Posted on January 6, 2021 by Adam Kahn
Regulatory trackers from Harvard Law School, Columbia Law School, and the New York Times identify over 100 rule changes from the outgoing Trump administration that could increase greenhouse gas emissions or decrease other protections of the environment. The weakening of conservation standards for showerhead flows will be one of the last of such rules to go into effect prior to January 20, 2021. The Department of Energy (DOE) promulgated the so-called “Showerhead Rule” on December 16, 2020, which becomes effective on January 15, 2021. (DOE also promulgated new rules that weaken efficiency standards for certain washers and dryers on the same schedule.)
The Showerhead Rule amends the Energy Conservation Program for Consumer Products Rules, found at 10 CFR Part 430. Part 430 implements part of the “Energy Policy and Conservation Act or EPCA, as amended by the Energy Policy Act of 1992, and codified at 42 U.S.C. 6291-6309. Specific to showers, Section 31(D) of 42 U.S,C. 6293 defines “showerhead” as “any showerhead (including a handheld showerhead), except a safety shower showerhead.” And 42 U.S.C. 6295(j) imposes a maximum water use of 2.5 gallons per minute for “any showerhead” manufactured after January 1, 1994. Since Congress passed EPCA in response to the 1973-74 energy crisis, the implementing rules have largely been viewed as a success, and a stepping stone to further conservation efforts. In January 2017, DOE described the appliance efficiency standards as “highly effective — achieving high bang-for-the-buck energy savings.” In short, this rule cannot be good for the environment.
Application of EPCA to showerheads was admittedly the subject of complaints about inadequate flow, particularly in the years immediately following implementation of the standards. President Trump got lathered up about this too. As he explained in July, 2020:
We’re bringing back consumer choice in home appliances so that you can buy washers and dryers, showerheads and faucets. So showerheads — you take a shower, the water doesn’t come out. You want to wash your hands, the water doesn’t come out. So what do you do? You just stand there longer or you take a shower longer? Because my hair — I don’t know about you, but it has to be perfect. Perfect. (Laughter and applause.)
In response, the Showerhead Rule added two definitions to its Energy Conservation Program rules: “Body spray means a shower device for spraying water onto a bather from other than the overhead position. A body spray is not a showerhead” and “Showerhead means any showerhead (including a handheld showerhead) other than a safety showerhead. DOE interprets the term ‘showerhead’ to mean an accessory to a supply fitting for spraying water onto a bather, typically from an overhead position.” (emphasis added).
What is the effect of this rule? For “ordinary” one-head showers, not much. Flow from a single head shower “spraying device” is still limited by statute to 2.5 gpm. The differences are for those who want a shower with multiple spraying devices (e.g., waterfalls, shower towers, rainheads, and shower systems) and/or “body sprays.” The definitions change a longstanding DOE policy that considers each spraying device from a single pipe to be part of one “showerhead,” so they are collectively limited to 2.5 gpm. Now each spraying device in a product containing multiple “heads” are considered separately for purposes of determining compliance with the 2.5 gpm limit. Thus, a shower with four water spraying devices can use 10 gpm (until the hot water runs out), and Body Sprayer flow is unlimited.
The Showerhead Rule allows showers to consume more water and use more energy to heat water. The increase could be significant: the U.S. Energy Information Administration reports that water heating consumes more household energy than anything but space heating, and showers are one of the largest consumers of hot water. Time will tell whether the additional water and energy wasted in the name of consumer choice is a relative drip or flood.
The incoming administration has options to rescind or reverse rules, including the Showerhead Rule. But President Biden cannot issue an executive order to invalidate an existing regulation. Nor can he “freeze” a rule that has been finalized and has taken effect. Changing a rule requires the usual notice and comment periods, unless the “good cause” exception in the Administrative Procedures Act (APA) can be invoked.
Litigation could also change or delay the effective date of the Rule. The deadline to challenge the Showerhead Rule under the APA and EPCA is March 16, 2021. Litigation can be slow, but if a challenge is brought, in the near term the Department of Justice could decline to defend the rule and request a stay to give DOE the chance to consider amendment or repeal. Similar lawsuits were brought at the end of December 2020 by 15 state attorneys general and NGOs challenging the October 2020 “Dishwasher Rule” which loosened dishwasher efficiency standards.
Showerhead manufacturers also need to contend with state and local law. Many state energy conservation standards are preempted by EPCA, but that law also allows or requires preemption to be waived is specified circumstances. DOE waived preemptionfor showerheads in 2010. Six states then adopted standards stricter than 2.5 gpm: California, New York, Colorado, Washington, Hawaii, and Vermont. These state standards, which likely will be interpreted under the superseded DOE policy, reduce the incentives for showerhead makers to sell products newly authorized by the Showerhead Rule. As other states try to reduce GHG emissions, additional states may promulgate new rules to avoid the effects of a federal rule that does just the opposite.
Will manufacturers retool and remarket their product lines on the assumption that the Showerhead Rule will remain in place, at least for the states that have not adopted their own standards? The choice is theirs, but with increasing ESG considerations, the limited market, and a flood of uncertainty surrounding future of the Rule, many may wash their hands of this opportunity.
The Showerhead Rule will hardly go down as the worst attack on the environment from the outgoing administration. There is simply too much competition. There is also hope that a future regulator will consider the (paraphrased) advice of Rodgers and Hammerstein and conclude: “I’m gonna wash this [Rule] right outta my hair, and send [it] on [its] way.” At 2.5 gpm or less.