The Energy Department’s busy beavers, with their unsleeping search for reasons to boss us around for our own good, decided that dishwashers use too much water and energy, there presumably being a shortage of the former and a stigma attached to using the latter. So, in 2012 the department issued regulations so annoying to consumers, the Trump administration relaxed them. That was sufficient reason for the Biden administration, on its first day, to order a reversal of the reversal.
This issue was catnip for the admirable Competitive Enterprise Institute, which was founded 40 years ago to be a nuisance to government that makes a nuisance of itself. CEI’s prodding in 2018 produced the Energy Department’s 2020 ruling permitting dishwashers that were better (for the reasons, read on) at washing dishes than were machines that complied with the 2012 regulations.
Responding to the Biden administration’s reinstatement of those regulations, a slew of states sued the Energy Department, asserting standing to sue because they buy dishwashers and are injured by being prevented from buying a product precluded by a regulation. This dispute reached the U.S. Court of Appeals for the 5th Circuit, which, in its Jan. 8 ruling, swatted away what it tartly called the department’s “government-always-wins” argument for denying the states’ standing: Because the Energy Department’s regulations prevented manufacturers from producing never-made machines, the states cannot prove that anyone would actually have purchased them.
Then the court termed the rule repealing the 2020 rule “arbitrary and capricious.” It noted:
“DOE stated that its energy conservation program must promote ‘water conservation’ and regulate ‘water use.’ But it is unclear how or why DOE thinks it has any statutory authority to regulate ‘water use’ in dishwashers and washing machines.” The pertinent statute authorizes regulating energy use “or” water use. “So it seems obvious that the statute gave DOE power to regulate energy use for energy-using appliances” such as dishwashers, or “water use for non-energy-using appliances,” such as shower heads.
So, the court said, not only has the Energy Department acted in excess of statutory authority, the record contains “ample evidence” that the department’s new rules reduced efficiency in both energy and water use because “purportedly ‘energy efficient’ appliances do not work.” People “may use more energy and more water to preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances.”
Says who? Says the Energy Department, citing commentators reporting that “many consumers end up running their dishwasher multiple times to get dishes clean.” The court said the department “appeared to agree that the frustratingly slow pace of modern dishwashers caused consumer substitution away from dishwashers and toward handwashing.” And: “DOE itself estimated in 2011 that handwashing consumes 350% more water and 140% more energy than machine washing.”
The court: “What did DOE say in response? Basically nothing: It acknowledged the concern and moved on.” But: “It’s a well-worn principle of arbitrary-and-capricious review that an administrative agency ‘must examine the relevant…
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