress was most directly concerned with, the regulations

covered by the building code exemption nevertheless have an “impermissible

relationship[]” to EPCA’s subject matter, and thus, are preempted under the

interpretation we adopt in this opinion. See Rutledge, 592 U.S. at 479. 12

By targeting building-wide energy conservation, such regulations arguably

“reference” appliances’ individual “energy use.” Indeed, regulating on a

building-wide scale simultaneously (and impermissibly) achieves the goal of

12 For similar reasons, we think DOE’s prior understanding that a “[p]rohibition of hook-ups for appliances with less than a certain efficiency would be subject to preemption” is consistent with our interpretation of the statute. See Cal. Rest. Ass’n, 89 F.4th at 1104 n.6 (quoting 47 Fed. Reg. 57,198, 57,215 (Dec. 22, 1982)). Such a regulation directly references and operates upon the preempted subject matter, the appliances’ “energy use,” but the same is not true of the challenged laws. Indeed, the very same regulation asserts that “[p]rohibitions against placing oversized furnaces and air conditioners in new buildings, would not be subject to preemption.” See 47 Fed. Reg. at 57,215. These two examples illustrate the conclusion we reach today: it is not the prohibitive nature of a regulation governing covered products that triggers preemption; it is the law’s use of the appliance’s “energy use” as a mechanism for regulating.

30 regulating the performance of the individual appliances within that building. See

Taxicab, 615 F.3d at 158 (pointing out the lack of a “plausible alternative reason for

imposition” of a regulation).

Separately, the regulations covered by the building code exemption may

also have an impermissible “connection” with products’ “energy use” because

they directly implicate Congress’s objectives in maintaining uniform energy

conservation standards. If states were permitted to regulate energy conservation

on an aggregated scale (rather than the per-product basis employed by EPCA),

states could easily escape the preemption provision’s reach by a simple

refashioning of their regulations.

Therefore, our interpretation of the preemption provision is internally

consistent with the building code exemption. Rather than undermining our

interpretation, the exemption provision further supports it. 13

13 In Building Industry Association of Washington v. Washington State Building Code Council, the Ninth Circuit addressed the relevant exemption. 683 F.3d 1144 (9th Cir. 2012). There, the relevant building code did not require the use of covered products that exceeded the standards imposed under EPCA, but instead, provided several options for meeting building-wide energy consumption goals, one of which was using more efficient products. The Ninth Circuit did not question that the regulation would be preempted, seemingly based on the regulation’s “call for higher efficiency covered products.” See id. at 1151. Instead, it focused squarely on whether the regulation would fall under the exemption. Its analysis squares with our interpretation.

31 D. EPCA’s Changes Over Time

Fourth, the preemption provision’s history reaffirms our interpretation.

In 1975, EPCA’s preemption provision precluded “any energy efficiency

standard or similar requirement with respect to energy efficiency or energy use of

a covered product.” See Energy Policy and Conservation Act, Pub. L. No. 94-163,

§ 327(a)(2), 89 Stat. 871, 926–27 (1975). And in 1978, “similar requirement” was

switched to “other requirement.” See National Energy Conservation Policy Act,

Pub. L. No. 95-619, § 424(b), 92 Stat. 3206, 3264 (1978).

Appellants concede that, as written, the 1975 and 1978 versions of the

preemption provision illustrate that “Congress meant to preempt only ‘energy

conservation standards’ and the like.” City Appellants’ Br. at 17; State Appellants’

Br. at 24; see also City Appellants’ Br. at 31 (“The preemption provision used to say

almost exactly what the district court concluded that it means now.”). DOE

seemingly agreed with that interpretation; in 1982, in a proposed rule addressing

state waiver applications, it explained that it would “review only State regulations

that are appliance efficiency standards,” not “State or local regulations that have

only a peripheral effect on the energy efficiency of a covered product.” Energy of

Conservation Program for Consumer Products; Proposed Rulemaking and Public

32 Hearings Regarding Energy Efficiency Standards for Refrigerators and

Refrigerator-Freezers, Freezers, Clothes Dryers, Water Heaters, Room Air

Conditioners, Kitchen Ranges and Ovens, Central Air Conditioners, and Furnaces,

47 Fed. Reg. 14,424, 14,456 (Apr. 2, 1982). DOE made that distinction because, in

its view, state laws “whose purpose is other than energy efficiency such as a law

on fire safety, would not appear to be preempted by the Federal rule, even if it has

a secondary and incidental effect of improving the efficiency of a covered

product.” Id.

Thus, we think it is clear that the challenged laws would not be preempted

under the prior versions of the preemption provision. The question then becomes

whether further amendments change that conclusion.

Undoubtedly, Congress varied the structure of the preemption provision in

the relevant version enacted in 1987. First, it changed the operative connecting

phrase from “with respect to” to “concerning.” Again, Appellants appear to agree

that this change alone does not indicate that Congress intended to broaden the

provision’s scope. See City Appellants’ Br. at 54 (noting that in Dan’s City, the

Supreme Court used “concern” and “with respect to” interchangeably). Second,

rather than specifically list “energy efficiency standard[s]” and “other

33 requirements,” Congress targeted “regulations” concerning energy efficiency,

energy use, or water use. See National Appliance Energy Conservation Act of

1987, Pub. L. No. 100-12, § 7, 101 Stat. 103, 118.

That 1987 amendment coincided with a broader, statute-wide change in the

way EPCA described the standards it promulgated. Instead of “energy efficiency

standard,” 42 U.S.C. § 6297(a)(2) (1982), the 1987 version of EPCA used the term

“energy conservation standard,” see § 2(a), 101 Stat. at 103. And while the prior

“energy efficiency standard” was defined to include “performance standard[s],”

see § 321(a)(6), 89 Stat. at 917, the new term “energy conservation standard” was

defined to include those standards and certain “design requirement[s]” for covered

products, see § 2(a), 101 Stat. at 103. Thus, “energy conservation standard” under

the modern EPCA is a broader term than “energy efficiency standard” from the

prior versions.

With this context, Congress’s motivation for rewording the preemption

provision emerges clearly. Had it simply swapped “energy efficiency standard”

for “energy conservation standard,” the preemption provision would have

covered a new kind of state law: design requirements. Instead, Congress’s decision

to list three of the component parts of the term “energy conservation standard”

34 (i.e., energy efficiency, energy use, and water use) without listing the fourth

(design requirements) indicates a conscious effort to avoid that outcome.

The legislative and administrative record supports this understanding of

Congress’s intent regarding the 1987 amendment. In describing the 1987

amendments, the House Committee on Energy and Commerce stated that the

preemption provision “[i]n overall form . . . follows substantially the preemption

requirements in current EPCA,” including “continu[ing] the basic concept of

preempting State energy efficiency standards.” H. Rep. No. 100-11, at 23–24

(1987). The Senate Committee on Energy and Natural Resources shared that

understanding; it explained that “[i]n general, [EPCA’s] national standards would

preempt all State standards” and that the “new” provision “preempts State

regulation, as provided under current law.” S. Rep. No. 100-6, at 2, 9 (1987) (emphasis

added). And many years later, DOE continued to interpret the preemption

provision in much the same way as it did before the 1987 amendments. In 2010,

in another notice of proposed rulemaking, it expressly “interpret[ed] ‘regulation

concerning energy use’ to be equivalent to ‘energy conservation standard,’” and

thus read the preemption provision to preclude state and local “performance-

based standard[s].” Energy Conservation Program: Energy Conservation

35 Standards for Residential Refrigerators, Refrigerator-Freezers, and Freezers, 75

Fed. Reg. 59,470, 59,530 (Sep. 27, 2010) (quoting 42 U.S.C. § 6297(c)).

In all, a holistic view of the 1987 amendments illustrates that Congress’s

revisions to the preemption provision were intended to reinforce the limits of its

scope, not broaden them.

E. Absurdity

Finally, our interpretation avoids absurd results. See Cuthill v. Blinken, 990

F.3d 272, 281 (2d Cir. 2021) (noting that in interpreting ambiguous statutes, “we

are mindful of the well-established rule that ‘absurd results are to be avoided’”

(quoting McNeill v. United States, 563 U.S. 816, 822 (2011))); In re Nine W. LBO Sec.

Litig., 87 F.4th 130, 145 (2d Cir. 2023) (similar).

Take, for example, indoor kerosene heaters, which appear to be covered

products under EPCA. See 42 U.S.C. § 6292(a)(9) (listing “direct heating

equipment”). New York City has, quite understandably, long banned their use

because of fire safety concerns. See N.Y.C. Admin. Code § 313.3(1). After all, a fire

in a New York City apartment complex can quite quickly escalate into a

devastating event. Were we to interpret the preemption provision to preclude

state and local prohibitions on covered products, as Appellants ask us to do, EPCA

36 could preempt New York City’s ban. We think it far-fetched to conclude that

Congress imagined such consequences, let alone intended those consequences,

when it drafted a preemption provision in a statute that by-and-large imposes

energy conservation standards. 14

Indeed, if the preemption provision covered the challenged laws, we see

little reason why it would not also preclude a whole slate of seemingly standard

regulations. Zoning laws that bar the use of certain appliances, like furnaces, in

residential neighborhoods would be preempted because they bar the use of certain

covered products, and thus, in Appellants’ view, set their “energy use” to zero.

See 42 U.S.C. § 6292(a)(5) (listing furnaces as a covered appliance). Noise

ordinances prohibiting the use of industrial fans could similarly fall by the

wayside. See generally Energy Conservation Program: Test Procedure for Fans and

Blowers, 88 Fed. Reg. 27,312 (establishing standard for fans and blowers). Though

our holding does not rely on the absurdity of these outcomes, they nevertheless

14 Appellants point out that no federal standard has been imposed on indoor kerosene heaters, and thus, as of now, New York City’s law would not be preempted under its interpretation. City Appellants’ Br. at 27. That is beside the point. The canon against absurd results does not solely consider whether an absurd result will come about the day after a court issues its decision. See, e.g., In re Brandt-Airflex Corp., 843 F.2d 90, 96 (2d Cir. 1988) (invoking the absurd results canon where a proffered interpretation would have “empower[ed]” a bankruptcy court to act). DOE could impose a standard for kerosene heaters at any point if it chose to do so, and, on Appellants’ account, such a standard would preempt New York City’s longstanding ban.

37 buttress our conclusion.

V. The Ninth Circuit’s Contrary Holding and Defining “Point of Use”

Before concluding, we acknowledge that the Ninth Circuit disagrees with

our interpretation of the preemption provision. 15 In California Restaurant

Association v. City of Berkeley, the Ninth Circuit faced a similar preemption

challenge to a local law which effectively barred the installation of natural gas

piping in newly constructed buildings. 89 F.4th 1094 (9th Cir. 2024). After the

district court dismissed the preemption claim, the Ninth Circuit reversed and held

that the local law was preempted by EPCA under its interpretation of the relevant

preemption provision. The Ninth Circuit reasoned that “EPCA is concerned with

the end-user’s ability to use installed covered products at their intended final

destinations” based largely on the phrase “point of use” in the statutory definition

of “energy use.” Id. at 1101–02. The Ninth Circuit denied the ensuing petition for

15 Beyond the two district court decisions relevant to this appeal, there is a growing consensus amongst district courts outside of the Ninth Circuit that EPCA does not preempt laws that effectively ban gas-powered appliances. See Nat’l Ass’n of Home Builders of the U.S. v. Montgomery County, No. 8:24-cv- 03024, 2026 WL 817322, at *7 (D. Md. Mar. 25, 2026); Nat’l Ass’n of Home Builders of the U.S. v. Dist. of Columbia, No. 24-cv-02942, 2026 WL 837674, at *12 (D.D.C. Mar. 26, 2026).

38 rehearing en banc, with eight active judges dissenting from the denial of rehearing

en banc.

Of course, we afford the decisions of other circuits respectful consideration,

and often, their decisions are “persuasive.” See Charles W. v. Maul, 214 F.3d 350,

357 (2d Cir. 2000). After much consideration of the statute’s text and relevant

precedent, however, we conclude that the reasons for divergence are too

compelling and reluctantly believe it necessary to create “a split among the

Circuits.” See Lamay v. Comm’r, 562 F.3d 503, 508 (2d Cir. 2009). In the end, we

think the opinion by Judge Friedland, dissenting from denial of rehearing en banc,

has the better interpretation.

A. The Ninth Circuit’s Interpretation Halves the Statutory Definition

In choosing to emphasize “point of use,” our view is that the Ninth Circuit

ignored the second half of the statutory definition. The statute defines energy use

as “the quantity of energy directly consumed by a consumer product at point of

use, determined in accordance with test procedures under section 6293.” 42 U.S.C.

§ 6291(4) (emphasis added). But the Ninth Circuit cut off the definition after

“point of use,” see Cal. Rest. Ass’n, 89 F.4th at 1101, and from there, its

interpretation went astray.

39 As we have already discussed, the statutory definition and its reliance on

“test procedures” is simply incompatible with the idea that “energy use” refers to

the energy an appliance consumes at its “intended final destination[].” Id. at 1102.

Thus, the Ninth Circuit not only ignored crucial text; its reading would “render[]

meaningless” part of the statute’s definition, “mak[ing] the statute incoherent.”

See Coon ex rel. Coon v. Willet Dairy, LP, 536 F.3d 171, 175 (2d Cir. 2008).

B. The Ninth Circuit’s Interpretation Overlooks Technical Meaning

Of course, the Ninth Circuit was correct that “point of use” must mean

something. The statute’s specialized context provides the answer: “[W]hen a

statute, like this one, is ‘addressing a . . . technical subject, a specialized meaning

is to be expected.’” See Van Buren, 593 U.S. at 388 n.7 (quoting Antonin Scalia &

Brian A. Garner, Reading Law: The Interpretation of Legal Texts 73 (2012)); see Cal.

Rest. Ass’n, 89 F.4th at 1121 (Friedland, J., dissenting from the denial of rehearing

en banc). In interpreting the statute’s plain text, it is “reasonable to assume that

Congress relied on the accepted” use of the language in its particular context. See

United States v. Hill, 506 U.S. 546, 553 (1993); see also Corning Glass Works v. Brennan,

417 U.S. 188, 201 (1974) (“[W]here Congress has used technical words or terms of

40 art, ‘it [is] proper to explain them by reference to the art or science to which they

[are] appropriate.’” (quoting Greenleaf v. Goodrich, 101 U.S. 278, 284 (1880))).

Informed by its context, the “point of use” language unmistakably indicates

the statute’s chosen scope for regulating an appliance’s consumption of energy.

There are two ways to measure an appliance’s energy consumption: site

energy and source energy. Site energy, in the words of DOE, “is the amount of

energy consumed at the point of sale (e.g., that enters the home, building, or

establishment) without adjustment for any energy loss in the generation,

transmission, and distribution of that energy.” Energy Intensity Indicators:

Terminology and Definitions, U.S. Dep’t of Energy (last visited Apr. 12, 2026),

https://www.energy.gov/eere/analysis/energy-intensity-indicators-terminology-

and-definitions. In other words, site energy is the energy consumed at an

appliance’s “point of use.” In contrast, “source energy” is the site energy “plus

the energy losses associated with the production of electricity by the utility sector

(i.e., losses that occur in the generation, transmission, and distribution).” Id.

Simply put, source energy casts a wider net.

As an illustrative example, “energy as measured at the ‘point of use’ would

include only the natural gas needed to operate a gas stove, whereas ‘source energy’

41 would also include the energy consumed in extracting that natural gas, removing

its impurities, and transporting it to the location of the stove.” See Cal. Rest. Ass'n,

89 F.4th at 1123 (Friedland, J., dissenting).

Congress needed to instruct regulators and manufacturers as to which of

these scopes of measurement it was regulating and imposing standards upon.

Without such instruction, the statute would not achieve its goals of

standardization. The statute’s inclusion of “point of use” is most naturally read as

a way of filling that gap.

C. Available Sources Support Our Reading of “Point of Use”

This technical interpretation of the work done by “point of use” not only

makes sense but is also in lockstep with the interpretation pressed by DOE on

multiple occasions. In a 2004 notice of proposed rulemaking, DOE explained that

“EPCA . . . do[es] not permit the regulation of source energy” because it

“specif[ies] that efficiency must be based on the energy consumption at the point

of use.” Energy Conservation Program for Consumer Products: Energy

Conservation Standards for Residential Furnaces and Boilers, 69 Fed. Reg. 45420,

45426 (July 29, 2004) (citing 42 U.S.C. § 6291(4)). And in a separate 2010 notice of

proposed rulemaking, DOE stated that “existing law . . . requires” measures of a

42 covered product’s energy consumption “to be based solely on the energy

consumed at the point of use” rather than “the energy consumed in extracting,

processing, and transporting primary fuels and energy losses associated with

generation, transmission, and distribution of electricity.” Energy Conservation

Program for Consumer Products and Certain Commercial and Industrial

Equipment: Public Meeting and Availability of Statement of Policy for Adopting

Full-Fuel-Cycle Analyses into Energy Conservation Standards Program, 75 Fed.

Reg. 51423, 51424 (Aug. 20, 2010) (citing 42 U.S.C. § 6291(4)). 16

A consistent stream of congressional and legislative sources similarly

supports reading “point of use” as a technical term. In 1978, in the lead up to

legislation that would amend parts of EPCA, the Congressional Research Service

(“CRS”) prepared reports for the House Subcommittee on Energy and Power

addressing national energy needs. Notably, those reports drew distinctions

between energy consumed by an appliance “at the point of use” and the energy

expended “by conversion and transmission.” See CRS, Energy and the Economy,

4339 (Apr. 1978); see also CRS, The National Energy Plan, 4541 n.1 (Apr. 1978)

16 Judge Friedland’s opinion dissenting from the denial of rehearing en banc in California Restaurant Association helpfully lists additional examples illustrating the technical meaning of “point of use.” 89 F.4th at 1123–24.

43 (noting that “in arriving at [a certain figure] [CRS] considered the energy lost to

convert fossil fuels to electricity at power plants, as well as the energy loss in

transmitting electricity from the power plant to the point of use”). Thus, there is

evidence that “point of use” has been used to indicate the scope of energy

consumption measured by a given figure since the seventies, around the time the

“point of use” language was introduced.

Later, in 1998, a Senate Appropriations Committee report recommending

the passage of an appropriations bill funding DOE activities acknowledged that

the standards implemented by DOE “presently reflect only the energy consumed

at the point of use,” and “ignore[] the total energy consumed over the full fuel

cycle.” S. Rep. 105-227, at 100 (1998). In response to the report’s criticism of site

energy, or point of use, methodology, the Chairman of the Senate Committee on

Energy and Natural Resources and seven colleagues asserted that EPCA’s

definition of “energy use” settled the debate over whether the statute should

implement standards based on site or source energy. See 144 Cong. Rec. S12706

(1998) (asserting that in passing EPCA, Congress opted for “determining the

energy use of an appliance at its point-of-use” rather than a more “expansive

definition of energy use . . . that included exogenous factors like ‘total fuel cycle’

44 costs, emissions and externalities”). Senator Murkowski went on to explain that

“the majority of Congress determined that energy consumed at the point of use

can be measured . . . with greater accuracy than . . . ‘source energy,’” and that

Congress’s “determination is clearly reflected in the authorizing statute.” Id.

(citing 42 U.S.C. § 6291). Underlying this debate is not only an apparent

understanding of the technical meaning of “point of use,” but also, a shared belief

that EPCA governs along those lines. 17

More recently, Congress commissioned a study by the National Academy

of Sciences which explained that “[c]urrent DOE standards for the energy

consumed by operating individual appliances call for measurement at the site

(point of use) of the appliance.” Nat’l Rsch. Council, Review of Site (Point-of-Use)

and Full-Fuel-Cycle Measurement Approaches to DOE/EERE Building Appliance

Energy-Efficiency Standards: Letter Report 3–4, 6 (2009). Just last year, Congress

began to consider a bill “to amend [EPCA] to modify standards for water heaters,

17 We recognize that these sources post-date the original enactment of the language at issue, though some precede Congress’s later amendments. See Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011) (criticizing the use of “post-enactment legislative history”). However, given that the alternate interpretation advanced by the Appellants and adopted by the Ninth Circuit would render part of the statute meaningless, and given the abundance of consistent evidence of the technical meaning of “point of use” over time, we think the technical interpretation is plainly the better one. Regardless, the Supreme Court has sometimes relied on post-enactment evidence of a term’s technical meaning to interpret a statute. See Van Buren v. United States, 593 U.S. 374, 388 n.6 (2023) (citing sources dated after the relevant statute’s 1986 enactment).

45 furnaces, boilers, and kitchen cooktops, ranges, and ovens.” H.R. 1281, 119th

Cong. (2025). That bill directly refers to the National Academy of Sciences report

and proposes incorporating the “full fuel cycle analysis for energy efficiency

standards” described in that report into the statute. Id. These sources provide

further evidence that “point of use” has long carried a technical meaning within

this context.

We thus depart from our sister circuit’s perspective.

VI. Conclusion

We hold that the challenged laws are not preempted under EPCA.

Interpreting preemption provisions in federal statutes requires ascertaining

Congress’s intent. EPCA, a statute that at its heart promotes national energy

conservation goals, does not preclude these particular state and local efforts to

regulate the use of fossil fuels. For the foregoing reasons, the District Courts’

judgments are AFFIRMED.