Efficient, powerful, effective, and thorough — all adjectives that describe accurately the 5th U.S. Circuit Court of Appeals’ recent evisceration of the Department of Energy’s (DOE) new policy on dishwashers and laundry machines.
Those adjectives do not describe the shoddy home appliances the agency attempted to impose on the American citizenry. Nor can they be applied to the DOE’s manifestly deficient reasoning, which, according to the appeals court, produced an “arbitrary and capricious” (and therefore legally impermissible) regulatory result.
Pursuant to President Joe Biden’s whole-of-government approach to environmentalist policy making, Washington bureaucrats have worked strenuously to heighten energy- and water-consumption requirements for many home appliances. Abundant examples include gas stoves, lightbulbs, shower heads, refrigerators, freezers, and air conditioners.
In one skirmish along this extended front — now the object of the 5th Circuit’s opprobrium — Biden’s DOE revoked Trump-era rules exempting fast-working dishwashers and laundry machines from stringent, anti-consumer requirements.
As the Competitive Enterprise Institute’s (CEI) Devin Watkins writes, “federal regulations limiting water and energy doubled the time dishwashers took to operate.” In sum, environmentally compliant appliances function worse. A dishwasher that uses less water and operates at lower temperatures needs longer to clean a dish. Quite obviously, multi-hour wash cycles greatly inconvenience consumers. In 2020, largely prompted by CEI’s advocacy, Trump’s DOE created a new sub-category of washers, one that would allow manufacturers to produce less efficient dishwashers, provided their cycles lasted less than an hour. The agency also adopted similar regulation with respect to clothes washers and dryers.
The public cried out for better home appliances, with functionality undiminished by overreaching regulation. When posted to the federal register, CEI’s petition for better dishwashers gained explosive public support. “In the comments by individuals,” Watkins writes, “16 opposed the new class of dishwashers, 41 were neutral, and 2,187 supported this new type of dishwasher.”
Somewhat counterintuitively, closer scrutiny suggests that faster and more-powerful appliances on net conserve electricity and water. A weak dishwasher, although apparently more efficient, could require users to run multiple cycles to clean some dishes fully, resulting in a cumulative waste of resources. Similarly, interminable cycle times encourage users to completely give up appliances and wash by hand. As Judge Andrew Oldham wrote for the 5th Circuit, “nothing wastes water and energy like handwashing: DOE itself estimated in 2011 that handwashing consumes 350 percent more water and 140 percent more energy than machine washing.”
The DOE has largely disregarded these benefits; it has instead chosen policies that at first glance seem environmentally friendly over those that would in practice conserve resources. Human behavior is less malleable than regulatory codes — to would-be technocrats’ chagrin.
Noting that the agency’s policies (“efficiency” mandates) likely do not promote its stated policy goal (conservationism), Oldham asked, “What did DOE say in response? Basically nothing: It acknowledged the concern and moved on. But bare acknowledgment is no substitute for reasoned consideration.” Although regulators cited contrary evidence suggesting some environmental advantages to more stringent standard, he continued, it “implicitly credited [that contrary evidence] without explaining why. That is the touchstone of arbitrary and capricious agency action.”
But the 5th Circuit went further than the “arbitrary and capricious” finding necessary to curb the DOE’s rule repeal. Oldham argued that the agency likely lacks statutory authority to regulate water efficiency standards entirely. The plain language of the relevant law (the Energy Policy and Conservation Act, as updated in 1992), seems only to delegate such authorities only with respect to showerheads, faucets, water closets, and urinals.
Oldham’s decision — forceful and scorching hot, like the water in a deregulated dishwasher — bodes ill for overzealous environmentalist bureaucrats. To achieve their desired policy ends, Biden and his subordinates too often contort statutory language. The jerry-rigged legal interpretations they concoct — while perhaps almost-colorable public-relations fodder for progressive activists and pundits — wilt under serious legal scrutiny.
America is a nation predicated on the notion that government (and government officials) may exercise only such powers as the Constitution and duly enacted law vest in them.
And although the government’s powers are no longer “few and defined” as the Constitution prescribes, and the administrative state exercises progressively greater and more-concentrated powers, court rulings such as the 5th Circuit’s go far to restore constitutional and legal order. The nation, and individual citizens, are better off for them.
David B. McGarry is a policy analyst at the Taxpayers Protection Alliance.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.