COLUMN - What DOJ’s defense of energy standards for stoves says about Trump's view of executive power

By Jenna Greene

Sept 4 (Reuters) - U.S. Justice Department lawyers are set to take the podium before a federal court of appeals panel in New Orleans on Thursday in a case involving energy efficiency requirements for stoves and ovens. Onlookers might be excused for wondering what year it is.

DOJ lawyers are defending a Biden-era rule boosting the requirements, even as the Trump administration has claimed similar regulations for other appliances are burdensome and costly, and moved to roll them back. Moreover, the feds are facing off against attorneys general from seven Republican-led states including Texas, Tennessee and Nebraska that are usually staunch Trump allies.

No, the 5th U.S. Circuit Court of Appeals has not opened up a wormhole through time to when Democrats led the executive branch. Instead, environmental and energy lawyers following the case tell me they see the Trump administration’s litigation posture here as more about guarding executive power than a zeal to protect Biden’s rules on eco-friendly cooktops.

To Beveridge & Diamond principal Dan Eisenberg, who defends companies facing government enforcement actions, it’s not hard to imagine a scenario where Trump's Department of Energy might want to use the same administrative shortcut to make rules of its own. The ability to enact so-called direct final rules "gives (the administration) a lot of discretion,” he told me - but more on that later.

A White House spokesperson referred my request for comment to the Justice Department, which did not respond.

A spokesperson for the Tennessee attorney general’s office called the rule “harmful federal overreach.” Lawyers representing the other states, which also include Mississippi, Montana, Louisiana and Utah, did not respond to requests for comment.

A bit of background: Per the Energy Policy and Conservation Act, which was enacted in the wake of the 1973-1974 oil embargo, the Department of Energy is charged with setting efficiency standards for household appliances including stoves and ovens.

The goal is laudable: energy savings, consumer savings and environmental benefits. What’s not to like?

Depending on who you ask, a lot.

In the cooking appliance rule, industry players argued for years that stricter standards were not justified, while environmental groups pushed for action. In February 2024, DOE under President Biden announced a “direct final rule” increasing the minimum efficiency standards for electric and gas ovens and stoves.

The rule was the result of a compromise by stakeholders on all sides, coming after DOE originally proposed more stringent standards that critics said would have effectively banned gas stoves. A DOE spokesperson did not respond to a request for comment.

Industry trade group the Association of Home Appliance Manufacturers, whose member companies supply nearly 100% of the market for stoves and ovens, backed the compromise proposal, as did environmental and consumer advocacy organizations and the utility PG&E Corp.

Democrat-led California, New York and Massachusetts helped broker the deal.

The new standards “represent the carefully considered judgment of the most active stakeholders,” the groups said in joint comments to the government, and will result in “significant” energy savings.

They also said making stoves and ovens more energy-efficient won’t lessen their utility, performance or availability.

Despite the assurances, 23 states still objected to the new standards and seven went on to file suit in February 2025 in the 5th Circuit. (Per a statutory provision, such challenges bypass district court and are heard directly by a federal court of appeals.)

The states argue that for new stoves and ovens to comply with the higher efficiency standards, the appliances will have to use more complex components, resulting in lower reliability.

The states say that "more parts and greater complexity shortens (the) lifespan" of appliances, calling the rule arbitrary and capricious.

The states also took issue with how the rule was enacted, an argument that requires a small detour into an obscure but notable corner of administrative law.

Congress in 2007 authorized DOE when revising appliance efficiency standards to skip the normal, cumbersome rulemaking process, which requires an advanced notice of rulemaking, a notice of rulemaking, then a final rule. Instead, the Secretary of Energy can simply issue a “direct final rule,” followed by a public comment period.

Such a move has historically been limited to noncontroversial standards, the states said, and support for the cooking appliances rule is “nonrepresentative and ideologically-skewed."

In defending the rule, DOJ lawyers don’t focus on extolling the benefits of more efficient stoves and ovens – not surprising, considering the Trump administration has moved to roll back standards for a range of other products such as dishwashers, faucets, microwaves and portable air conditioners, and to end the Energy Star appliance rating program.

What DOJ lawyers do stress is the power of the Secretary of Energy to issue direct final rules, even when faced with opposition.

The law “does not require consensus but vests discretion in the Secretary to determine when a joint proposal is ‘fairly representative’ of relevant points of view,” DOJ lawyers wrote.

Timothy Ballo, an attorney with Earthjustice who penned a proposed amicus brief for the Sierra Club backing the cooking appliance rule only to have the filing rejected without explanation by the court, told me he sees why DOE would want to defend its direct rulemaking authority. In effect, he said, it allows the administration "to say ‘If you don’t like what we’re doing, you can go pound sand.’”