HWG LLP Energy Advisory

By: Sean A. Lev, John A. Hodges, and Jason E. Neal

The Department of Energy (DOE) for decades has adopted and enforced energy efficiency standards pursuant to the Energy Policy and Conservation Act (EPCA).1 (The program is discussed in our prior advisories.)2 A bill passed by the House of Representatives on May 7 would—if enacted into law—significantly curb DOE’s authority to issue those standards. The bill, H.R. 6192, entitled the “Hands Off Our Home Appliances Act,”3 passed 212-195; no Republicans voted against it, and seven Democrats voted in favor. The bill includes the following key features:

Removal of six-year rulemaking deadline. Under current EPCA, not later than six years after issuance of any final rule establishing or amending a standard, DOE must publish (i) a notice of the determination of DOE that the standard does not need to be amended; or (ii) a notice of proposed rulemaking including new proposed standards.4 H.R. 6192 removes the six-year deadline.5

Petitions to revoke standards. Under current EPCA, any person may petition DOE to amend a standard.6 H.R. 6192 would also allow for petitions to revoke a standard.7

Prescription of test procedure. H.R. 6192 would prohibit DOE from prescribing standards for a covered product (“product”) if a test procedure has not been prescribed for the product.8 EPCA currently has a similar prohibition that applies to a more limited number of products.9

Requirement for economic impact analysis. Under H.R. 6192, prior to prescribing any new or amended standard, DOE would be required to conduct a quantitative economic impact analysis of imposing the standard. The study must determine the predicted (i) effects on costs and monetary benefits to consumers of the products subject to the standard, including costs to low-income households, and variations in costs to consumers based on differences in regions, including rural populations, cost-of-living comparisons,10 and climatic differences; (ii) effects on employment; and (iii) lifecycle costs for the product, including costs associated with the purchase, installation, maintenance, disposal, and replacement of the product.11

Requirements for economic justification. H.R. 6192 would establish several new factors that DOE must take into account in determining whether to issue a standard:

  • DOE would be prohibited from determining that imposing a standard is economically justified unless DOE determines that (i) the standard is not likely to result in additional net costs to the consumer, including any increase in net costs associated with the purchase, installation, maintenance, disposal, and replacement of the product and (ii) the monetary value of the energy savings and, as applicable, water savings, that the consumer will receive as a result of the standard during the first three years after purchasing and installing a product complying with the standard, as calculated under the applicable test procedure, will be greater than any increased costs to the consumer of the product due to imposition of such standard, including increased costs associated with the purchase, installation, maintenance, disposal, and replacement of the product.12
  • DOE would be prohibited from determining that imposing a standard is economically justified unless DOE determines that compliance with the standard will result in (i) a reduction of at least 0.3 quads of site energy13 over thirty years or (ii) a reduction of at least ten percent in energy or water use of the product.14
  • DOE would be prohibited from determining that imposing a standard is economically justified unless DOE determines that the standard will not result in any lessening of the utility or the performance of the product, taking into consideration (i) the compatibility of the product with existing systems; (ii) the life span of the product; (iii) the operating conditions of the product; (iv) the duty cycle, charging time, and run time of the product, as applicable; (v) the maintenance requirements of the product; and (vi) the replacement and disposal requirements for the product.15
  • DOE would be prohibited from determining that imposing a standard is economically justified unless DOE determines that it is not likely to result in (i) any lessening of market competition or (ii) price discrimination,16 and that the standard is not likely to result in the unavailability in the United States of a type (or class) of products based on what type of fuel the product consumes.17
  • In determining whether a standard is economically justified, DOE would be required to (i) prioritize the interests of consumers; (ii) not consider estimates of the social costs or social benefits associated with incremental greenhouse gas emissions; and (iii) consider (I) the economic impact of the standard on the manufacturers and on the consumers of the products subject to the standard; (II) the savings in operating costs throughout the estimated average life of the product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the products which are likely to result from the imposition of the standard; and (III) the total projected amount of energy, or as applicable, water, savings likely to result directly from the imposition of the standard; (iv) the need for national energy and water conservation; and (v) other factors DOE considers relevant.18

Requirement for reevaluation of standards. H.R. 6192 would require that, not later than two years after the issuance of any final rule prescribing a new or amended standard, DOE must evaluate the rule to determine whether the standard is technologically feasible and economically justified and whether the regulatory impact analysis for such rule remains accurate. If DOE determines, based on that evaluation, that a standard is not technologically feasible or economically justified (i) DOE would be required to publish that determination and that standard will have no force or effect (except that the standard shall be considered to be in effect for purposes of EPCA’s preemption provision);19 and (ii) DOE may publish a final rule amending the standard for the type (or class) of product to be technologically feasible and economically justified, and that amendment will apply to products that are manufactured after the date that is two years after publication of such final rule.20

Disclosure of meetings. H.R. 6192 would prohibit DOE from prescribing a new or amended standard unless it, not later than the date on which the standard is prescribed, publicly discloses each meeting held by DOE, during the five-year period preceding such date, with any entity that (i) has ties to the People’s Republic of China or the Chinese Communist Party; (ii) has produced studies regarding, or advocated for, regulations or policy to limit, restrict, or ban the use of any type of energy; and (iii) has applied for or received Federal funds.21

Prevention of distribution transformer final rule. H.R. 6192 would prevent the DOE final rule titled “Energy Conservation Program: Energy Conservation Standards for Distribution Transformers” (signed on April 3, 2024; Docket No. EERE-2019-BT-STD-0018) from taking effect.22

Conclusion. EPCA’s energy efficiency provisions have been amended several times since EPCA was enacted in 1975. Stakeholders should be alert to legislative, as well as administrative, activity that could affect them. Even if this bill does not become law in this Congress, it may be the basis for future legislative and regulatory efforts.

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For more information on HWG LLP’s energy practice, please contact Sean A. Lev, John A. Hodges, or Jason E. Neal. Sean Lev has served as Acting General Counsel and Deputy General Counsel for Environment and Nuclear Programs at DOE.

Abigail T. Phillips, a Legal Analyst at HWG LLP, contributed to the preparation of this advisory under the supervision of John Hodges.

This advisory is not intended to convey legal advice. It is circulated publicly as a convenience and does not reflect or create an attorney-client relationship.

1       42 U.S.C. § 6291 et seq.

2      HWG LLP, News & Insights: Energy Efficiency, HWG Law, https://hwglaw.com/news-and-insights/?_sfm_related- practice=7803.

3      Hands Off Our Home Appliances Act, H.R. 6192, 118th Cong. (as engrossed in House, May 7, 2024).

4       42 U.S.C. § 6295(m)(1).

5       H.R. 6192 § 2(a)(1).

6       42 U.S.C. § 6295(n).

7       H.R. 6192 § 2(b).

8       Id. § 2(c), at 5.

9       42 U.S.C. § 6295(o)(3).

10     The references to rural populations cost-of-living comparisons were added in an amendment adopted on the floor of the House. H.Amdt. 902 to H.R. 6192, 118th Cong. (2024).

11      H.R. 6192 § 2(c), at 7–8.

12     H.R. 6192 § 2(c), at 8–9.

13     H.R. 6192 does not define “site energy.” DOE says that “site energy” is another term for “”delivered energy.” “Delivered energy is the amount of energy consumed at the point of sale (e.g., that enters the home, building, or establishment), without adjustment for energy loss in the generation, transmission, and distribution of energy. This is primary energy for the four end-use sectors plus electricity sales. Delivered energy is sometimes referred to as ’site’ energy.” DOE, Overview of Energy Intensity Indicators, Office of Energy Efficiency and Renewable Energy, https://www.energy.gov/eere/analysis/overview-energy-intensity-indicators.

14     H.R. 6192 § 2(c), at 9.

15     Id. § 2(c), at 10.

16     Id. § 2(c), at 10–11.

17     Id. § 2(c), at 11.

18     Id. § 2(c), at 11–12.

19     42 U.S.C. § 6297.

20     H.R. 6192 § 2(c), at 13–14.

21     H.R. 6192 § 2(c), at 6–7. This provision was added in an amendment adopted on the floor of the House. H.Amdt. 903 to H.R. 6192, 118th Cong. (2024).

22     H.R. 6192 § 4. This provision was added in an amendment adopted on the floor of the House. H.Amdt. 904 to H.R. 6192, 118th Cong. (2024).