The U.S. Department of Energy is illegally limiting the water use of home appliances, and lawyers at the Competitive Enterprise Institute are filing a lawsuit to stop it.
Every day, people run dishwashers and washing machines only to discover that another washing cycle is needed because what’s inside remains dirty. The root of the problem is federal mandates that require a low level of water use per cycle. The government limits on water use also cause washing cycle duration to increase because longer cleaning time is needed to compensate for the lack of water. The result is paradoxical because the rules that are supposed to conserve water actually result in wasting it when appliance users must run multiple washing cycles to get things clean.
A bigger problem is Congress never gave the DOE authority to enact new and stricter limits on the water use of washing machines and dishwashers.
The agency claims its authority comes from the Energy Policy and Conservation Act of 1975, legislation enacted in response to the 1973 energy crisis. One of the act’s goals was to reduce electricity costs by forcing improvements to the energy efficiency of various appliances. However, the act did not authorize a limitation on water use.
In 1992, Congress amended EPCA and allowed the DOE to regulate the water use of showerheads, faucets, water closets, and urinals. Fifteen years after that, Congress set a water limit for washing machines and dishwashers, but it did not authorize the DOE to continue regulating such water use today. Federal law today expressly states that the department’s authority over water use is limited to “showerheads, faucets, water closets, and urinals.”
Indeed, earlier this year, a federal appeals court emphasized those limits. When describing the legislation, the Fifth Circuit announced in Louisiana v. U.S. Department of Energy, “No part of that text indicates Congress gave DOE power to regulate water use for energy-using appliances (like dishwashers and washing machines).”
“The plain text of the EPCA … says that DOE only has power to amend energy-use standards for dishwashers and clothes washers,” the court continued to say.
This direct statement of law by an appellate court can only be overruled by the U.S. Supreme Court, so one would think that the DOE would avoid such unlawful behavior. Alas, on Feb. 29 and April 24, Jeffrey Marootian, principal deputy assistant secretary for energy efficiency and renewable energy at the DOE, enacted stricter water limit rules for washing machines and dishwashers in direct defiance of the opinion of the Fifth Circuit.
According to Marootian, when Congress set the water limit for dishwashers in 2007, it really meant to give the DOE the authority to amend such limits, but it just forgot. Marootian claimed that the better interpretation of the statute was to ignore its explicit text that limited the department’s authority, which required him to cook up a theory of interpretation that would justify what Marootian claimed Congress meant to do but forgot.
This argument will likely lose in court. When the administration ignores what judges tell it is the law, the administration’s prospects of winning in court dwindle substantially.
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Even though the Fifth Circuit interpreted EPCA, it did not order the DOE to follow its interpretation. It just assumed that the administration would attempt to follow the law as the court had explained it. Regrettably, that assumption of good-faith legal compliance proved to be wrong. Because the Biden administration did not follow the law, our new lawsuit seeks a judicial order to repeal these new rules, return to the water limits set by Congress, and stop any such future unlawful regulation.
Apparently, the only way to get this administration to obey the law is for it to continue to face defeat in the courts. Our lawsuit is one step toward the day of broad cultural recognition that following the law Congress wrote, as explained by judges, is the better course for our government. It’s also one step toward the day that the federal government will allow businesses to make and people to buy home appliances that will do a decent job of washing and cleaning our stuff.
Devin Watkins is an attorney at the Competitive Enterprise Institute.