By Ronald L. Perl, Esq.

The high efficiency furnace rules case has taken a new procedural turn. On May 1, 2013, a panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an emergency order staying implementation of the new rules requiring non-weatherized gas furnaces installed in the northern regions of the country to be 90% efficient.  That order did not resolve the case but rather simply put on hold the application of the proposed regulations until the court actually rules on the propriety of a settlement agreement entered by the parties. The effect of this ruling is that the new standards did not take effect on May 1, 2013 as initially proposed, but no decision has yet been made whether they will take effect on a future date.

For those who have been following the issue, in 2011, the U.S. Department of Energy (DOE) promulgated new energy conservation standards for air conditioners and heating units. A portion of the new standards applies to new installations of non-weatherized gas furnaces on or after May 1, 2013 and increases the efficiency requirements of those units from 78% to 90%. A lawsuit challenging the furnace standards on both substantive and procedural grounds was filed by the American Public Gas Association. The lawsuit was settled last year, and for several months, the settlement has been awaiting the approval of the appeals court. The DOE announced in April that it would not begin enforcing the new rules before the court rules on the settlement agreement. The recent court ruling neither approved nor disapproved the settlement but stayed implementation of the new rules, thus officially preventing the DOE from enforcing the rules for the time being. It also set some procedural requirements for the eventual hearing on the merits.

The proposed standards are significant to community associations because the new furnaces vent much differently than existing ones and require modifications to units and common elements, which may be difficult or impossible because of space limitations or building code issues.

You can view the District of Columbia Circuit’s order here.

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By Ronald L. Perl, Esq.

The Department of Energy (DOE) has announced that it will not enforce the rules requiring more efficient residential natural gas furnaces that were to go into effect May 1, 2013, pending the outcome of the lawsuit challenging those rules and an anticipated settlement requiring re-evaluation of the standards to be applied. The new rules would have required at least 90% efficiency for non-weatherized gas furnaces installed in New Jersey and other northern states after April 30. The proposed standards are significant to community associations because the new furnaces vent much differently than existing ones and require modifications to units and common elements, which may be difficult or impossible because of space limitations or building code issues.

The lawsuit has resulted in a settlement that would vacate the rules, but that settlement requires the approval of a Federal Appeals Court, which has not yet scheduled a hearing on the issue. Although the rules remain intact, the DOE will not enforce them. According to the DOE’s statement, “In an exercise of its enforcement discretion, DOE will, during the pendency of the litigation, act in a manner consistent with the terms of the settlement agreement with regard to the enforcement of the standards.”

Therefore homeowners may continue to install residential natural gas furnaces that do not meet the 90% efficiency rating, pending resolution of the case.

You can view the Enforcement Policy Statement here.

For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.

By Ronald L. Perl, Esq.

In a previous post, we discussed a settlement of a lawsuit challenging the U.S. Department of Energy’s new furnace efficiency standards. There is an agreement to scrap the standards, which would require new gas furnaces installed in our region to increase efficiency from 78% to 90%. However, the settlement requires the approval of a Federal Appeals Court, which has not scheduled a hearing on the issue. The new standards are significant to community associations because the new furnaces vent much differently than existing ones and require modifications to units and common elements, which may be difficult or impossible because of space limitations or building code issues. The new standard will go into effect on May 1, 2013 unless the Court acts before that time.

In a recent development, one of the parties to the case, the Air-Conditioning, Heating and Refrigeration Institute (“AHRI”) has filed a motion to stay the implementation of the standards until after the Court rules on the settlement. If the Court approves the settlement, no further stay will be necessary. However if the Court does not approve the settlement, AHRI wants the standards to be delayed for at least six months after the Court’s ruling. There is no real opposition to the stay; the DOE’s reply to the motion just wants the stay limited to the portion of the rule that is the subject of the litigation. The need for the stay is obvious, since it is likely that the settlement vacating the rule will ultimately be approved. Of course, the Court can solve the problem by simply acting quickly to approve the underlying settlement.  Stay tuned — we will keep you updated when there are further developments.

For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.

By Ronald L. Perl, Esq.

On January 14th, the American Public Gas Association (“APGA”) and US Department of Energy (“DOE”) submitted a joint motion to the D.C. Circuit Court of Appeals to vacate new regional efficiency standards for gas furnaces that were scheduled to go into effect on May 1, 2013. These new standards, which were originally published at 76 Fed. Reg. 37408 (June 27, 2011), had created concerns for community associations because of venting requirements that implicated general common elements. Specifically, the now vacated standardswould have required new gas furnaces installed in our region to increase efficiency from 78% to 90%. According to the APGA, who was the plaintiff in this action, 90% efficient furnaces require expensive venting modifications, including side venting. This is significant to community associations because side venting may be difficult or impossible because of space limitations or building code issues. Associations will therefore face requests to install new venting through common element walls or other space. The APGA challenged the standards on both substantive and procedural grounds. This settlement, if approved by the court, will apparently cause the DOE to go back to the drawing board on these standards and reopen the rulemaking process. The joint motion can be found here.

For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.