by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
Headlines this week claimed that “Heading Out the Door, Biden Seeks to Ban 40 Percent of Water Heaters.” It is highly unlikely that President Biden is even aware of the last regulation published by his Department of Energy (DOE). Though he supported their green agenda over the past four years, most details have been left to his appointees at the DOE and their environmental industry allies.
This last rule was pushed out during the holidays, another federal rule restricting another of the most common household appliances, hot water heaters. Almost half of the water heaters in America are powered by clean-burning natural gas, and tankless water heaters are becoming increasingly popular, the trend in new home construction because they save so much space. The new rule zeroes in on those, ratcheting up “energy efficiency” standards to a level such water heaters do not meet. The result would be, beginning with sales in 2029, a ban on gas tankless water heaters. Despite the White House’s denial, that would eventually phase out existing water heaters, too, as they inevitably wear out and need replacement. New electric tankless models are estimated to cost $450 more, and that’s on top of the $2,800 increase in water heater prices caused by other already-implemented DOE rules.
Confronted by angry consumer groups, the DOE referred to the proposal as “long-awaited standards” because Congress required appliance standards to be reviewed every six years. That does not mean, of course, that Congress authorized or directed the department to ban stoves, furnaces, water heaters or other gas appliances. Even the DOE acknowledges that it has no such statutory authority, so it relies on a consent decree it signed as part of a lawsuit settlement with a friendly environmental group.
That has become an all-too-common work-around when agencies want to implement rules without legal authority, such as the DOE regulating the amount of gas, electricity and water that appliances can use. Courts are increasingly hostile to such assertions of authority where Congress did not explicitly grant it. Last year the Fifth Circuit Court of Appeals ruled that the DOE has no authority to regulate water use by dishwashers and washing machines, and it is likely this latest rule will face similar scrutiny if left standing.
