Energy Efficiency Rule Slowdown Expected as Trump Returns

The incoming Trump administration is expected to stagnate enforcement of energy efficiency standards and stifle the Energy Department’s authority over them in the process, according to attorneys and former department officials.

They also say the new Trump administration will likely find ways to undermine existing regulations they don’t like. That could take the form of creating new product classifications that allow for more energy consumption, delaying required updates for efficiency standards, and notifying federal courts that it no longer wishes to defend challenged regulations.

“One way for an administration to starve a piece of an agency is to not seek federal funding,” added Emily Hammond, former deputy general counsel at DOE under the Biden administration and a current law professor at George Washington University.

These tactics “whittle away regulatory programs that work toward climate change mitigation that ask of sensible restrictions on our use of fossil fuels,” said Hammond, who uses they/them pronouns.

The Energy Policy and Conservation Act gives DOE the authority to establish energy conservation standards for consumer products. Agency rules pertaining to furnaces, dishwashers, washing machines, and others have been challenged in court by environmental groups and trade associations.

The EPCA contains an anti-backsliding provision, a guardrail preventing the DOE from making the standards less stringent.

That’s why a new Trump administration is more likely to slow down the rollout of standards rather than create less restrictive ones, said Sharon Jacobs, an energy and administrative law professor at University of California Berkeley.

Slowdowns and Challenges

Strategies to slow down rulemaking were used during the first Trump administration, Jacobs said. A process rule was put in place in 2020 that changed how standards are set by making some rulemaking procedures binding. And while the agency still has to comply with the Administrative Procedure Act, more hoops can be added, according to Jacobs.

Any changes Trump’s DOE wants to the regulations would have to be made through the APA process, echoed Devin Watkins, an attorney at the Competitive Enterprise Institute. The courts could also vacate the existing regulations being challenged, but “until a final rule is issued, they would continue to be enforceable.”

The Biden administration in 2021 repealed many of the efficiency standards that were set during the first Trump administration. That action was challenged by several states in 2022, resulting in the US Court of Appeals for the Fifth Circuit finding that EPCA doesn’t give the DOE the authority to regulate water efficiency for appliances that aren’t listed in the law, such as showers and toilets—an argument CEI advanced in its litigation.

Biden’s DOE also had to finalize regulations that the first Trump administration missed statutory deadlines for. The department’s Office of Energy Efficiency and Renewable Energy is required to review appliance standards every six years, and the Trump administration left a backlog of at least two dozen unreviewed product standards. After facing legal backlash, Biden’s DOE was ordered by the Southern District of New York to finalize the remaining standards—some of which have been done, but others are still left over.

“If the rules are not finalized before the new administration takes office, then the new administration could decide not to finalize those rules,” Jacobs said.

The Biden administration can still resolve those appliance regulations since the deadline to do so is in December—before the change in power takes place, said Alexandra Klass, former deputy general counsel under Biden’s DOE and current Michigan Law School professor.

She added that the Congressional Review Act could be used to reverse or vacate efficiency rules, depending on when they are finalized.

The American Gas Association declined to comment on the efficiency standards, but it released a statement saying it looked forward to working with the next administration on “keeping energy affordable and reliable.”

Post-Chevron Impact

The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo to reverse the Chevron doctrine—under which courts would defer to reasonable agency interpretations of ambiguous statutory language—will also affect how the DOE tackles efficiency standards.

Watkins said that post-Chevron, the text of the EPCA won’t support the DOE’s ability to regulate water efficiency for dishwashers and similar appliances.

“The Department of Energy, like all agencies, is not going to have the flexibility to interpret the rules as it wishes,” he said.

Jacobs said the Trump administration is more likely going to “find itself frustrated by Loper Bright” because “agencies now are not getting deference for their interpretations, and that includes deregulatory interpretations.”

However, she said the broad language in the EPCA requiring the standards to be “technically feasible and economically justified” is the kind of language that suggests an actual delegation of responsibility to the agency by Congress.

Federal agencies have been anticipating the end of the Chevron doctrine, Hammond said, so they’ve grounded their decisions in “the best reading of the statute.”

“For the rules that are being challenged right now, the agencies have already done the very best work they can to withstand judicial review,” they said.

Srinidhi Sampath Kumar, the Sierra Club’s building electrification campaign director, said she expects more challenges to come during the new administration.

The DOE didn’t immediately respond to a request for comment.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.