Department of Energy (DOE) Manufactured Housing Energy Rule Litigation Update from Manufactured Housing Association for Regulatory Reform (MHARR); MHI – FEA
Detail-minded manufactured home industry professionals should recall that the Manufactured Housing Institute (MHI) and the Texas Manufactured Housing Association (TMHA) launched a legal action against the Department of Energy (DOE) with respect to the DOE’s manufactured housing energy rule. A case update was emailed by the Manufactured Housing Association for Regulatory Reform (MHARR) to MHARR manufacturers, MHARR state affiliates, and the MHARR Technical Review Group on the case on 11.19.2024. But on 11.20.2024, circa 10.10 AM ET, there is no update visible on the MHI website’s home page or news section. The MHARR update is provided below in Part I. The screen captured documentation for the lack of such a similar update from MHI on their own website is reflected in the two screen captures below.
1) Per MHI home page under the “Latest News” section of their website home page is 11.4.2024.
2) From the MHI “all news” News Landing Page is the following.
What’s New
MHI News
The latest news to give you a full perspective on the manufactured housing industry. From manufacturers to land-lease communities, retail to financial services, and suppliers to installers, we help you keep abreast of what’s happening in every aspect of the industry.
3) Under that statement is the following on 11.20.2024 as of the time shown.
4) To clarify the above, MHProNews asked left-leaning Google artificial intelligence powered Gemini the following.
The latest news to give you a full perspective on the manufactured housing industry. From manufacturers to land-lease communities, retail to financial services, and suppliers to installers, we help you keep abreast of what’s happening in every aspect of the industry.” Define what the term “full perspective” should mean to a reasonably intelligent adult? For example, if significant news is missing, can the term “full perspective” legitimately be applied?
The term “full perspective” on the Manufactured Housing Institute (MHI) website suggests a comprehensive view of the manufactured housing industry, covering all relevant aspects and providing unbiased information. This would include both positive and negative news, industry challenges, and potential solutions.
However, if significant news is missing, especially news that might be critical of the industry or its members, it could be argued that the “full perspective” claim is not entirely accurate. A “full perspective” should provide a balanced view, including all relevant information, regardless of whether it is positive or negative. …”
5)
Ok. Let’s presume for discussion’s sake that the MHI website is missing some key information that would be considered part of a “full perspective,” perhaps because the news is negative and may not be a good reflection on MHI’s efforts. Specifically, there is litigation that MHI and the Texas Manufactured Housing Association (TMHA) launched with the stated aim of stopping enforcement of a the Department of Energy (DOE) manufactured housing energy rule from going into effect. There was an unfavorable ruling from the judge in the case. That said, is there any potential liability on the part of MHI and/or their board members when they make a claim – i.e.: “full perspective” – yet fail to provide news that may not shed a favorable light on MHI and its leadership? Related, what risks are there for those who trust that MHI is giving a “full perspective” when they apparently are failing to do so?
Potential Liability and Risk
While the specific legal implications of MHI’s claims of a “full perspective” would require a detailed legal analysis by experts, there are potential areas of concern:
Potential Liability for MHI:
Misrepresentation: If MHI knowingly omits or misrepresents information to create a false impression of a “full perspective,” they could be liable for misrepresentation or deceptive practices.
Breach of Contract: If MHI has contractual obligations to its members or other stakeholders to provide accurate and complete information, failing to do so could constitute a breach of contract.
Regulatory Violations: Depending on the specific circumstances, MHI’s actions could violate specific regulations or industry standards.
Risks for Those Trusting MHI’s “Full Perspective”:
Misinformed Decisions: If individuals rely on MHI’s information to make important decisions, such as investments or business strategies, they may make suboptimal choices based on incomplete or inaccurate information.
Financial Loss: In some cases, relying on misleading information could lead to significant financial losses.
Damaged Reputation: If individuals or organizations are associated with MHI and its “full perspective” claim, they may suffer reputational damage if it is later revealed that the information was incomplete or inaccurate.
It’s important to note that these are potential risks, and the actual legal and financial consequences would depend on the specific facts and circumstances of each case.
To mitigate these risks, individuals and organizations should:
Verify Information: Don’t rely solely on MHI’s information. Seek out information from multiple sources, including industry publications, government agencies, and legal databases.
Consult with Experts: If making significant decisions based on industry information, consult with legal and financial experts.
Stay Informed: Keep up-to-date on industry news and developments, especially through independent sources.
Be Critical: Question the information provided by MHI and other organizations, and consider alternative perspectives.
By taking these steps, individuals and organizations can better protect themselves from the potential risks associated with relying on incomplete or inaccurate information.”
With that backdrop, here is the MHARR press release.
A U.S. District Court magistrate judge has denied a motion filed by the plaintiffs in the pending industry litigation against the U.S. Department of Energy (DOE) “energy conservation” standards for manufactured homes, for supplementation of the rulemaking administrative record submitted and certified by DOE. A copy of the court’s opinion and order is attached.
The motion filed by Plaintiffs, in relevant part, had sought permission to supplement the DOE record with additional information regarding both the economic impact of the DOE standards as well as the administrative process ultimately leading to the proposal and adoption of those standards.
The denial of this motion means that the case will now proceed to the filing of dispositive (i.e., summary judgment) motions and cross-motions on the merits of the case, based on the information and evidence contained in the official administrative record, as is typical in cases brought pursuant to the federal Administrative Procedure Act (APA).
Pursuant to an amended scheduling order for the case entered by the court in June 2024 (copy attached), briefing on the dispositive motions will be completed by February 28, 2025, with (most likely) an in-court oral argument and decision to follow thereafter.
While MHARR is now actively pursuing the repeal and withdrawal of both the DOE manufactured housing energy standards and enforcement regulations with President-Elect Trump and his transition team, it is essential that the pending court litigation be maintained and pursued at least until such time that the standards and enforcement regulations are withdrawn and/or repealed, as President Trump did with a prior DOE proposed manufactured housing energy standards rule in early 2017. Failure to maintain the litigation could create a window of opportunity for DOE to push through implementation of both sets of regulations prior to action by President Trump (as requested by MHARR) to repeal those standards after his inauguration on January 20, 2025. Such a window of opportunity for DOE would potentially create a worst case scenario for both the industry and consumers, while making the repeal and/or withdrawal of those regulations significantly more difficult.
MHARR will continue to aggressively seek the repeal and withdrawal of these standards with the incoming Trump Administration and will also continue to carefully monitor the ongoing federal court litigation regarding the DOE regulations.
Manufactured Housing Association for Regulatory Reform (MHARR)
1331 Pennsylvania Ave N.W., Suite 512
Washington D.C. 20004
Phone: 202/783-4087
Fax: 202/783-4075
Email: MHARRDG@AOL.COM Website: www.manufacturedhousingassociation.org
Attached to the MHARR release to the parties as shown were the following documents. Note the terminology “procedural ruling” were not part of the original PDFs, they were added by MHProNews for upload – organizational purposes.
Part II – MHProNews Supplied Additional Facts-Evidence-Analysis
1) The magistrate judge in the MHI-TMHA case vs. DOE ruled against MHI on supplementation of the bare bones DOE administrative record. Per an informed source, that magistrate has reportedly consistently favored the government. Denial of supplementation of the record, unless the ruling is reversed by presiding judge Ezra), could ultimately lead to judgment against MHI on the merits. Several prior articles on the topic from MHARR and/or MHProNews (as shown) are linked below for detail and context.
5) However, the ‘efforts’ by MHI should be considered in the light of documents and revelations from MHARR and the DOE which indicate that for some time, MHI was apparently working with DOE to advance the energy standards that they now claim to be attempting to thwart.
First, this report apparently demonstrates that MHARR was correct and MHI was posturing. but worse than posturing, the documents obtained by MHProNews via a DOE FOIA revealed that MHI was apparently working behind the scenes to advance the kind of regulatory effort that MHI claimed they wanted to stop. If DOE’s attorneys make that argument, several troubling developments might occur. FWIW, MHProNews notes that while MHARR essentially offered to help with the legal challenge launched by MHI-TMHA on 2.14.2023, they may be better off now that MHI has decided to go without MHARR involvement. Any failure on the part of MHI-TMHA and their attorneys will be all ‘on them,’ not on MHARR. See this report, dated October 16, 2021, which once more reflects why MHProNews readers stay engaged and loyal. Since MHI’s purported duplicity was grasped, our reports with analysis in recent years have routinely stood the test of time. This report is still relevant today on several levels. https://www.manufacturedhomepronews.com/a-more-costly-re-boot-of-fatally-flawed-fundamentally-tainted-sham-doe-negotiated-rulemaking-process-smoking-gun-docu/
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6) The MHI-TMHA lawsuit was only launched at the ‘last minute’ and not promptly upon the DOE ruling. MHI is not known to have supplied a public explanation for their delay in starting such a suit months after the DOE ruling which their own attorneys said were going to cause “irreparable harm” to the manufactured home industry. As MHProNews exclusively reported, a parallel case by part of the gas industry promptly initiated litigation as soon as the DOE handed down a regulatory stance that they felt would harm that industry’s interests.
7) The takeaway is that MHI appears to be posturing efforts while only taking steps once they were embarrassed or ‘forced’ into doing so as a result of reporting by MHARR, MHProNews, and MHLivingNews.
8) During the timeframe that this litigation has been occurring consolidation of the manufactured housing industry’s production sector has continued. Examples of that are shown below.
9) This facts-evidence and expert analysis perspective is supported by insights from Carol Roth. Roth has been cited by left- and right leaning media.
Both regulations and taxes are barriers for smaller firms that are more easily navigated by larger firms.
10) Related to the concerns raised by Roth is the notion of regulatory capture. According to Investopedia is the following on that subject, which may directly relate to what is occurring as opposed to what is being postured by MHI and its leadership.
Regulatory capture is a process by which regulatory agencies become dominated by the interests of those they were originally charged to regulate. In this state, the regulatory agency may directly or indirectly work to serve the interests of private firms rather than the general public.
Regulatory bodies, like the people who comprise them…become with some exceptions, either an arm of the industry they are regulating or senile.” So said John Kenneth Galbraith.
11) It should be recalled that the DOE energy rule was withdrawn by President Donald Trump (R-45th U.S. president) first administration. It was only litigation by the Sierra Club that resulted in a reversal of that process. Sierra Club is funded in part from money from Warren Buffett linked nonprofits. Buffett led Berkshire Hathaway (BRK) is the parent company to Clayton Homes and other manufactured housing industry suppliers and lenders.
12) Meaning, in the backdrop of MHI’s apparent posturing efforts to stop what they helped foster at DOE in the way of regulations is the reality that regulations are apparently being used as a tool for larger businesses to thwart performance of all businesses which in turn produces more industry consolidation.
13) MHARR is well aware of this history, as they have been keenly involved in exposing it. There are pages of reports on the DOE issue from MHARR, MHProNews, and MHLivingNews. In stark contrast, the information from MHI made available to the public is skimpy. With that in mind, when Trump became the president-elect, MHARR reached out to the transition team to engage with them on the DOE energy rule issue with an apparent eye to once more killing a regulation that they had previously helped kill.
14) On 11.20.2024, WMAL and nationally syndicated pundit Dan Bongino said that ‘The left is good at telling you a story instead of the story.’ That observation may apply to MHI. To illustrate how skimpy the news from MHI is on made publicly available on the subject of the DOE is the following screen grab and related annotations.
So, if someone was relying on MHI for news, it would appear from the “news” on the DOE energy rule that the only activity with respect to manufactured housing energy standards has occurred in roughly the last 18 months.
Apparently, MHI ‘memory holed’ their previous news on the DOE energy rule that occurred prior to their website makeover in the late summer of 2023.
According to left-leaning Wikipedia: “A memory hole is any mechanism for the deliberate alteration or disappearance of inconvenient or embarrassing documents, photographs, transcripts or other records, such as from a website or other archive, particularly as part of an attempt to give the impression that something never happened.[1][2]”
Google’s Gemini said: “An Orwellian memory hole is a mechanism used to deliberately get rid of or change inconvenient or embarrassing documents, records, photographs, or transcripts. The term comes from George Orwell’s 1949 dystopian novel Nineteen Eighty-Four, where the Party’s Ministry of Truth used memory holes to rewrite history and keep up with the ever-changing Party dogma.”
14) The legislation that gave rise to the DOE energy rule became federal law in 2007. Google and Bing’s AI could not find the date that the MHI website was launched, but MHI is believed to have had a website since the mid-to-late 1990s, once websites by trade groups became more common. So, even though MHI has had their own web presence for longer than MHARR or MHProNews, both of those organizations have more public content than MHI does?
15) Pivoting back to the specifics of the DOE energy rule threat to the industry. With the victory of the Trump-Vance ticket in the 2024 election, and with Republicans apparently destined to control both the House and the Senate, the landscape that manufactured housing is operating in has changed. MHARR reached out to Trump, et al to get them to withdraw and repeal the existing DOE rules. So far, MHI has not even reported on what steps, if any, they have taken.
16) MHProNews reached out to Bill Boor and other MHI leaders/communications professionals. More on that in a planned follow up.
17) The bottom line appears to be as follows.
a) MHI was documented to have directly engaged with DOE at getting an energy rule (see Part II #5, above). MHI sued, but only belatedly and only after months of public pressure from MHARR, MHProNews, and MHLivingNews.
b) In stark contrast, the gas industry sued the DOE essentially immediately after their regulations were issued which that industry deemed harmed their members interests.
c) Then, after MHARR’s repeated (and successful) efforts to get the DOE rule killed before, Clayton Homes and Berkshire Hathaway linked Warren Buffett apparently provided funding via nonprofits that in turn flowed to the Sierra Club which sued the Trump-era DOE to get the energy rule process restated.
d) MHI’s website has been culled of much of its own history prior to the launch of their revised website in the late summer of 2023. MHI’s so-called memory hole approach is thus hiding news, instead of creating “The latest news to give you a full perspective on the manufactured housing industry.”
Per Gemini (see preface above):
Potential Liability for MHI:
Misrepresentation: If MHI knowingly omits or misrepresents information to create a false impression of a “full perspective,” they could be liable for misrepresentation or deceptive practices.
Breach of Contract: If MHI has contractual obligations to its members or other stakeholders to provide accurate and complete information, failing to do so could constitute a breach of contract.
Regulatory Violations: Depending on the specific circumstances, MHI’s actions could violate specific regulations or industry standards.
Risks for Those Trusting MHI’s “Full Perspective”:
Misinformed Decisions: If individuals rely on MHI’s information to make important decisions, such as investments or business strategies, they may make suboptimal choices based on incomplete or inaccurate information.
Financial Loss: In some cases, relying on misleading information could lead to significant financial losses.
Damaged Reputation: If individuals or organizations are associated with MHI and its “full perspective” claim, they may suffer reputational damage if it is later revealed that the information was incomplete or inaccurate.
MHProNews will continue to monitor and report as deemed warranted. A follow up that includes outreaches to Bill Boor, MHI chairman, and other MHI leaders and communications professionals is planned. Stay tuned.
Our son has grown quite a bit since this 12.2019 photo. All on Capitol Hill were welcoming and interested in our manufactured housing industry related concerns. But Congressman Al Green’s office was tremendous in their hospitality. Our son’s hand is on a package that included the Constitution of the United States, bottled water, and other goodies.
Tony earned a journalism scholarship and earned numerous awards in history and in manufactured housing.
For example, he earned the prestigious Lottinville Award in history from the University of Oklahoma, where he studied history and business management. He’s a managing member and co-founder of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com.
This article reflects the LLC’s and/or the writer’s position and may or may not reflect the views of sponsors or supporters.
