Why Biden’s new dishwasher regulations are a dirty joke

Industrial policy — government planning the billions of variables generated by hundreds of millions of people making economic choices — provides something there is never enough of: comic relief. And when industrial policy mates with climate policy, there is surplus merriment.

Topics for another day are the difficulties of electric vehicles, which supposedly will ameliorate global boiling — if they can be coaxed into functioning during something that evidently was left out of the planners’ plans: winter. Instead, today consider another of the Biden administration’s aspirations: planet-friendly dishwashers.

The Energy Department’s busy beavers, with their unsleeping search for reasons to boss us around for our own good, decided that dishwashers use too much water and energy, there presumably being a shortage of the former and a stigma attached to using the latter. So, in 2012 the department issued regulations so annoying to consumers, the Trump administration relaxed them. That was sufficient reason for the Biden administration, on its first day, to order a reversal of the reversal.

This issue was catnip for the admirable Competitive Enterprise Institute, which was founded 40 years ago to be a nuisance to government that makes a nuisance of itself. The CEI’s prodding in 2018 produced the Energy Department’s 2020 ruling permitting dishwashers that were better (for the reasons, read on) at washing dishes than were machines that complied with the 2012 regulations.

Responding to the Biden administration’s reinstatement of those regulations, a slew of states sued the Energy Department, asserting standing to sue because they buy dishwashers and are injured by being prevented from buying a product precluded by a regulation. This dispute reached the US Court of Appeals for the 5th Circuit, which, in its Jan. 8 ruling, swatted away what it tartly called the department’s “government-always-wins” argument for denying the states’ standing: Because the Energy Department’s regulations prevented manufacturers from producing never-made machines, the states cannot prove that anyone would actually have purchased them.

Then the court termed the rule repealing the 2020 rule “arbitrary and capricious.” It noted:

“DOE stated that its energy conservation program must promote ‘water conservation’ and regulate ‘water use.’ But it is unclear how or why DOE thinks it has any statutory authority to regulate ‘water use’ in dishwashers and washing machines.” The pertinent statute authorizes regulating energy use “or” water use. “So it seems obvious that the statute gave DOE power to regulate energy use for energy-using appliances” such as dishwashers, or “water use for non-energy-using appliances,” such as shower heads.

So, the court said, not only has the Energy Department acted in excess of statutory authority, but the record also contains “ample evidence” that the department’s new rules reduced efficiency in both energy and water use because “purportedly ‘energy efficient’ appliances do not work.” People “may use more energy and more water to preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances.”

Says who? Says the Energy Department, citing commentators reporting that “many consumers end up running their dishwasher multiple times to get dishes clean.” The court said the department “appeared to agree that the frustratingly slow pace of modern dishwashers caused consumer substitution away from dishwashers and toward handwashing.” And: “DOE itself estimated in 2011 that handwashing consumes 350% more water and 140% more energy than machine washing.”

The court: “What did DOE say in response? Basically nothing: It acknowledged the concern and moved on.” But: “It’s a well-worn principle of arbitrary-and-capricious review that an administrative agency ‘must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’”

Imagine how many government undertakings — in industrial policy, climate policy and elsewhere — might perish if held to the reasonable requirement of connecting facts and choices in non-arbitrary, non-capricious ways.

The Washington Examiner’s Jon Miltimore, noting the probability that many people respond to low-flow shower heads by taking longer showers, recalls the “Seinfeld” episode in which Jerry, Newman and Kramer are distraught and disheveled because they cannot get properly cleaned using the government’s preferred shower heads. Kramer (“There’s no pressure; I can’t get the shampoo out of my hair!”) solves the problem by buying on the black market a shower head made before the ascendancy of the climate scolds.

The Energy Department, whose Loan Programs Office has dispensed hundreds of millions of disappearing dollars in bad investments, has a lengthening menu of mischief. The implementing regulations are produced by people who went to law school to be qualified to write such annoyances. Amazing.