by Mark Krebs at wattsupwiththat.com
“All three Notice of Proposed Rulemakings demonstrate the same anti-consumer biases of the Executive Branch’s Department of Energy: to ban non-condensing appliance products. Each suffers the same analytic and procedural defects that caused the Circuit Court to vacate DOE’s Final Rule for commercial boilers. DOE’s continued flaunting of its authority, despite the Court’s action inspired my post title (above).”
On July 10, 2023, MasterResource published Energy Appliance Victory! (DC Circuit vs. DOE). The “victory” was overturning a DOE Final Rule that would have banned non-condensing commercial boilers. In so doing, it also rejected the long-standing assumptions with the administrative state’s super weapon; its cherished “Chevron Deference.”[1]
The opening paragraph of my July 10th article read:
“The ‘wheels of justice turn slowly,’ but they indeed turned, even within the District of Columbia’s ‘uni-party.’ As for holding on to this victory, it is far from a slam-dunk for preserving consumer choice and free markets. I expect the struggle to escalate in Biden’s all-of-government war against natural gas and other fossil fuels.”
I had a gut feeling DOE would do something reactionary, and it didn’t take long. The DC Court vacated DOE’s commercial boiler efficiency rule on July 7. On July 28, DOE issued three notices for more stringent appliance efficiency mandates. One of these has been published in the Federal Register as a Docket EERE-2017-BT-STD-0019: Energy Conservation Standards for Consumer Water Heaters; Notice of Proposed Rulemaking (NOPR), thus starting a comment period (closing August 28, 2023). The other two are pre-publication versions yet to be published in the Federal Register. Once final versions of these are published in the Federal Register, they become official and posted to regulations.gov under their corresponding Docket ID. Then, the comment period starts.
All three of these notices demonstrate the same anti-consumer biases of the Executive Branch’s Department of Energy: to ban non-condensing appliance products. Each suffers the same analytic and procedural defects that caused the Circuit Court to vacate DOE’s Final Rule for commercial boilers. DOE’s continued flaunting of its authority, despite the Court’s action begs the question of this article’s title.
This is a big deal. It speaks to the separation of powers between two ostensibly co-equal branches of government: the Executive and the Judicial. The third branch, Legislative, has a significant role to play here. The Energy Policy Conservation Act (EPCA) should be modified to effectively mitigate the chronic regulatory failures and self-serving nanny state behaviors that are chronic within DOE’s administration of EPCA.
Three Rulemakings
The escalation didn’t take long. On July 28, 2023, DOE issued three new notices for more stringent appliance efficiency mandates. One of these has been published in the Federal Register as a Docket EERE-2017-BT-STD-0019: Energy Conservation Standards for Consumer Water Heaters; Notice of Proposed Rulemaking (NOPR), thus starting a comment period (closing August 28, 2023). The other two are pre-publication versions yet to be published in the Federal Register. (Once Federal Register versions are published, they’ll be posted to regulations.gov under their corresponding Docket ID and the comment period started.)
All three of these notices demonstrate the same sort of anti-consumer biases of the Executive Branch’s U.S. Department of Energy: to ban non-condensing appliance products. Each also suffers the same defects that caused the Circuit Court to rule against DOE in the commercial boilers case. Behavior driven by that bias that led to the DC Circuit vacating a Final Rule. DOE’s apparent disregard of the Court’s action begs the question of this article’s title.
Going forward, the third branch, legislative, also has a significant role to play here. Specifically, it is to exercise control and restraint of the Energy Policy and Conservation Act (EPCA). Enacted in 1975 as a reaction to oil embargoes, EPCA has been subject to constant “mission creep” ever since. EPCA should at least be modified by the legislative branch to correct DOE’s regulatory failures and self-serving gaming of its analytical processes that are endemic within its administration of appliance efficiency standards. Alternatively, Congress should “reimagine” EPCA. Perhaps EPCA should be scrapped given how it has been hijacked by scores of renewable energy eco-warriors and electrotechnology zealots.
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