HWG LLP Energy Advisory (PDF)

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

Congress is actively considering dramatic changes to the federal energy efficiency program.  The hearings on these potential changes are important not only in themselves, but also because of the Department of Energy (DOE) testimony indicating the agency’s priorities and how it is likely to implement existing law.  Notably as well, Congress is simultaneously moving to fill key energy efficiency roles at DOE.

Legislation.  Congress this year enacted four resolutions1 invalidating DOE efficiency rules adopted toward the end of the Biden Administration pursuant to the Energy Policy and Conservation Act (EPCA).2

Congress may not be done yet, however.  The Subcommittee on Energy of the House Committee on Energy and Commerce is in the midst of contentious hearings on further restrictions.3

Much of the dispute at the hearings has turned on whether the existing program has helped or harmed consumers.  Subcommittee Chairman Rep. Bob Latta (R-OH) was critical of the program: “Over the last decade, it has become apparent that the statutory process for energy efficiency standards is broken. We must reform the process to restore consumer choice, appliance affordability, and true energy savings as the foundation of DOE’s Appliance and Equipment Standards Program.”4 Ranking Committee Member Rep. Frank Pallone (D-NJ) responded: “At a time when home energy bills are rising all over the country, in large part thanks to the disastrous and malicious policies of the Trump Administration and Congressional Republicans, House Republicans have chosen to double down on their attacks on the very tools we have to keep energy bills low.”5

DOE’s Acting General Counsel, Jeff Novak, testified that “DOE has been taking aggressive actions to eliminate regulations that drive up costs and lower quality of life for the American people.”6  He repeatedly stressed that DOE’s approach to standards setting is to do what he termed “localized” analysis.  In practice, this means that DOE will focus on “the efficacy of the appliance, the cost efficiency of the unit, and . . . preserving the policy choice that consumers should have a range of choices available to them.”  This includes choice of energy type, including fossil fuels such as natural gas.  Mr. Novak contrasted this “localized” analysis with “broader” concepts such as greenhouse gases emissions and social costs, which he characterized as “nebulous” or “opaque.”  He also said that energy savings from standards should be “significant” and that standards should not “give up significant utility to yield marginal savings.”  He stressed adoption of reasonable payback periods for recovery of costs of standards.  He also acknowledged, in relation to tradeoffs in standards analysis, that “there are equities here in regard to tooling and reliance costs by manufacturers, and stability in terms of meeting a marketplace.”7

Mr. Novak also indicated that DOE compliance with EPCA’s so-called “lookback” requirements for periodic assessment for potential new standards is a “challenge” for DOE.  “A more frequent lookback thing just basically means . . . more challenges over a shorter period of time.”8  He welcomed further discussion on lookbacks.

There are several efficiency bills before the Subcommittee.  The one focused most broadly on restricting the efficiency program is H.R. 4626, Don’t Mess with My Home Appliances Act.9 Its sponsor, Rep. Rick Allen (R-GA), has stated that it “is a necessary measure to prevent future administrations from issuing burdensome standards on household appliances that would drive up costs and reduce availability.”10 H.R. 4626 is similar to a bill passed by the House of Representatives in 2024, H.R. 6192, Hands Off Our Home Appliances Act.11  While H.R. 6192 did not pass the Democratic-controlled Senate, Republicans currently control both the House and Senate, so a measure along these lines would likely stand a better chance of passage, and approval by the President.  Key features of H.R. 4626 include:

  • The bill would eliminate the so-called “lookback” requirement that DOE review standards every six years for periodic rulemakings for standards.12 Instead, it provides that DOE “may” propose a rulemaking for new standards.
  • It contains provisions for revoking standards. Even after they are revoked, however, the federal action would have preemptive effect to prevent states from filling the regulatory gaps.  More specifically as to revocation:
    • The bill would require DOE to grant a petition to determine if standards for a covered product should be revoked or amended if the standards result in additional costs to consumers; do not result in significant conservation of energy or water; are not technologically feasible; and/or result in the unavailability of the product to American consumers. As noted, the revoked standards would nonetheless be considered to be in effect for purposes of EPCA’s preemption provision.13
    • Not later than two years after the issuance of any final rule prescribing a new or amended standard, DOE would be required to evaluate the rule to determine whether the standard is technologically feasible and economically justified and whether the regulatory impact analysis for the rule remains accurate. If DOE determines, based on that evaluation, that the standard is not technologically feasible or economically justified, the standard would have no force or effect (except that it would be considered to be in effect for purposes of EPCA’s preemption provision) and DOE may publish a final rule amending the standard to be technologically feasible and economically justified.  The amendment is to apply to such a product manufactured after the date that is two years after publication of such final rule.
  • The bill would require DOE to consider factors such as costs to low-income households and full-life-cycle costs of the product, and ensure that a standard provides no additional costs for consumers (not only for low-income consumers).
  • It would prohibit DOE from issuing new or amended standards for distribution transformers.
  • DOE would be prohibited from determining that imposition of a standard is economically justified unless it determines that compliance with such standard will result in (i) a reduction of at least 0.3 quads of site energy over thirty years;14 or (ii) at least a ten percent reduction in energy or water use of the covered product.
  • The bill provides that, in determining whether imposition of a standard is economically justified, DOE “(i) shall prioritize the interests of consumers” and “(ii) may not consider estimates of the social costs or social benefits associated with incremental greenhouse gas emissions.”

H.R. 4626’s provisions on revocation of standards would present significant legal and policy issues with regard to their relation to an EPCA “anti-backsliding” provision.  That provision states that DOE “may not prescribe any amended standard which increases the maximum allowable energy use, or, in the case of showerheads, faucets, water closets, or urinals, water use, or decreases the minimum required energy efficiency, of a covered product.”15  It also bears noting that DOE this year issued numerous proposals to rescind or amend a broad range of efficiency rules.  Some include interpretations of the anti-backsliding provision that would, for example, allow for eliminating current standards set by DOE and returning to the statutory levels set in EPCA.16>

Another bill, H.R. 4593, Saving Homeowners from Overregulation with Exceptional Rinsing (SHOWER) Act, would reject the Obama-Biden era DOE approach to water pressure for showerheads.17  It would codify an industry definition of showerheads (except in regard to safety showerheads used for emergency purposes) and direct DOE to revise existing regulations to reflect the updated statutory definition.  A separate bill, H. R. 5184, Affordable HOMES Act, would strike provisions that established requirements for energy efficiency in manufactured housing.18

The Subcommittee is also considering bills aimed at preserving consumer choice in fuels.  H.R. 4690, Reliable Federal Infrastructure Act would repeal a provision requiring a reduction in and eventual elimination of fossil-fuel-generated energy consumption by newly constructed or renovated federal buildings.19  And H.R. 3699, Energy Choice Act would prohibit state and local governments from prohibiting or limiting the connection, reconnection, modification, installation, transportation, distribution, or expansion of an energy service based on the type of energy that would be delivered.20

Other bills before the Subcommittee in the hearings include: H.R. 4758, Homeowner Energy Freedom Act, which would repeal existing provisions that (i) establish a high-efficiency electric home rebate program, (ii) authorize state-based home energy efficiency contractor training grants, and (iii) provide financial assistance to states and localities to adopt certain energy conservation building codes;21 H.R. 3474, Federal Mechanical Insulation Act, which aims to increase energy efficiencies in federal buildings by clarifying the term “mechanical insulation property” and by expanding the definition of “energy and water evaluations;”22 and H.R. 1355, Weatherization Enhancement and Readiness Act of 2025, which is intended to reauthorize the Weatherization Assistance Program and implement other related changes.23

Senate action on nominations.  On September 17, 2025, the Senate approved Jonathan Brightbill as DOE General Counsel.24 He has practiced law in Washington, DC and served in the Justice Department from July 2017 to January 2020, and briefly again in January 2021.  During this period, he served as, among other things, Acting Assistant Attorney General for the Environment and Natural Resources Division, where he served “effectively as outside counsel for the Department of Energy across a range of matters.”25  He testified that, if confirmed, “it would be my privilege to assist President Trump and Secretary Wright in achieving their vision of American energy dominance.”  His nomination was one of forty-eight that were approved in a bloc vote, pursuant to a change in rules to speed action on nominations.26

Audrey Robertson’s nomination for Assistant Secretary of Energy for Energy Efficiency and Renewable Energy was favorably voted out of the Senate Committee on Energy and Natural Resources on July 30, 2025, and is pending before the Senate.  She has experience as an energy company executive and in energy investments.  This includes serving in roles at Franklin Mountain Energy; Copper Trail Partners; Kayne Anderson Capital Advisors; Bonanza Creek Energy; Extraction Oil and Gas; and Goldman Sachs & Co.27  She testified at her confirmation hearing that she supports “all forms of reliable, affordable and secure energy” and that, if confirmed, she would make “science-based decisions that benefit all Americans.”28  She further testified that one of her responsibilities would be addressing burdensome efficiency regulations that do not produce net benefits.  And she indicated openness to potentially establishing new classes within product types to protect useful product features.

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For more information 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 and as General Counsel at the Federal Communications Commission.  John Hodges regularly counsels clients on energy efficiency issues, including standards, testing and labeling, legislation, rulemaking, litigation, and enforcement.  Jason Neal counsels clients on regulatory issues in DOE proceedings and represents clients in appellate challenges to adverse decisions. 

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 The resolutions are H.R.J. Res. 20, 119th Cong. (2025) (water heaters); H.R.J. Res 24, 119th Cong. (2025) (walk-in coolers and walk-in freezers); H.R.J. Res. 75, 119th Cong. (2025) (commercial refrigerators and freezers); and H.R.J. Res. 42, 119th Cong. (2025) (appliances).  They were adopted pursuant to the Congressional Review Act, 5 U.S.C. §§ 801–808.

2 42 U.S.C. § 6291 et seq.

3 See Building the American Dream: Examining Affordability, Choice, and Security in Appliance and Buildings Policies: Hearing Before the Subcomm. on Energy of the H. Comm. on Energy and Com., 119th Cong. (Sept. 9, 2025); Appliance and Building Policies: Restoring the American Dream of Home Ownership and Consumer Choice: Hearing Before the Subcomm. on Energy of the H. Comm. on Energy and Com., 119th Cong. (Sept. 16, 2025).

4 Chairman Latta Delivers Opening Statement at Subcommittee on Energy Hearing on Affordability, Choice, and Security in Appliance and Building Policies, Energy & Com. (Sept. 9, 2025), https://energycommerce.house.gov/posts/chairman-latta-delivers-opening-statement-at-subcommittee-on-energy-hearing-on-affordability-choice-and-security-in-appliance-and-building-policies.

5 Pallone Blasts Republicans for Raising Americans’ Energy Bills Over Politicized Anti-Energy Efficiency Crusade, Energy & Com. Comm. Democrats (Sept. 9, 2025), https://democrats-energycommerce.house.gov/media/press-releases/pallone-blasts-republicans-raising-americans-energy-bills-over-politicized.

6 Hearing on Appliance and Building Policies, supra note 4, (testimony of Jeff Novak, Acting Gen. Couns. and Principal Deputy Gen. Couns.), https://d1dth6e84htgma.cloudfront.net/ 09_‌‌‌16_2025_ENG_Testimony_Novak_27cccaed36.pdf.

7 Hearing on Appliance and Building Policies, supra note 4, (statement of Jeff Novak, Acting Gen. Couns. and Principal Deputy Gen. Couns.), https://www.congress.gov/119/ meeting/house/118615/documents/HHRG-119-IF03-Transcript-20250916.pdf.

8 Id.

9 H.R. 4626, 119th Cong. (1st Sess. 2025).

10 Congressman Allen Introduces Bill Preserving Consumer Choice, Rep. Rick W. Allen (July 23, 2025), https://allen.house.gov/news/documentsingle.aspx?DocumentID=6854.

11  H.R. 6192, 118th Cong. (1st Sess. 2023).  This was subject to an earlier HWG energy advisory.  Sean A. Lev, John A. Hodges, and Jason E. Neal, House Passes Bill to Curb DOE Energy Efficiency Powers, HWG (May 13, 2024), https://hwglaw.com/2024/05/13/house-passes-bill-to-curb-doe-energy-efficiency-powers/.

12 42 U.S.C. § 6295(m)(1)–(2).

13  Id. § 6297.

14  A quad is a unit of energy equal to 1015 (a short-scale quadrillion) British Thermal Units (BTU).  “Site energy” is measured at the point of use.  This contrasts with “source energy,” a measurement that accounts for the generation, transmission and distribution of the energy.  See Federal Energy Management Program, DOE, Reporting Guidance for Federal Agency Annual Report on Energy Management at 6 (2023), https://www.energy.gov/sites/ default/files/2023-09/fy2023-annual-reporting-guidance.pdf.

15 42 U.S.C. § 6295(o)(1).

16  See Sean A. Lev, John A. Hodges, and Jason E. Neal, New Trump Administration Proposals Target DOE Energy Efficiency Rules, HWG (May 29, 2025), https://hwglaw.com/2025/ 05/29/new-trump-administration-proposals-target-doe-energy-efficiency-rules/.

17  H.R. 4593, 119th Cong. (1st Sess. 2025).

18 H.R. 5184, 119th Cong. (1st Sess. 2025).

19 H.R. 4690, 119th Cong. (1st Sess. 2025).

20 H.R. 3699, 119th Cong. (1st Sess. 2025).

21 H.R. 4758, 119th Cong. (1st Sess. 2025).

22 H.R. 3474, 119th Cong. (1st Sess. 2025).

23 H.R. 1355, 119th Cong. (1st Sess. 2025).

24 Annie Snider and Ben Lefebvre, Senate Confirms Slate of Trump Energy Nominees, POLITICO Pro (Sept. 18, 2025), https://subscriber.politicopro.com/article/2025/09/senate-confirms-slate-of-trump-energy-nominees-00570618.

25 Full Committee Hearing to Consider Pending Nominations: Hearing Before the S. Comm. on Energy & Nat. Res., 119th Cong. (testimony of Jonathan Brightbill, Nominee for Gen. Couns., DOE) (May 14, 2025), https://www.energy.senate.gov/services/files/C68B1BC2-398A-4104-96D1-29DB00935AD4.

26 Frank Thorp V and Sahil Kapur, Senate Confirms 48 Trump Nominees at Once, Including Kimberly Guilfoyle and Callista Gingrich, NBC News (Sept. 18, 2025), https://www.nbcnews.com/politics/congress/senate-confirms-48-trump-nominees-kimberly-guilfoyle-callista-gingrich-rcna231946.

27 Audrey Robertson, LinkedIn, https://www.linkedin.com/in/audreyrobertson/ (last visited Sept. 25, 2025).

28 Full Committee Hearing to Consider Pending Nominations: Hearing Before S. Comm. on Energy & Nat. Res., 119th Cong.(testimony of Audrey Robertson, Nominee for Assistant Sec’y of Energy Efficiency & Renewable Energy, DOE) (July 9, 2025), https://www.energy.senate.gov/services/files/4FA68769-D2C7-44F0-9F41-43E6E231224B.