A Review of Critical Comments – Watts Up With That?

Review of Comments

The filed comments exceeded expectations. The free-market commenters were especially prevalent and displayed great content. Some trade associations also deserve special recognition.  For example, I commend Association of Home Appliance Manufacturers. AHAM surprised me by soundly rebuking EERE’s appliance electrification objectives. AHAM (and others) also pointed out that EERE is making it difficult for manufacturers to comply, including the use of obsolete test procedures for demonstrating manufacturer compliance. 

For example; two days after the April 17^th comment deadline, the Federal Register published a “notification of petition for rulemaking; request for comment” regarding AHAM’s request for updating cooking product test procedures.” A little belated perhaps? I think so.

American Gas Association

AGA’s comments and press release also warrant kudos. In short, AGA succinctly commented:

… by DOE’s estimates, the SNOPR would render 50%-96% of the gas cooktop models currently in the marketplace non-compliant and illegal to manufacture and sell if the proposal is finalized. According to DOE’s analysis, this extraordinary regulatory action would result in consumer cost savings for gas cooktops amounting to a scant $1.51 per year.

From AGA’s Press Release, quoting president and CEO Karen Harbert. :“It goes without saying that the government should not be in the business of prescribing how everyday Americans cook their meals.”

The whole of government approach to ban natural gas ignores consumer preferences and pocketbooks and the facts that clearly show how natural gas is helping our nation achieve our energy and environmental goals. The natural gas industry is a champion of energy efficiency, but this rule is not an energy efficiency measure as advertised, rather, it is an effort to remove gas appliances from the market and a clear violation of the Energy Policy and Conservation Act.

These powerful words need to be followed by equally powerful actions. I pray that AGA does not let the complacency of some combined (gas and electric) utility members dissuade them from taking on the unprecedented hostility of the Biden Administration towards the direct use of natural gas, the primary appliance energy source alternative to electricity. And of course, propane is also a leading alternative to electricity.

American Public Gas Association

APGA also provided exceptionally concise comments.  This is especially true regarding summarizing the many problems associated with DOE’s test procedures. EERE’s test procedures tend to be especially onerous for small manufactures; forcing concentration of manufacturing into ever fewer but larger manufacturers, who tend to be more cozy with Federal government largesse.

National Association of Home Builders

 I was also pleased to see that the NAHB comments argued for consumer choice via gas appliances. My concern was that NAHB might give-in to the obscene electrification incentives being offered by the so-called “Inflation Reduction Act.” But NAHB held strong. Good on NAHB!

ONE Gas

The comments of the utility ONE Gas also stood out for both their historical depth and technical breadth. For just one example, they cited the unambiguous congressional intent for maintaining regulatory “fuel neutrality,” a bedrock principle that DOE has plainly abandoned.

Spire

My ex-employer, Spire, also submitted strong comments (based upon a requested copy that was forwarded to me on April 18th).  However, searching docket comments for Spire yielded nothing recent. As of this morning, it’s been a week since the last comment was posted (from CEI’s Ben Liberman). I’ve advised Spire to check with regulations.gov on the status of their comments per the “receipt” number issued upon successful comment submission.

My Comments

I also filed comments.  Most of these reiterated points that fellow commenters filed: that DOE is making a mockery of ostensible fuel-neutrality policies through its overt promotion of electrification.  My comments also cautioned DOE against outsourcing anti-competitive concerns to an equally woke Department of Justice (DOJ). So far at least, the DOJ has never questioned DOE’s pro-electric biases despite numerous attempts to get them to do so (with AGA’s filed comments referencing the latest).  

Since the DOJ also provides DOE’s litigation services, should someone choose to sue DOE, this represents a massive conflict of interest.  Read the attached letters to my filed comments for more information regarding how the DOJ chronically shirks its duties by myopically restricting its evaluation of anti-competitive behavior to that within the appliance manufacturing marketplace (via “Herfindahl–Hirschman Indices”).

The much bigger picture of eliminating competition and consumer choice has only expanded in scope through the now official Biden Administration policies of total societal electrification and its “whole of government” war against the direct use of fossil fuels. Biden’s “whole of government” Department of Justice is becoming far less likely to challenge DOE on matters of fuel neutrality.

Also in the same vein as other commenters, I discussed the negligible energy cost reductions being proposed. When energy savings amounts are broken down to the individual consumer component level, the dollar value appears to be even more negligible. Even still, anemic savings amounts are inflated due to chronically inaccurate life-cycle costing estimating of energy costs.

Another point I emphasized is that DOE overall savings amounts include social costs of carbon benefits and nebulous health benefits; both of which are controversial and biased.  The following table, extracted out of DOE’s “Technical Support Document” (TSD) illustrates how their “Technical Support Document” (TSD) savings for SCC and health, bolster energy cost savings. 

While DOE can “consider” such matters, the congressional intent of the Energy Policy Conservation Act (EPCA) is based upon reducing consumer energy expenses.

Generally Speaking …

Opposing comments to DOE‘s proposed rule demonstrates a broad commonality of purpose that everyone supporting consumer choice should read and understand. To the extent feasible, all the comments listed in the first table are worthy of review so that commenters opposing adoption can better understand each other and, in the process, sharpen future comments and build consumer-oriented networks to put these comments into action.

I fully realize that this article is overlooking the contributions of many commenters opposing DOE’s over-reaching and illegal objectives.  I apologize for not giving proper recognition to every commenter that deserves it; but such a review would probably be too heavy for most people to lift, let alone read.

Calling DOE guilty of “nanny state” behavior insults the inherent maternal (but forgivable) instincts of nannies everywhere to make us do what’s best for us.  Increasingly dystopian policies to ostensibly fight the “existential threat of anthropogenic global warming” are far worse. The terms “road to serfdom” or perhaps “you will own nothing and be happy” come to mind.

So where do we go from here? Those supporting free markets, based upon informed consumer choice, can litigate. Or they can lobby congress to curb the administrative state’s self-serving penchants for control.   Or both.  If litigation avenues are pursued, detailed technical analyses and citations are advised, to ensure a robust record.  If Congressional intervention avenues are pursued (a.k.a., lobbying), perhaps more weight should be given towards the readability of filed comments.  Of course, these options are not mutually exclusive and filed comments can be “repurposed” for other objectives as well; like building public support  to expand the wide ranging  and growing discontent with heavy-handed and over-reaching energy/environmental power grabs.  In short, the gas stove regulatory debacle makes an effective “poster child” for regulatory abuse of consumer choice.

These regulations are no longer “moving the market” to higher levels of efficiency.  They are simply moving the market to higher levels of electrification based upon physics/economics-defying myths of a cleaner and more affordable future via all-renewable power generation (so-called deep decarbonization).

A Victory: California Restaurant Association v. City of Berkeley

You may have heard about the California Restaurant Association v. City of Berkeley case.  On April 17^th, 2023 (the same day comments were due for this docket), the Ninth Circuit court struck down a local ordinance banning natural gas in newly constructed buildings, concluding that federal law preempts the ordinance.

Bluntly summarizing the case, Judge Bumatay stated that “EPCA preempts building codes, like Berkeley’s ordinance, that function as “energy use” regulations.  In short, EPCA does not permit States and localities to dodge preemption by hiding “energy use” regulations in building codes” and “Berkeley can’t bypass preemption by banning natural gas piping within buildings rather than banning natural gas products themselves.” For additional reference, a very thorough review is “Ninth Circuit Appeals Court Overturns Berkeley’s Ban on Gas Stoves.”

How much the “CRA v. Berkeley” decision will slow down deep decarbonization regulation zealotry is yet to be seen.  It could be a little or it could be a lot. And it may also apply to what DOE is proposing within this Docket. Regardless of how much it helps, we should recognize it was a gift.  Be grateful and let’s not squander it. Rather, let’s apply it to expose and take on the morbidly over-funded opposition (via unwitting taxpayer funded powerplays contained in the Inflation Reduction Act (IRA).

CRA v. Berkeley is indicative of increasingly electrocentric building “energy efficiency” codes.  Natural gas and propane positions are being overrun by environmental zealots, underwritten in large part by DOE.  They have packed the bleachers and corrupted the building energy code referees under the guise of “consensus.”  These efforts will multiply as the “all you can eat” buffet of IRA funding is distributed.

What is Next?

Once DOE finalizes a proposed rulemaking, under the Administrative Procedures Act (APA), a rule can be challenged in court on the basis that it is arbitrary, capricious, an abuse of discretion that it is contrary to the Constitution or a statute; or that the agency failed to follow required legal procedures. I believe the period to do so is 30 days (if it hasn’t changed).

If not appealed within 30 days, under the APA’s provisions, a “Final Rule” becomes law and EPCA provisions prevent “backsliding” (regardless of anti-consumer severity). If this happens, reversing it may literally take an Act of Congress. However, I am not a lawyer.  Therefore, I am not qualified to provide legal advice. Statements in this paragraph are merely my reflections upon the two appeals under the APA that I have been involved in.  Such appeals can and do take years. The latter instance, APGA v. DOE (for commercial boilers), is still ongoing after several years of litigation.

The greatest risk to consumers is that the direct use of natural gas is forced into permanent exile if not extinction.  And that is the path to which the Biden Administration and their electrocentric cronies intend to “lead” us.  Perhaps this course can be reversed by “Executive Order” (EO) edict if the next President is willing.  But EO’s can and are easily reversed upon Presidential regime change.  A more lasting result will likely require Congressional action accompanied with massive pruning of Federal agencies who are increasingly self-serving and apparently intend to control every possible aspect of public behavior.

In closing, this work is not suitable for the complacent or the faint-of-heart.  Keep in mind that

many assume that half efforts can be effective.  A small jump is easier than a large one, but no one wishing to cross a large ditch would cross half of it first. (Karl von Clauswitz)

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At MasterResource, readers are encouraged to ask questions or add comments to articles as shown below. I’ll stop writing here for that reason but will do my best to address all questions or comments. So please feel free to chime in with either.

Additional reference links:

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Mark Krebs, a mechanical engineer and energy policy consultant, has been involved with energy efficiency design and program evaluation for over thirty years. Mark has served as an expert witness in dozens of State energy efficiency proceedings, has been an advisor to DOE and has submitted scores of Federal energy-efficiency filings. His many MasterResource posts on natural gas vs. electricity and “Deep Decarbonization” federal policy can be found here. Mark’s first article was in Public Utilities Fortnightly, titled “It’s a War Out There: A Gas Man Questions Electric Efficiency” (December 1996). Recently retired from Spire Inc., Krebs has formed an energy policy consultancy (Gas Analytic & Advocacy Services) with other veteran energy analysts.

[1] I speculate that Federal agencies have more robust (data-base query) tool sets available with which to process comments. Either that or they rely on brute force of relatively unlimited resources. But for independent analysts, like me, however, only by slogging through all the comments can a complete understanding of overall comments be derived.  This onerous process also makes it easy to inadvertently skip over any given comment.  Other than guessing at search terms and getting lucky at it, it is simply not feasible for independent analysts like me to find specific comments from (for example) State Attorney Generals, Congressional comments, or comments from the scientific community (like the CO2 Coalition).  I basically found these by plowing through all the most recently filed comments one-by-one.

[2] Joint comments submitted by the Competitive Enterprise Institute included, Project 21, Caesar Rodney Institute, Center of the American Experiment, Mackinac Center for Public Policy, Thomas Jefferson Institute for Public Policy, Committee For A Constructive Tomorrow, Roughrider Policy Center, Heartland Institute, Eagle Forum, Rio Grande Foundation, Cornwall Alliance for the Stewardship of Creation, Conservative Caucus, Science and Environmental Policy Project, 60 Plus Association, Energy & Environment Legal Institute, Consumers’ Research, Institute for Energy Research, FreedomWorks, Independent Women’s Forum, John Locke Foundation, America First Policy Institute, Leadership Institute, Center for Urban Renewal and Education, Association of Mature American Citizens Action, Free Enterprise Project, Americans for Prosperity, Conservative Partnership Institute, American Constitutional Rights Union Action, Becky Norton Dunlop, Faith Wins, The Heritage Foundation.