Last week the U.S. Court of Appeals for the Fifth Circuit struck down the Department of Energy’s dishwasher and washing machine rules saying they did not hold water.

For the second time in as many weeks, we are writing about a court ruling new standards violate the Energy Policy and Conservation Act, an incredibly important federal statute enacted by Congress in response to the 1973 Arab oil embargo that created a comprehensive approach to national energy policy (.. for example, this is the federal act that created the Strategic Petroleum Reserve) and keeping bad actors from imposing the environmental fleeting notion of the day on the nation.

Substantively, the court ruled, “No part of that text indicates Congress gave DOE power to regulate water use for energy-using appliances (like dishwashers and washing machines).”

Procedurally, the court found the “Department’s actions were arbitrary and capricious.”

The backstory is that in response to a ‘petition for rulemaking’ claiming “the Department’s burdensome energy regulations made dishwashers incapable of, well, washing dishes ..” in October 2020, the DOE adopted a final rule defining a class of “standard residential dishwashers with a cycle time for the normal cycle of one hour or less from washing through drying.” The Department then decided to take analogous action on laundry machines when in December 2020 it released a final rule creating new classes of “top-loading consumer [i.e., residential] clothes washers and consumer clothes dryers” with a “normal cycle time of less than 30 minutes.” DOE also created a class of “front-loading” residential washers with a normal cycle under 45 minutes.

On the day of his inauguration, President Biden issued an Executive Order directing DOE and other agencies to repeal certain rules adopted during the prior four years, including the Trump Administration 2020 dishwasher rule and the 2020 laundry rule. A new final rule, which the court termed “the Repeal Rule,” was issued in January 2022. It revoked both the 2020 dishwasher and the 2020 laundry rules.

A group of States, led by Louisiana, petitioned the court for review of the Repeal Rule.

The federal appeals court reasoned, “in sum, it is unclear that DOE has any statutory authority to regulate water use in dishwashers and clothes washers. But even assuming the Department has that authority, the Repeal Rule is arbitrary and capricious for two principal reasons. (1) It failed to adequately consider appliance performance, substitution effects, and the ample record evidence that DOE’s conservation standards are causing Americans to use more energy and water rather than less. (2) It rested instead on DOE’s view that the 2020 Rules were legally “invalid” – but even if true, that does not excuse DOE from considering other remedies short of repealing the 2020 Rules in toto.”

“Instead, the Department amplified its capriciousness by throwing the baby out with the bath water.”

To be clear, we believe strongly in repairing the world (.. we are not sure 3.2 gallons per cycle versus 5 gallons is going to do that; maybe it will), but this is not how to adopt environmental public policy. Instead of more bad laws that gin up apocalyptic environmentalism (.. including illegal attempts to ban natural gas use from Berkeley [that we blogged about last week] to Maryland [that we blogged about in 2022]), we need properly enacted techno optimism rooted solutions advancing prosperity.

And just as we ended our blog post last week, .. read the decision and participate in this discussion about how to repair the world (.. without violating the U.S. Constitution).

A live webinar “Ask Me Anything” 30 questions in 30 minutes, Tuesday, January 23 at 9 am EST presented by Stuart Kaplow on behalf of ESG Legal Solutions, LLC. The webinar is complimentary, but you must register here.