Update About Industry Litigation Against DOE

MHI and TMHA continue to fight for the industry in federal court regarding the Department of Energy’s (DOE) misguided energy efficiency standard. Our litigation challenge is based in part on DOE’s failure to consult sufficiently with HUD as required by law. As a result of this litigation, the industry secured years of additional time for the implementation of this problematic standard, which was originally set to go into effect in June 2023. Originally, the DOE had set an arbitrary and unrealistic 1-year deadline for implementation. However, the DOE’s standards do not align with the HUD Code, did not take current manufactured home construction methods into consideration, and failed to address testing, inspection and certification. In May, the DOE capitulated to the failure to address testing and compliance and halted the implementation of the rule until they complete these guidelines. The DOE is still in the process of completing those guidelines.

The latest skirmish in court was related to the DOE’s obligation to provide the full administrative record of the energy standard rulemaking process to the court. As a part of this submission, the DOE’s included a declaration by a career engineer about alleged meetings about the rule that took place between DOE and HUD that supposedly met its consultation burden under the law. We argued that DOE failed to establish the necessary grounds for inclusion of the declaration. We maintained that such a declaration was a post-hoc, litigation-driven rationalization made only in response to our litigation challenging the rule. We asked the Court not to allow the declaration to be part of the Administrative Record or at least to allow the industry to have the opportunity to ask questions of the engineer about the statements made in the declaration (i.e., to depose the engineer). Last week, the court denied the industry’s request.

While we are disappointed with this ruling, all of our legal challenges to the Final Rule remain intact. In addition, we are still able to challenge the veracity of the declaration before the court as we make our case that the DOE did not meaningfully consult with HUD about this standard and they failed to consider key technical elements of how our homes are built in establishing the standard. We will argue that the evidence provided by DOE, including this declaration, is insufficient to establish meaningful consultation between DOE and HUD leading up to the issuance of the Final Rule.

We will keep you posted on the next phases of the lawsuit. In the meantime, MHI continues to encourage Congress to pass legislation that establishes HUD as the primary regulator of all construction standards for manufactured housing, which has been the intent since the law establishing the partnership between the industry and HUD was passed 50 years ago. Ultimately, we are seeking a constructive resolution of this issue, where Congress restores the role of HUD as the one federal regulatory agency overseeing all elements of the construction of our homes.