{"id":272396,"date":"2023-08-09T16:04:45","date_gmt":"2023-08-09T14:04:45","guid":{"rendered":"https:\/\/climatescience.press\/?p=272396"},"modified":"2023-08-09T16:04:48","modified_gmt":"2023-08-09T14:04:48","slug":"did-doe-flip-the-bird-to-the-dc-circuit","status":"publish","type":"post","link":"https:\/\/climatescience.press\/?p=272396","title":{"rendered":"Did DOE \u201cflip the bird\u201d to the DC Circuit?"},"content":{"rendered":"\n
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From Master<\/strong>Resource<\/a><\/p>\n\n\n\n

\u00a0By Mark Krebs<\/a><\/p>\n\n\n\n

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\u201cAll three Notice of Proposed Rulemakings demonstrate the same anti-consumer biases of the Executive Branch\u2019s Department of Energy: to ban non-condensing appliance products. Each suffers the same analytic and procedural defects that caused the Circuit Court to vacate DOE\u2019s Final Rule for commercial boilers. \u00a0DOE\u2019s continued flaunting of its authority, despite the Court\u2019s action inspired my post title (above).\u201d<\/em><\/p>\n<\/blockquote>\n\n\n\n

On July 10, 2023, MasterResource published\u00a0Energy Appliance Victory! (DC Circuit vs. DOE)<\/a>.\u00a0The \u201cvictory\u201d was overturning a DOE Final Rule that would have banned non-condensing commercial boilers.\u00a0 In so doing, it also rejected the long-standing assumptions with the administrative state\u2019s super weapon; its cherished \u201cChevron Deference.\u201d[1]<\/strong><\/p>\n\n\n\n

The opening paragraph of my July 10th article read:<\/p>\n\n\n\n

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\u201cThe \u2018wheels of justice turn slowly,\u2019 but they indeed turned, even within the District of Columbia\u2019s \u2018uni-party.\u2019\u00a0As for holding on to this victory, it is far from a slam-dunk for preserving consumer choice and free markets. I expect the struggle to escalate in Biden\u2019s all-of-government war against natural gas and other fossil fuels.\u201d<\/em><\/p>\n<\/blockquote>\n\n\n\n

I had a gut feeling DOE would do something reactionary, and it didn\u2019t take long.\u00a0The DC Court vacated DOE\u2019s commercial boiler efficiency rule on\u00a0July 7<\/a>. On July 28,\u00a0DOE issued three notices for more stringent appliance efficiency mandates<\/em>. One of these has been published in the Federal Register as a\u00a0Docket EERE-2017-BT-STD-0019: Energy Conservation Standards for Consumer Water Heaters; Notice of Proposed Rulemaking<\/a>\u00a0(NOPR), thus starting a comment period (closing August 28, 2023). The other two are pre-publication versions yet to be published in the Federal Register. Once final versions of these are published in the Federal Register, they become official and posted to regulations.gov under their corresponding Docket ID. Then, the comment period starts.<\/p>\n\n\n\n

All three of these notices demonstrate the same anti-consumer biases of the Executive Branch\u2019s Department of Energy: to ban non-condensing appliance products. Each suffers the same analytic and procedural defects that caused the Circuit Court to vacate DOE\u2019s Final Rule for commercial boilers. \u00a0DOE\u2019s continued flaunting of its authority, despite the Court\u2019s action begs the question of this article\u2019s title.<\/p>\n\n\n\n

This is a big deal. It speaks to the separation of powers between two ostensibly co-equal branches of government: the Executive and the Judicial. The third branch, Legislative, has a significant role to play here. The Energy Policy Conservation Act (EPCA) should be modified to effectively mitigate the chronic regulatory failures and self-serving nanny state behaviors that are chronic within DOE\u2019s\u00a0 administration of EPCA<\/em>.<\/p>\n\n\n\n

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Three Rulemakings<\/strong><\/p>\n\n\n\n

The escalation didn\u2019t take long.\u00a0On July 28, 2023, DOE issued three new notices for more stringent appliance efficiency mandates. One of these has been published in the Federal Register as a Docket EERE-2017-BT-STD-0019: Energy Conservation Standards for Consumer Water Heaters; Notice of Proposed Rulemaking (NOPR), thus starting a comment period (closing August 28, 2023). The other two are pre-publication versions yet to be published in the Federal Register. (Once Federal Register versions are published, they\u2019ll be posted to regulations.gov under their corresponding Docket ID and the comment period started.)<\/p>\n\n\n\n

All three of these notices demonstrate the same sort of anti-consumer biases of the Executive Branch\u2019s U.S. Department of Energy: to ban non-condensing appliance products. Each also suffers the same defects that caused the Circuit Court to rule against DOE in the commercial boilers case. Behavior driven by that bias that led to the DC Circuit vacating a Final Rule.\u00a0 DOE\u2019s apparent disregard of the Court\u2019s action begs the question of this article\u2019s title.<\/p>\n\n\n\n

Going forward, the third branch, legislative, also has a significant role to play here. Specifically, it is to exercise control and restraint of the Energy Policy and Conservation Act (EPCA).\u00a0 Enacted in 1975 as a reaction to oil embargoes, EPCA has been subject to constant \u201cmission creep\u201d ever since.\u00a0 EPCA should at least be modified by the legislative branch to correct DOE\u2019s regulatory failures and self-serving gaming of its analytical processes that are endemic within its administration of appliance efficiency standards.\u00a0 Alternatively, Congress should \u201creimagine\u201d EPCA.\u00a0Perhaps EPCA should be scrapped given how it has been hijacked by scores of renewable energy eco-warriors and electrotechnology zealots<\/em>.<\/p>\n\n\n\n

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Overview of DOE\u2019s Three July 28th Appliance Efficiency Standards<\/strong><\/p>\n\n\n\n

The following discussion provides a rudimentary summary of these three notices:<\/p>\n\n\n\n

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  1. Docket EERE-2017-BT-STD-0019: Energy Conservation Standards for Consumer Water Heaters; Notice of proposed rulemaking and announcement of public meeting<\/a><\/li>\n<\/ol>\n\n\n\n

    While residential gas storage heaters for the most popular sizes (20 to 55 gallons) would not require condensing technology, minimum efficiency levels being proposed could adversely affect consumer safety due to increased condensation within conventional exhaust systems.<\/p>\n\n\n\n

    Specifically, reduced temperatures of exhaust gases can, over time, result in excessive condensation within venting systems that could eventually lead to corrosion and leakage of combustion products (including carbon monoxide) into homes. \u00a0Additionally, new mandates being proposed call for an additional inch of insulation on the sides, top and bottom of storage tanks.<\/p>\n\n\n\n

    Accommodating larger tanks (due to additional insulation) can and will significantly increase replacement costs and, at least in typical \u201ctight-fit\u201d situations, prevent replacements with like-sized water heaters.\u00a0 Additional hassle factors being proposed include the addition of flue dampers and electronic ignition (eliminating continuous pilot light) thus requiring gas water heaters to have electric connections.<\/p>\n\n\n\n

    These increased cost issues are especially important for low-income consumers, and comments are already being filed that express such concerns (20230724_Kramer Subject_Proposed water heater rules<\/a>). The following is an excerpt:<\/p>\n\n\n\n

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    I believe these new standards will HARM a very high percentage of the poor population in our nation. The long term cost will certainly be lower, that\u2019s why we install them in weatherization, however the upfront cost will be so significantly higher that a great deal of the poor population will go without hot water simply because they cannot afford the additional cost of the unit and the increased cost of the installation.<\/em><\/p>\n<\/blockquote>\n\n\n\n

    DOE is also proposing to ban non-condensing instantaneous (a.k.a., wall mounted, tankless) gas fueled water heaters; specifically, those that share conventional venting systems with non-condensing gas furnaces as well as non-condensing power vented instantaneous water heaters.<\/p>\n\n\n\n

    On the electric side, the most popular electric storage water heaters (from 20 to 120 gallons) will replace electric resistance heating and force the use of immensely more expensive heat pump technologies.<\/p>\n\n\n\n