The Volokh Conspiracy
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"Want a Hot Shower? Call Your Congressman," But Not Just to Support a CRA Resolution.
A useful example of how meaningful regulatory reform requires legislative action--and not just the passage of Congressional Review Act resolutions.
Steve Moore has an op-ed in the Wall Street Journal encouraging support for a Congressional Review Act resolution to repeal a Biden Administration energy efficiency regulation that will effectively ban most natural gas instantaneous water heaters currently on the market. As one might expect, producers of such water heaters oppose the rule, while some of their competitors support it.
Because the rule was adopted in late December, it is eligible for repeal under the Congressional Review Act by a simple majority vote in each chamber and presidential signature. Neither a Senate filibuster nor other procedural hurdles can be used to block the vote. Should the measure pass, the Department of Energy would be precluded from re-adopting an equivalent rule in the future.
Moore's op-ed highlights how Congress can use the CRA to roll back regulations adopted at the end of the Biden Administration. But that is almost all the CRA is good for. More meaningful regulatory reform requires more meaningful legislative action.
Take the example highlighted in the headline for Moore's piece: Showers. In addition to energy efficiency standards for home appliances, such as natural gas instantaneous water heaters, the federal government also sets water efficiency standards, which cap the amount of water appliances can use. Relevant here. there is a federal standard limiting showerhead flow to 2.5 gallons per minute -- but this is not a mere regulation. It is written into the U.S. Code.
The first Trump Administration sought to address low-flow showerheads through the regulatory process, but it was a bit of a farce. Rather than push for legislation to amend the relevant law, it issued a regulation allowing multiple showerheads on a single fixture to count separately. This approach was adopted because the executive branch has no authority to overwrite the statutory standard, but could play around with definitions to allow a bit of circumvention--in this case by allowing consumers to have two-headed showers, with each head satisfying the law. The rule allowed consumers to use more water, but did not do anything to increase water pressure (which tends to be the concern for those who do not like the existing rules), and was promptly rescinded by the Biden Administration.
The first Trump Administration's experience with federal standards for showerheads illustrates that the real reason those who care about showers should "call Congress"--and not simply to support a CRA resolution. Here, as is so often the case, the source of regulatory impositions is Congress, and the statutes it has enacted (and refused to revisit or revise).
Here's the bottom line: If you want different regulations for showerheads--either because you think market pricing of water is a better way to encourage efficiency or just like pounding water pressure in the shower--you need to get Congress to change the law.
