NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 23-3094 _______________
ZODIAC POOL SYSTEMS LLC, Petitioner
v.
UNITED STATES DEPARTMENT OF ENERGY _______________
On Petition for Review of a Final Rule Issued by the United States Department of Energy _______________
Argued: October 30, 2024
Before: CHAGARES, Chief Judge, PORTER, and CHUNG, Circuit Judges.
(Filed: January 29, 2025) _______________
Keith J. Coyle [ARGUED] Babst, Calland, Clements & Zomnir, P.C. 505 9th Street, Suite 602 Washington, DC 20004
Christina Manfredi McKinley Mark K. Dausch Babst, Calland, Clements & Zomnir, P.C. Two Gateway Center, 603 Stanwix Street, Floor 8 Pittsburgh, PA 15222
Stefanie Pitcavage Mekilo Babst, Calland, Clements & Zomnir, P.C. 409 N. 2nd Street, Suite 201 Harrisburg, PA 17101
Counsel for Petitioner Zodiac Pool Systems LLC
Michael S. Raab Catherine Padhi Martin Totaro [ARGUED] United States Department of Justice Civil Division 950 Pennsylvania Avenue NW, Room 7712 Washington, DC 20530
Counsel for United States Department of Energy
_______________
OPINION * _______________
CHAGARES, Chief Judge.
Zodiac Pool Systems LLC (“Zodiac”) challenges the Department of Energy’s
(“DOE”) final rule setting energy conservation standards for dedicated purpose pool
pump motors. Zodiac argues that the Energy Policy Conservation Act (“EPCA”) does
not authorize the DOE to issue conservation standards for this class of electric motors,
which would render the rule ultra vires and thus, void. Zodiac also claims that, even if
the DOE acted within its statutory authority, the rule is arbitrary and capricious for
mandating variable-speed functionality for motors that are compatible with pressure
cleaner booster pumps, a subclass of pool pumps that operate at only one speed. Because
Zodiac expressly petitioned the DOE to issue conservation standards of this nature,
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.
2 invoked the EPCA in doing so, and then failed to object to the DOE’s authority during
rulemaking, we conclude that Zodiac did not preserve its statutory authority argument
and decline to entertain it now. In addition, because the DOE’s explanation for its
variable-speed requirement falls within a zone of reasonableness, we also conclude that
the final rule is not arbitrary and capricious. We will therefore deny Zodiac’s petition for
review.
I.
We begin with a brief overview of the statutory scheme and rulemaking history
relevant to the present petition. This dispute centers on the EPCA, an energy
conservation statute signed into law in 1975 as part of a national effort to, among other
things, “provide for improved energy efficiency of motor vehicles, major appliances, and
certain other consumer products.” 42 U.S.C. § 6201(5). In the subsection we will refer
to as Part A, 1 the EPCA identifies several categories of energy-consuming “covered
products” and lays out the criteria and procedures the Secretary of Energy must follow
when “prescribing new or amended standards” for such products. Id. §§ 6292(a),
6295(o).
Congress amended the EPCA in 1978 via the National Energy Conservation
Policy Act (“NECPA”), which added Part A-1 and expanded the EPCA’s scope to reach
industrial equipment. Part A-1 provides that its purpose is “to improve the efficiency of
electric motors and pumps and certain other industrial equipment in order to conserve the
1 U.S. Code Title 42, Chapter 77, Subchapter III, Part A – “Energy Conservation Program for Consumer Products Other than Automobiles.” See 42 U.S.C. §§ 6291–6309.
3 energy resources of the Nation.” Id. § 6312(a). To that end, the first category of new
“covered equipment” added by NECPA is “[e]lectric motors and pumps.” Id.
§ 6311(1)(A). Part A-1 also incorporates large swaths of Part A, including the
rulemaking criteria and procedures governing when and how the Secretary may issue new
or amended energy conservation standards. Id. § 6316(a).
Of the various classes of “covered equipment” set forth in Part A-1 of the EPCA,
dedicated purpose pool pumps (“DPPPs”) and their motors are the focus of the rule at
issue in this case. DPPPs are essential to swimming pool maintenance systems. Powered
by electric motors that often require replacement, DPPPs help circulate pool water
through filters, chlorination devices, and heating mechanisms. One subclass of DPPP is
the pressure cleaner booster pump (“PCBP”), which supplies water pressure to propel
pool cleaning devices (typically equipped with brushes and vacuum-like suction) around
the floor and walls of a pool.
Through a “negotiated rulemaking for dedicated-purpose pool pumps,” the DOE
promulgated energy conservation standards for DPPPs via direct final rule (the “Pool
Pump Rule”) in early 2017. 82 Fed. Reg. 5650, 5657 (Jan. 18, 2017). During the
rulemaking process, the DOE formed a working group of government and industry
representatives, including Zodiac (a pool pump and pool pump motor manufacturer), to
develop recommended energy conservation standards for DPPPs. See id. Adopting the
eventual recommendations of the working group, the DOE divided DPPPs into four
categories (including a separate category for PCBPs) and set minimum energy
conservation standards for each one. Id. at 5651–52.
4 Not long after the Pool Pump Rule was finalized, industry members urged the
DOE to go further by complementing the energy conservation standards for DPPPs with
additional standards for DPPP motors. Zodiac submitted a comment to the DOE
expressing concerns “that replacement motors are not able to be covered under the DPPP
rule,” describing the lack of regulation as a “‘void’ [that] leaves open a significant
loophole which could likely drive a considerable amount of replacement motor business
to the lower cost, unregulated motors.” Appendix (“App.”) 925. The DOE took note and
held a public meeting on August 10, 2017, to discuss the development of energy
conservation standards for DPPP motors with interested parties, including Zodiac.
After the meeting, Zodiac and other industry members continued pushing for
additional standards through a joint petition to the DOE, which proposed a set of DPPP
motor standards that would “close the replacement motor loophole.” App. 240. The joint
petition suggested that the DOE issue a set of prescriptive requirements for DPPP motors,
including mandatory variable-speed control functionality for all DPPP motors with a total
horsepower (“thp”) of 1.15 or greater. In other words, more powerful DPPP motors
would have to be capable of operating at four or more discrete speeds. With regard to the
DOE’s purported authority to issue these standards, the joint petition provided: “DOE
should adopt our proposal for standards for DPPP motors using the Department’s
authority over ‘electric motors.’ . . . DPPP motors are electric motors, and electric motors
are already covered equipment.” App. 239.
The DOE issued a notice of proposed rulemaking (“NPRM”), which adopted a
modified version of the standards requested by Zodiac and others in the joint petition.
5 See 87 Fed. Reg. 37122 (June 21, 2022). The NPRM proposed efficiency and design
requirements for three classes of motors categorized by thp: (1) extra-small motors
(<0.5 thp) must operate at 69% energy efficiency, (2) small motors (0.5–1.15 thp) must
be equipped with variable speed control, and (3) standard motors (1.15–5 thp) must have
variable speed control as well. Id. at 37124, 37127–30. Mirroring the language in the
joint petition, the DOE described its authority to issue standards for DPPP motors as
follows: “EPCA authorizes DOE to regulate the energy efficiency of a number of
consumer products and certain industrial equipment. . . . This equipment includes those
electric motors that are DPPP motors, the subject of this document.” Id. at 37128 (citing
42 U.S.C. § 6311(1)(A) (defining “covered equipment”)).
Multiple industry members objected to the proposed energy standards via public
comment. Although the objections ranged from mechanical to economic, the foremost
complaint was that the variable-speed requirement for DPPP motors that could be used in
PCBPs was wasteful and unnecessary because PCBPs operate at only one speed. Most
PCBPs use motors in the small thp range of 0.5–1.15 and thus would be subject to the
variable-speed mandate, but Zodiac argued that the DOE should create a separate
category for PCBP motors, defined as any “motor used for a [PCBP],” exempt from that
requirement. App. 433. No commenter challenged the DOE’s statutory authority to issue
energy conservation standards for DPPP motors as a class of covered equipment under
the EPCA.
The DOE issued its final rule (the “Motor Rule”) with virtually no changes from
its NPRM. 88 Fed. Reg. 66966 (Sept. 28, 2023). As it did in the NPRM, the DOE
6 grounded its statutory authority in the EPCA’s provisions defining covered equipment
and establishing the procedures and criteria the DOE must adhere to when promulgating
new standards for such equipment. The Motor Rule also clarified an issue of preemption
that was left out of the NPRM, providing: “DPPP[] motors are not among the category of
electric motors for which Congress established standards and a rulemaking schedule in
42 U.S.C. 6313(b). Thus, State DPPP motor standards are not already preempted as a
matter of law.” Id. at 66971. State regulations would instead only be preempted “upon
the compliance date for Federal standards in th[e] final rule.” Id. at 66972. In response
to objections to the categorical variable-speed requirement for all motors above 0.5 thp,
the DOE offered two primary justifications. First, the DOE highlighted that “there are no
physical or technological distinguishing factors in a DPPP motor that could be used to
identify a particular end-use DPPP application (e.g., PCBP, self-priming, non-self-
priming). If sized correctly, a given DPPP motor could serve any of the DPPP
applications discussed in th[e] rulemaking.” Id. at 66984. Second, the DOE explained
that PCBPs still need to be adjusted to the optimal speed for their pool. Rather than
finding that optimal speed by using an excessively powerful motor and adjusting the
pressure downstream through physical relief valves that waste energy, the DOE reasoned
that it is more efficient to adjust pump speed at the motor itself. See id. at 66996
(“[B]ecause of the cubic relationship between pump speed and power, reducing the speed
of a pump by a small amount can yield large energy savings.”).
Zodiac, frustrated with the variable-speed requirement for motors compatible with
PCBPs, timely petitioned this Court for review of the DOE’s Motor Rule.
7 II. 2
The Administrative Procedure Act (“APA”) provides that courts must “decide all
relevant questions of law,” 5 U.S.C. § 706, which means this Court exercises plenary
review over the legal question of whether the EPCA authorizes the DOE to promulgate
energy conservation standards for DPPP motors, see Loper Bright Enters. v. Raimondo,
144 S. Ct. 2244, 2261–62 (2024). As for the arbitrary and capricious challenge, however,
the Court’s review is both narrow and deferential. Motor Vehicle Mfrs. Ass’n of U.S. v.
State Farm Mut. Auto Ins., 463 U.S. 29, 43 (1983). Although the Court must ensure that
the agency has articulated “a rational connection between the facts found and the choice
made,” an agency explanation of “less than ideal clarity” should not be invalidated if “the
agency’s path may reasonably be discerned.” Id. (first quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962); then quoting Bowman Transp. Inc. v. Arkansas-
Best Freight Sys., 419 U.S. 281, 286 (1974)).
III.
Zodiac argues that the Motor Rule is unlawful for at least one of two reasons. It
argues first that the EPCA does not authorize the DOE to issue energy conservation
standards for DPPP motors despite qualifying as “covered equipment.” Second, Zodiac
argues that even if the DOE were authorized to promulgate energy conservation standards
for these motors, the Motor Rule is arbitrary and capricious for failing to define an
2 We have jurisdiction under 42 U.S.C. § 6306(b)(2). Because Zodiac is an LLC organized under Delaware law, this Circuit is the proper venue for Zodiac’s petition. See id. § 6306(b)(1).
8 additional subclass of “PCBP motors” exempt from the variable-speed requirement. We
will address these arguments in turn below.
A.
While the parties have offered many thoughtful arguments as to the DOE’s
statutory authority and the proper interpretation of the EPCA, the Court cannot ignore the
procedural hurdle impacting our ability to consider the merits of this issue in the first
place. Neither Zodiac nor anyone else objected to the Motor Rule on the basis that the
DOE lacked authority under the EPCA to issue energy conservation standards for DPPP
motors. To the contrary, Zodiac argued in favor of the DOE’s authority to do so. By all
indications then, Zodiac failed to preserve its statutory authority argument.
Issue preservation doctrine generally requires litigants to present the arguments
they wish to raise on appeal to the trial court or, in this case, regulatory agency whose
decision they seek to challenge. The same issue preservation rules that avoid the unfair
surprise of a “‘revers[al] on grounds that were never urged or argued’ before [a] trial
court[],” Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 146 (3d
Cir. 2017) (quoting Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d 672, 680 (3d Cir.
1980)), have historically precluded petitioners like Zodiac from advancing an “argument
[that] was not raised during the rulemaking process” as well, Sw. Pa. Growth All. v.
Browner, 121 F.3d 106, 111–12 (3d Cir. 1997) (Alito, J.). Issue preservation “is a rule of
discretion, rather than jurisdiction,” but this Court tends to exercise that discretion to
foreclose unraised arguments unless there are “special circumstances” that justify
departing from this “general rule.” State of N.J. Dep’t of Educ. v. Hufstedler, 724 F.2d
9 34, 36 n.1 (3d Cir. 1983), rev’d on other grounds sub nom. Bennett v. New Jersey,
470 U.S. 632 (1985); see also Ctr. for Biological Diversity v. EPA, 75 F.4th 174, 183 (3d
Cir. 2023) (declining to entertain argument in APA challenge when petitioner “ma[de] no
mention of the objection in question” during rulemaking).
This principle is well established in our precedent. In this Court’s decision in
Southwestern Pennsylvania Growth Alliance v. EPA, for example, we declined to review
a legal issue that was not raised during rulemaking. 121 F.3d at 113. The petitioner in
that case challenged an EPA final rule denying Pennsylvania’s request to redesignate a
geographic region from a “nonattainment area for ozone” to one with “attainment status.”
Id. at 110. The petitioner raised an argument of pure statutory interpretation: the EPA
violated its mandatory duty under the Clean Air Act to respond to the redesignation
request within 18 months and was prohibited from considering ozone data outside of that
18-month period. Id. at 111. Yet this “intricate statutory interpretation argument” was
never presented to the EPA during the notice-and-comment period, and we held that it
was “inappropriate to consider this new issue” for the first time on appeal. Id. at 112.
We are bound by this decision, and, contrary to Zodiac’s suggestion, the Supreme Court’s
recent abrogation of Chevron does not call our precedent into question, as issue
preservation in review of agency action long predates Chevron. Compare Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper
Bright Enters., 144 S. Ct. 2244, with United States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33, 37 (1952)), and Hufstedler, 724 F.2d at 36 n.1 (citing Singleton v. Wulff,
428 U.S. 106, 120 (1976)).
10 There is no sound basis to address the merits of Zodiac’s argument that the DOE
lacked authority to issue regulations Zodiac requested itself. Zodiac argues in this case
that the DOE is not authorized to prescribe energy conservation standards for technology
just because the EPCA classifies it as covered equipment. During rulemaking, however,
Zodiac not only failed to raise that argument, but also took the opposite position. The
Court is mindful that at times we have overlooked a failure to preserve a purely legal
argument, see, e.g., La. Forestry Ass’n v. Sec’y U.S. Dep’t of Labor, 745 F.3d 653, 669
n.14 (3d Cir. 2014), but we would break no new ground by refusing to hear a “statutory
interpretation argument [raised] for the first time on appeal” that could have been made
during rulemaking, Sw. Pa. Growth Alliance, 121 F.3d at 112. On the record before us,
we see no compelling reason to entertain a statutory authority argument raised by the
same petitioner who had asked the agency to issue the rule. See S. Coast Air Quality
Mgmt. Dist. v. EPA, 472 F.3d 882, 891 (D.C. Cir. 2006) (“[A] party that presents a
winning opinion before the agency cannot reverse its position before this court.”).
Zodiac protests that its failure to preserve should be excused because the DOE did
consider its statutory authority and because the DOE reversed its position by disclaiming
the application of 42 U.S.C. § 6313 in its final rule. But both arguments fall flat. True
enough, courts often consider whether a potentially unpreserved issue was one that the
agency “did not have the opportunity to address in the first instance,” United Refining
Co. v. EPA, 64 F.4th 448, 456–57 (3d Cir. 2023), but we are not persuaded that the DOE
was (or should have been) on notice of the specific objections Zodiac raises for the first
time in this Court, see Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013)
11 (“[A]gencies have no obligation to anticipate every conceivable argument about why they
might lack . . . statutory authority.”). Nor do we find support in the record for Zodiac’s
accusation of agency flip-flopping. The DOE’s clarification regarding Section 6313,
which related exclusively to whether state laws were already preempted, does not excuse
Zodiac’s decision not to object to the DOE’s authority to issue the rule. If there had been
a sua sponte reversal of position on the DOE’s claim of statutory authority, that would
undoubtedly raise concerns about whether Zodiac had a reasonable opportunity to present
its precise objections. See Riffin v. Surface Transp. Bd., 733 F.3d 340, 343 (D.C. Cir.
2013). Yet no such reversal occurred, as evidenced by the virtually identical “Authority”
sections of the NPRM and final Motor Rule. Compare 87 Fed. Reg. at 37128–29 (citing,
inter alia, 42 U.S.C. §§ 6311(1)(A), 6313, 6316(a), 6295), with 88 Fed. Reg. at 66971–72
(citing, inter alia, 42 U.S.C. §§ 6311(1)(A), 6316(a), 6295). If any party has reversed its
position, it is Zodiac, and for that reason we decline to take up Zodiac’s unpreserved
challenge.
B.
On its arbitrary and capricious challenge, Zodiac faces a high hurdle given the
deference we must afford to the DOE. See State Farm, 463 U.S. at 43. In an attempt to
characterize the Motor Rule’s variable-speed mandate as arbitrary and capricious, Zodiac
advances several arguments, but none have merit.
Zodiac first argues that the DOE failed to explain reasonably why it did not create
a separate category for PCBP motors, but this is belied by any plain reading of the Motor
Rule. The Motor Rule provides that DPPP motors were categorized by thp because
12 “[h]orsepower is a critical performance attribute of a DPPP motor,” 88 Fed. Reg. at
66984, which Zodiac does not contest (nor could it seriously do so, given its
recommendation to divide DPPP motors by thp in the joint petition). Zodiac also has no
answer to the DOE’s finding, supported by the record, that DPPP motors of the same size
can be used for multiple DPPP end-uses, including PCBPs, so a DPPP motor cannot be a
“PCBP motor” until and unless it is in fact installed in a PCBP. And even if the DOE
were for some reason required to consider end-use applications (notwithstanding the
fungibility of the motors themselves), the Motor Rule speaks to this too, noting that
PCBP applications make up a miniscule fraction of DPPP motor uses.
Zodiac also contends that the DOE failed to consider a panoply of important
economic factors, but again the Motor Rule itself tells another story. Zodiac claims that
the DOE failed to consider the Motor Rule’s economic impact on pump manufacturers,
but the DOE explicitly analyzed the potential increased costs for pump manufacturers as
the main clients of DPPP motor manufacturers in the distribution chain. See 88 Fed. Reg.
at 66992. Zodiac also claims that the DOE failed to consider a particular study on an
economic factor known as the “payback period,” but the DOE acknowledged Zodiac’s
preferred study and explained why the DOE considered it less persuasive compared to
other studies which, for example, “analyze[d] a larger consumer sample.” 88 Fed. Reg.
at 67003; see also Newspaper Ass’n of Am. v. Postal Regul. Comm’n, 734 F.3d 1208,
1216 (D.C. Cir. 2013) (“When, as here, an agency is making ‘predictive judgments about
the likely economic effects of a rule,’ we are particularly loath to second-guess its
analysis.” (quoting Nat’l Tel. Coop. Ass’n v. FCC, 563 F.3d 536, 541 (D.C. Cir. 2009)).
13 Zodiac’s contention that the DOE failed to consider the relationship between the Motor
Rule and the prior Pool Pump Rule, fares no better. See 88 Fed. Reg. at 67010–11.
In its final effort to paint the Motor Rule as arbitrary and capricious, Zodiac insists
that “PCBP motors” are special because PCBPs operate at one speed, but the DOE
cogently explained in its Motor Rule why variable-speed functionality is (at least) a
reasonable requirement even for DPPP motors used in single-speed applications. The
DOE’s explanation is not difficult to grasp: even if a pump will only operate at one
speed, setting the speed that is sufficient but not greater than necessary at the motor is
more efficient than setting a motor to its maximum speed and diverting (that is, wasting)
any excess pressure through downstream modifications such as “pressure relief valve[s]”
or “pressure discs.” 88 Fed. Reg. at 66976, 66991. With no response to this
straightforward explanation, Zodiac instead unpersuasively argues that the DOE failed to
consider whether variable-speed motors lessen the utility or performance of PCBPs (an
issue that was never raised in comments but is still addressed in the Motor Rule) or that
the DOE’s definition of variable-speed functionality is unjustifiable (despite Zodiac’s
parent company urging the DOE to adopt the exact industry standard Zodiac now
challenges). At minimum, the DOE’s Motor Rule falls “within a zone of
reasonableness,” FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021), and
demonstrates “a rational connection between the facts found and the choice[s] made,”
State Farm, 463 U.S. at 43. That is sufficient for the Court to hold that the Motor Rule is
not arbitrary and capricious.
14 IV.
For the foregoing reasons, we will deny Zodiac’s petition for review.