Energy Efficiency Standards

A close-up image of an electricity meter.

Under the Energy Policy and Conservation Act (EPCA), the Department of Energy (DOE) is charged with developing energy efficiency standards for a wide range of consumer and commercial products. During the Trump era, DOE attempted to derail several DOE energy efficiency standards that were finalized prior to the change in administration and to make it more difficult for DOE in the future to establish energy efficiency standards for a wide range of appliances.


Product Efficiency Standards

Ceiling Fans

At the beginning of the Trump administration, DOE sought to delay the effective date of the final energy efficiency rule for ceiling fans. In March 2017, a coalition of nine attorneys general filed a petition in the Second Circuit challenging DOE's delay of the effective date of the Energy Conservation Standard for Ceiling Fans. After filing the lawsuit, DOE dropped its effort to delay the effective date of the energy efficiency standard and agreed to allow the final rule to go into effect.

Appliances and Industrial Equipment

In April 2017, 10 attorneys general delivered a 60-day notice of intent to sue DOE for its failure for over a year to publish final energy efficiency standards for five additional products: air compressors, commercial packaged boilers, portable air conditioners, walk-in coolers and freezers, and uninterruptible power supplies. In June 2017, when DOE still had not published final energy efficiency standards in the Federal Register, the coalition of attorneys general filed a lawsuit against DOE for violating the Energy Policy and Conservation Act by not publishing the standards. The lawsuit seeks to require DOE to immediately publish the standards as final rules.

In February 2018, a federal district court sided in favor of the attorneys general in ruling that DOE had violated its duties under EPCA and ordered DOE to publish four standards as final rules within 28 days. In March 2018, DOE notified the district court it had appealed the order to the Ninth Circuit Court of Appeals and sought to stay the order to publish the standards. In April 2018, the Ninth Circuit stayed the district court’s order to publish the standards.

In October 2019, the Ninth Circuit sided with the attorneys general in upholding the federal district court’s decision. The court ruled that DOE had a non-discretionary duty to publish the four energy efficiency standards under EPCA and lifted its April 2018 stay of the district court’s order for DOE to publish the standards. In January 2020, DOE acknowledged defeat and published the final energy efficiency standards for four of the products.

In March 2020, three industry groups filed a lawsuit seeking to overturn the energy efficiency standards for commercial packaged boilers, claiming that the rule does not save a significant amount of energy and is not cost-effective. In April 2020, California Attorney General Xavier Becerra led a coalition of 12 attorneys general and the City of New York in filing a motion to intervene in the lawsuit to defend the standard against the challenge in the D.C. Circuit. Given DOE’s previous failure to publish the standards, the coalition sought to intervene to ensure that the standards are faithfully defended. 

Dishwashers

In July 2019, DOE proposed the creation of a new residential dishwasher product class with a “normal cycle” time of less than one hour. DOE stated that under EPCA dishwashers with a normal cycle time of less than one hour have a performance-related feature that other dishwashers do not have, justifying the creation of a separate product class. The proposal would exclude this new product class from the requirements of any energy efficiency standards and that any new standard for this new product class would not be subject to EPCA’s anti-backsliding provision. 

In October 2019, California Attorney General Becerra led a coalition of 13 attorneys general in filing comments in opposition to the proposed new product class for residential dishwashers. The comments noted that the proposal violates EPCA’s anti-backsliding provision by creating a new product class for dishwashers that would not be subject to limits on allowable energy use. Further, the attorneys general pointed out that the proposal is not supported by the administrative record and thus is arbitrary and capricious in violation of the APA. Lastly, DOE improperly asserted a categorical exclusion for the proposal so as to avoid conducting an environmental review of the proposal under the National Environmental Policy Act (NEPA); therefore failing to comply with NEPA.  

In October 2020, DOE issued a final version of the rule that ignored the concerns of the coalition of attorneys general. The final rule creates a new product class of dishwashers that are exempt from energy efficiency standards. Following the release of the final rule, California Attorney General Becerra released a statement in opposition to the rule as it will cost consumers money and pollute the environment. 

In December 2020, California Attorney General Xavier Becerra led a coalition of 15 attorneys general in filing a petition for review challenging the October 2020 rule. As of June 2021 the litigation was held in abeyance. 

Furnaces and Water Heaters

In 2015, DOE proposed standards to improve the energy efficiency performance of residential gas furnaces and, the following year, the Department proposed standards to improve the performance of commercial hot water heaters. These proposals have not been finalized.

In October 2018, members of the gas industry filed a petition for rulemaking with DOE requesting the issuance of interpretive rule that would state that DOE’s 2015 and 2016 proposals for residential gas furnaces and commercial hot water heaters would result in the unavailability of “performance characteristics” within the meaning of EPCA. Specifically, the gas industry claimed that the proposals would have established standards that could only be met by condensing combustion technology products/equipment, thereby precluding the commercial sale of non-condensing combustion technology products/equipment. The petition asked that DOE withdraw the proposed standards.  

In March 2019, New York Attorney General Letitia James led a coalition of ten attorneys generals in filing comments in response to the October 2018 petition for rulemaking. The comments opposed the requests in the petition as contrary to DOE’s efficiency standards that have reduced consumer and industrial energy consumption and costs and that non-condensing combustion technology products/equipment are not “performance characteristics” within the meaning of EPCA.

Ignoring the comments of the attorneys general, DOE, in July 2019, issued a proposed rule for energy efficiency standards for residential gas furnaces and commercial hot water heaters. The proposal granted the gas industry’s request for an interpretative rule, but declined to withdraw the 2015 and 2016 proposed rules for residential gas furnaces and commercial hot water heaters. Still, the interpretative rule determined that non-condensing combustion technology products/equipment are “performance characteristics” under EPCA, which would prohibit DOE from adopting an energy efficiency standard that would result in the commercial unavailability of non-condensing combustion technology products/equipment in furnaces and hot water heaters. 

New York Attorney General James led a coalition of 13 attorneys general in September 2019, in filing comments in opposition to the July 2019 proposed interpretative rule. Again, the comments emphasized that non-condensing combustion technology products/equipment are not “performance characteristics” under EPCA and are contrary to DOE’s conclusions in prior rulemakings. The attorneys general also pointed out that the proposed interpretative rule’s effective grandfathering of inefficient product designs for residential gas furnaces and commercial hot water heaters would cost consumers billions of dollars in lost energy savings and increase carbon emissions by millions of metric tons.

In January 2021, DOE finalized its interpretative rule determining that non-condensing combustion technology products/equipment are "performative characteristics" under EPCA. 

Consumer, Commercial and Industrial Products

In August 2020, New York Attorney General James led a coalition of 16 attorneys general in filing a 60-day notice of intent to sue DOE for failing to meet its obligation under EPCA to amend and review energy efficiency standards for 25 categories of consumer, commercial and industrial products. The covered products include dishwashers, refrigerators and water heaters and the missed deadlines for reviewing and amending the efficiency standards date back to 2016. The notice pointed out that updated standards for just four of the appliances could save consumers over $7.5 billion in avoided consumer utility costs and reduce carbon dioxide emissions by 22 million metric tons by 2035. The attorneys general warned that they would sue to compel DOE to fulfill its statutory obligations, if it does not act to update the standards within 60 days.

In November 2020, New York Attorney General James led a coalition of 15 attorneys general in following through on the 60-day notice of intent to sue DOE. The attorneys general filed a lawsuit in a New York federal district court against DOE for its failure to amend and review energy efficiency standards for the 25 categories of consumer, commercial and industrial products. The lawsuit noted that DOE’s failure to meet the statutory deadline deprives the states and their residents the benefits of strengthened energy efficiency standards, including billions in lower energy costs for consumers and billions of metric tons of avoided carbon dioxide emissions. The attorneys general requested that the court issue a permanent injunction requiring DOE to review and amend the energy efficiency standards for the 25 categories of products pursuant to EPCA. 

Clothes Washers and Dryers

In August 2020, DOE released a proposal to exempt fast-cycle clothes washers and dryers from any energy efficiency standards. Fast-cycle products include top-loading washers with a wash cycle of less than 30 minutes, front-loading washers of less than 45 minutes, and dryers of less than 30 minutes.

In October 2020, Oregon Attorney General Ellen Rosenblum led a coalition of 15 state attorneys general in submitting comments objecting to the proposal and urging DOE to withdraw it. In their comments, the attorneys general emphasized that the proposal violates EPCA and that DOE does not have the authority to exempt certain washers from minimum standards set by Congress itself. The coalition also noted that the proposal violates NEPA by mistakenly asserting that it would not result in any environmental impacts. The attorneys general noted that exempting washers and dryers from energy efficiency standards would result in negative environmental impacts from increased greenhouse gas emissions.

In December 2020, DOE published the final version of the efficiency standards for fast-cycle clothes washers and dryers. Ignoring the concerns raised by the attorneys general, the final rule exempts certain washers from minimum energy efficiency standards. The following month, before the end of the Trump administration, California Attorney General Becerra led a coalition of 15 attorneys general in filing a petition for review in the Second Circuit challenging the December 2020 rule. As of June 2021, the litigation was stayed. 


Procedural Rules 

Process Rule

EPCA requires DOE to amend its energy efficiency standards for appliances and equipment that are used in residential, commercial and industrial buildings every six years unless doing so would fail to result in significant energy savings or other conditions are met. In 1996, DOE developed the Process Rule, which governs the process by which the department amends energy efficiency standards for covered appliances and equipment under EPCA.

In February 2019, DOE issued a notice of proposed rulemaking to revise the 1996 Process Rule. The proposal would define significant energy savings as those that achieve a ten percent increase in energy savings. DOE then could not adopt new energy efficiency standards for products unless the department believes that the new standard for the product will use energy ten percent more efficiently than appliances and equipment currently in use. The proposal would also make the Process Rule binding, providing appliance and equipment manufacturers the opportunity to sue the department if industry believes the standards are too stringent. Manufacturers could even pursue a lawsuit if the department deviates from the Process Rule.

California Attorney General Becerra led a coalition of fifteen attorneys general in filing comments in opposition to revising the Process Rule. The May 2019 comments pointed out that DOE has used the Process Rule to adopt many of the efficiency standards in the department’s energy efficiency program that has delivered $2 trillion dollars in consumer savings and avoided 2.6 billion tons of carbon emissions. The attorneys general criticized the proposed ten percent threshold requirement to qualify as a significant energy savings as being untethered to Congress’ intent in passing EPCA. Additionally, making the Process Rule mandatory would mean that DOE would lose its discretion to deviate from the Process Rule when appropriate to fulfill its statutory obligations under EPCA.

In January 2020, DOE released its final rule revising the 1996 Process Rule. The final rule largely ignored the concerns the attorneys general expressed about the proposed rule in setting the threshold for significant energy savings at ten percent more efficient than current standards or saving 0.3 quadrillion British thermal unit of energy over three decades. Additionally, the final rule also makes the Process Rule binding on DOE. 

In April 2020, California Attorney General Becerra led a coalition of fourteen attorneys general in filing a petition for review challenging DOE’s final rule. In the lawsuit, the coalition will argue that the threshold for significant energy savings is impermissibly high and would result in the unnecessary loss of significant energy savings.

Waiver Process

One of the pillars of EPCA’s energy efficiency requirements is compliance testing, which DOE facilitates by establishing test procedures so that manufacturers can test and certify that their products comply with applicable standards. Manufacturers may request a waiver from applicable test procedure requirements if the design prevents a product from being tested or if the test would result in inaccurate energy use data. While that waiver petition is pending, the manufacturer may also apply for an interim waiver, which allows DOE 30 days to publish its decision, if administratively feasible, and gives DOE an opportunity to specify an alternative test procedure as part of its interim decision. 

In May 2019, DOE issued a notice of proposed rulemaking regarding changes to DOE’s test procedure waiver process, which would grant interim waivers by default without review. Companies could simply inform DOE that they do not intend to follow the required testing procedures, and if DOE does not object within 30 days, these interim waiver requests would be “deemed granted.” If DOE ultimately denies the waiver request or assigns an alternate test procedure, the manufacturer could then avoid compliance testing for an additional 180-day grace period. 

In August 2019, 16 attorneys general filed comments in opposition to DOE’s proposal. The comments noted that the proposed rule would effectively allow any company to manufacture and sell non-compliant products for at least half a year. The attorneys general also criticized the proposal for burdening consumers and businesses with the costly long-lasting products that do not meet DOE’s energy efficiency standards.

In December 2020, DOE released the final version of the test procedure waiver process rule. In a change from the proposed rule, an interim waiver request will be “deemed granted,” if DOE does not object within 45 days—instead of 30 days as in the proposal. However, the final rule maintains the 180-day grace period for compliance testing if DOE denies the waiver request, thereby allowing any company to manufacture and sell non-compliant products for at least half a year. The attorneys general opposed this provision in their August 2019 comments. 

In January 2021, New York Attorney General James led a coalition of 15 attorneys general in filing a petition for review in the Second Circuit challenging the legality of the December 2020 rule. As of June 2021, the case was in abeyance. 

Prioritization of Energy Conservation Standards

In April 2020, DOE issued a rulemaking notice requesting comments on which energy efficiency rulemakings DOE should prioritize or deemphasize in its docket. The notice asked commenters to address which rulemakings should be placed in active or long-term action categories and to suggest how quickly rulemakings should be completed or how certain rulemakings should be prioritized.

In May 2020, a coalition of 14 attorneys general led by California Attorney General Becerra filed comments urging DOE not to waste resources on an unnecessary prioritization process, and instead proceed with the numerous overdue rulemakings for energy efficiency regulations that it is required by law to complete. In its comments, the coalition highlighted that DOE cannot legally delay or deemphasize its compliance obligations with the mandatory statutory deadlines imposed by EPCA. The attorneys general recommended that DOE put an end to its discretionary rulemaking activities (see above) that undermine the energy efficiency program, and instead commit to complying with its statutory duties and focus all of its energy efficiency resources on those duties.