TE DEPARTMENT of Energy has come up with the ultimate bureaucratic solution to a tricky legal problem. The law directs DOE to issue a regulatory standard. Twice during the past year Congress has reiterated its determination that this standard be issued. DOE would rather not. The answer--it is absolutely brilliant: the standard will be that there is no standard.
The Energy Policy and Conservation Act directs DOE to develop energy efficiency standards for major household appliances, including water heaters, air conditioners, refrigerators and freezers, furnaces, kitchen ranges and clothes dryers. Together they use more than 80 percent of all the energy consumed in residences. In order to avoid an undue economic burden imposed on manufacturers by a patchwork of state and federal standards, the law also provides that, when issued, the federal efficiency standards will preempt state standards. The kicker in DOE's no-standard standard is that the preemption remains; state efficiency standards already in effect would become illegal.
Back in 1980, when the requirement for efficiency standards was enacted, the memory of 1979--when oil prices more than doubled in less than a year-- was still fresh. It helped to focus Congress' attention on whatever opportunities existed to cut Americans' very high energy use with a minimum of pain. Appliances were--and are--an obvious target. They use a lot of energy, most of it as electricity, the most expensive form of energy.
But Congress found that higher energy prices alone would not induce as much improvement in the efficiency of appliances as was economically justified. In part this was because consumers lacked the necessary information. So labels describing energy efficiency were required. But even that was not enough, for the simple reason that most of the major appliances are purchased by builders, developers and landlords, who do not care what an appliance may cost to run, only what it costs to buy. Faced with a choice, a builder will likely as not choose the cheapest appliance even though, over its lifetime, it may cost its owner far more than one with a slightly higher initial price. So Congress decided that market forces needed a push in the form of minimum efficiency standards.
Congress told DOE to issue standards only if each were technologically feasible, economically justified and would save a "significant" amount of energy. By fiddling with the economic models, changing a few assumptions here and there and defining "significant" energy savings in a way that could not be met, the Energy Department, which appears to believe that any regulation is a bad regulation, managed to confound Congress' order.
The courts may not accept the no-standar standard, but Congress, despite continuing support for the standards, appears to have no more moves to make. If the proposal stands, the losers will be all of us--that is, all the people who pay electricity bills.