A Fifth Circuit Ruling on Gas Stoves, or Is It?

Charles Rotter

The Fifth Circuit decided State of Mississippi v. Department of Energy yesterday. Seven states petitioned. Seven states won. The Department of Energy’s rule on home cooking appliances goes back to the agency.

That is the easy part. The interesting part is who was defending the rule, and what that same department was doing across town while it did.

First, let me take some air out of the balloon.

This was not the gas stove ban

You will see headlines today saying the court killed the Biden gas stove rule. That oversells it.

In February 2023, DOE proposed efficiency standards for cooking products. Manufacturers said the standards would amount to a ban on gas ranges. The adverse comments arrived by the truckload. DOE backed off.

What replaced the proposal was a negotiated settlement. Manufacturers, through the Association of Home Appliance Manufacturers, sat down with efficiency advocates and worked out a joint recommendation. DOE adopted it in February 2024 as a Direct Final Rule. The standard was the weakest of the three levels DOE had analyzed. By DOE’s own numbers, 97 percent of gas cooking tops and 77 percent of electric smooth element cooking tops would already meet it in the first year of compliance.

The American Public Gas Association supported the rule and still noted what the savings came to: about $3.09 per consumer across a 14.5 year product life. Six hundredths of a cent per day. (Your stove was never in danger. Neither was your electric bill.)

So the substantive stakes were small. Anyone telling you this decision saved your range is selling something.

But…the procedural stakes were not small at all.

What a Direct Final Rule is, and why it used to be uncontroversial

Under the ordinary process, an agency proposes a rule, takes comments, answers them, and issues a final rule. Direct final rulemaking skips the front half. The agency publishes the rule as final. It takes effect unless somebody objects.

EPA invented the practice in the 1980s for Clean Air Act state implementation plans. Those were routine and drew no comments at all. Running a comment period nobody would use was delay for its own sake. So EPA started publishing them as final, with a standing promise to withdraw if anyone complained.

The operative word is anyone. One adverse comment killed a DFR. Judge Oldham’s opinion compares it to unanimous consent in the Senate, which is exactly right. The shortcut worked because nobody objected. The moment somebody objected, the shortcut closed and the agency went back to notice and comment.

That is why there is almost no case law here. Nobody sued, because agencies withdrew. After roughly a decade of using DFRs, EPA reported in 1999 that not one had ever drawn a legal challenge.

Congress wrote the practice into the Energy Policy and Conservation Act in 2007. DOE had complained that ordinary rulemaking bogged down even where everyone agreed. Congress handed over the shortcut and attached the conditions that made it safe: a joint statement from parties “fairly representative of relevant points of view,” a comment period of at least 110 days, and a duty to withdraw if adverse comments “may provide a reasonable basis” for doing so.

What the court held

Two holdings, and the first one is the sleeper.

Timing. The DOE argued that the states filed too late. EPCA gives 60 days from the date a rule is “prescribed.” DOE said that clock started at publication on February 14, 2024. The states filed comments on June 3, the last day of the comment period. DOE rejected those comments on August 12. The states petitioned 59 days later.

Judge Oldham took the argument apart. EPCA says a withdrawn DFR “shall not be considered to be a final rule.” So a DFR pulled on day 120 was never final at all. DOE’s reading required the rule to be final on day one and not final on day 120:

Going from dead to alive is the great promise of Holy Scripture, but the Department cites no authority for its relevance to administrative law.

The practical objection is worse than the textual one. Congress gave the public 110 days to comment. DOE’s reading makes the last 50 of those days worthless, because the window for judicial review would already have shut. File your comment on day 61 and you have commented your way out of court. DOE could take ten thousand devastating comments in the back half of the period and ignore every one of them, safely.

Merits. The court found two defects, either one sufficient.

The joint statement was not fairly representative. EPCA names States as stakeholders, in so many words. DOE pointed to California, Massachusetts, and New York. Those three did not sign the statement. They filed later comments supporting it, through state agency staff rather than as sovereigns. Meanwhile a long list of states had opposed nearly identical standards in the 2023 proceeding, and DOE knew it. The court’s assessment of whether those three represent a cross section of the states is dry: it

“cannot be contended with a straight face.”

Oldham then runs the argument out to its logical end, which is the part worth noting closely. If three friendly states satisfy fair representation, ATF could issue a gun regulation by DFR after polling Texas, Oklahoma, and Alabama. EPA could set ethanol policy after consulting Iowa and Nebraska. A tool built for consensus becomes a tool for avoiding it.

The second defect was the ban on linear power supplies. DOE required switching supplies, which draw less power. Switching supplies are also more complex. Utah and Montana commented that more complex systems fail more often, cited engineering sources, and pointed out that shorter product life means more replacement, which means more energy burned at the manufacturing and disposal ends. DOE did not analyze reliability. EPCA requires it to weigh maintenance costs, utility, and performance before calling a standard economically justified.

And the trigger Congress set is low. Comments need only “may provide a reasonable basis” for withdrawal. Not proof.

Just possibility.

Now the interesting part.

The Biden DOE moved to dismiss in December 2024. Fine. That is the administration that wrote the rule.

In April 2025, the current DOE filed a merits brief defending the same rule and asking the court to throw out the petition. In September 2025, it defended the rule at oral argument.

On May 16, 2025, one month after that brief, DOE published proposed rules to rescind the amended design requirements for conventional cooking tops and conventional ovens. The stated reason: the requirements “are not economically justifiable.”

The oven design requirement is the power supply rule. It is the same provision Utah and Montana attacked as economically unjustified. It is one of the two grounds the Fifth Circuit granted the petition on.

So in April, DOE told a federal court the requirement cleared EPCA’s economic justification test and the states’ contrary comments gave no reasonable basis for withdrawal. In May, DOE told the Federal Register the requirement was not economically justifiable.

Same department. Same regulation. Same year. One month apart.

It gets better. Stay with me.

In May 2026, DOE issued a Direct Final Rule of its own, this one inserting sunset provisions into its regulations under an executive order on zero based regulatory budgeting. DOE said it expected no significant comment and considered the action uncontroversial. It set an effective date of July 13, 2026, opened a comment period, and promised to withdraw the rule and go to notice and comment if it drew significant adverse comments.

It drew adverse comments. In July 2026, DOE withdrew the rule and moved to notice and comment.

Read that against the litigation. DOE honored the withdrawal norm on its own rule, exactly as it promised, roughly one year after telling the Fifth Circuit it was not obliged to honor the same norm when seven states objected to the stove rule. The states were asking DOE to do in 2024 what DOE did for itself in 2026. In other words, the Trump administration was much more compliant with the letter and intent of the law than the Biden administration.

And then there is the Process Rule. On July 7, 2026, DOE published a proposal to overhaul the procedures governing appliance standards. Among other things, that proposal would tighten the Direct Final Rule process and add procedural steps for negotiated rulemaking. The DOE is now asking to constrain the tool it went to court to protect.

Why would anyone do that?

Here is the charitable reading, and I think most of it holds.

DOE was not defending stove standards. It was defending two powers.

The first is the timing rule. If the 60 day clock runs from publication, late petitions die at the courthouse door. Every agency wants that, in every administration.

The second matters more. DOE claimed broad discretion to decide for itself whether adverse comments give a reasonable basis for withdrawal. That is the whole ballgame. It is the difference between a shortcut any objector can veto and a shortcut the agency controls. DOE wanted the second version.

A deregulatory DOE has obvious uses for both. It is running a large rescission program right now, and rescissions are rules too. A DFR that survives objection is a fast, cheap way to move.

There is also the plain institutional answer. The Justice Department defends rules on the books. Confessing error mid-briefing is costly and rare, and it teaches courts to treat the government’s litigating positions as disposable.

I find that mostly persuasive but still incomplete. Declining to confess error is one thing. Filing an affirmative brief arguing that a specific design requirement is economically justified, while your own agency tells the public the same requirement is not economically justifiable, is a different thing. Somebody had to write that sentence.

There is a second problem with the charitable reading, and it is the July 2026 Process Rule proposal. If DOE wanted the expansive version of the DFR for its deregulatory work, why propose to tighten it? The answer, I think, is that lawyers defend the last inch of agency power by reflex, on a schedule that has nothing to do with what the policy shop is doing. Nobody sat in a room and chose to argue both sides. The department is large enough that it did not have to.

It also did not work. DOE lost the timing argument and lost the merits. The tool it went to court to protect came back smaller than it went in, and by then DOE was asking to make it smaller anyway.

The honest caveat

Judge Haynes concurred in part and did not sign the reasoning. She wrote that DOE “makes some good points” on jurisdiction and joined only the conclusion that the court had authority to hear the case. On the merits she would have remanded to DOE to reconsider in light of the record, full stop, without holding that EPCA compelled withdrawal.

So the judgment is unanimous and the opinion is two judges. Credit where it is due: Haynes flagged a real difficulty, and DOE’s timeliness argument was not frivolous. It was wrong, but it was not frivolous. How far Oldham’s reasoning travels outside the Fifth Circuit is a separate question from who won today.

What happens now

The petition is granted and the matter returns to DOE. If DOE wants these standards, it runs an ordinary notice and comment rulemaking. Given that it spent the past year proposing to rescind the pieces, that seems unlikely.

Or maybe not. I went looking for the final rescission rules and could not find them. Comments on the cooking top and oven proposals closed on July 15, 2025. Thirteen months later I find no final rule in the Federal Register, and the efficiency advocates who track this product line still list the 2024 standard as current, effective 2028, with the next review due in 2030. That is absence of evidence rather than proof, but the trackers on both sides of this fight would have noticed.

There is a reason these things stall. EPCA lets DOE amend a standard. It does not let DOE weaken one. Every rescission has to thread that needle, which is slow, and which is part of why DOE has spent 2026 working on the procedures instead of just the standards.

Compliance with the 2024 standards was not due until January 31, 2028, so nobody is under real time pressure either way.

The durable result is the holding on Direct Final Rules. Any agency reaching for this shortcut now knows two things. The clock for judicial review does not start until the agency adheres to the rule. And the duty to withdraw on a reasonable basis is a duty a court will enforce, not a judgment call the agency grades itself on.

Seven states filed comments. The comments raised real engineering and representation problems. The statute said those comments had to be taken seriously. And the court made sure they were.

The opinion in State of Mississippi v. Department of Energy, No. 24-60529 (5th Cir. Aug. 11, 2026), is available from the Fifth Circuit. DOE’s August 2024 confirmation notice is in the Federal Register.

H/T Frazier, sweet-ol-bob