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States and Major Environmental and Consumer Organizations Threaten to Sue the Department of Energy Over Alleged Delays in Issuing Energy Efficiency Standards

Aug.13.2020

On Monday, more than a dozen states and major environmental and consumer organizations issued notices of intent (available here and here) to sue the Department of Energy (DOE) for alleged violations of the Energy Policy and Conservation Act (EPCA).

As discussed in previous client alerts, DOE administers EPCA by setting mandatory appliance efficiency standards or conservation standards for over 60 covered products. Under the law, DOE is required to reexamine the standards for each product at least once every six years, and must update the standards for certain products by specific deadlines.

Although DOE has recently proposed or finalized updates to conservation standards for several products (e.g., metal halide lamps, commercial packaged boilers, portable air conditioners) and issued requests for information regarding several more (e.g., commercial clothes washers, external power supplies, electric motors), the notices of intent to sue allege that DOE is delinquent in reviewing the standards for sixteen covered products under EPCA, and in setting standards for nine more, a list of which is below. Pursuant to EPCA’s citizen suit provision, the states and environmental and consumer organizations must now wait sixty days before filing suit, during which time DOE can seek to cure the alleged violations.

The notices of intent to sue identified DOE as being delinquent in reviewing or issuing standards for the following products:

Small electric motors; pool heaters; water heaters; clothes dryers; room air conditioners; oil furnaces and weatherized gas furnaces; refrigerators and freezers; fluorescent lamp ballasts; residential clothes washers; evaporatively-cooled commercial air conditioners; water-cooled commercial air conditioners; distribution transformers; microwave ovens; direct heating equipment; dishwashers; electric motors; furnace fans; non-weatherized and mobile home gas furnaces; cooking products; commercial water heaters; metal halide lamp fixtures; walk-in coolers and freezers; commercial refrigeration equipment; dedicated outdoor air systems; computer room air conditioners; and variable  refrigerant flow (VRF) air conditioners and heat pumps.

If DOE fails to review and/or issue new standards for the above products, the states and the environmental and consumer organizations are expected to file suit upon expiration of the sixty-day waiting period, which would be on or soon after October 9, 2020. It remains to be seen if DOE will issue some or all of the updated product standards before the deadline.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Cheryl A. Falvey
Partner – Washington, D.C.
Phone: +1 202.624.2675
Email: cfalvey@crowell.com
Tyler A. O'Connor
Counsel – Washington, D.C.
Phone: +1 202.624.2929
Email: toconnor@crowell.com
Matthew B. Welling
Counsel – Washington, D.C.
Phone: +1 202.624.2588
Email: mwelling@crowell.com
Charlene Sun
Associate – Orange County
Phone: +1 949.798.1329
Email: csun@crowell.com