The Fantastical Showerhead Executive Order

A simple and quite symbolic presidential decree that symbolizes quite a bit, but accomplishes very little.

President Trump issued a flurry of additional executive orders and presidential memoranda this week, many of which concerned regulatory policy. One EO in particular, "Maintaining Acceptable Water Pressure in Showerheads," symbolizes much of what we are seeing from the early stages of Trump's second term. The EO sends a message, but might not quite do what the President wants or what you might think (and has been characterized inaccurately by early media reports). It also highlights how the White House continues to make policy pronouncements that agency officials (attorneys in particular) will have to figure out how to implement.

Let's start with the title. The EO promises to increase or maintain shower water pressure, but it will not do that. The EO itself does not rescind the federal requirement limiting showerhead flow to 2.5 gallons per minute. This is because this limit is written into the U.S. Code (as the White House Fact Sheet acknowledges). If you are someone who wants a torrent of water beating down on you for your morning shower, this EO does not offer any relief from federal law.

What, then, does the showerhead EO do? It rescinds a regulatory definition of showerhead that had the primary effect of defining multi-nozzle showers as a single showerhead for purposes of the rule. The first Trump Administration did the same thing, but it was undone in the Biden Administration. The text of the EO makes all of this clear.

Section 1.  Purpose.  Overregulation chokes the American economy and stifles personal freedom.  A small but meaningful example is the Obama-Biden war on showers:  Twice in the last 12 years, those administrations promulgated multi-thousand-word regulations defining the word "showerhead."  See Energy Conservation Program:  Definition of Showerhead, 86 Fed. Reg. 71797 (December 20, 2021); Energy Conservation Program for Consumer Products and Certain Commercial and Industrial Equipment:  Test Procedures for Showerheads, Faucets, Water Closets, Urinals, and Commercial Prerinse Spray Valves, 78 Fed. Reg. 62970 (October 23, 2013).  To the extent any definition is necessary for this common piece of hardware, the Oxford English Dictionary defines "showerhead" in one short sentence.

Sec. 2.  Ordering the Repeal of the 13,000-Word Regulation Defining "Showerhead".  I hereby direct the Secretary of Energy to publish in the Federal Register a notice rescinding Energy Conservation Program:  Definition of Showerhead, 86 Fed. Reg. 71797 (December 20, 2021), including the definition of "showerhead" codified at 10 C.F.R. 430.2.

Those who don't bother to pay attention to the details may cheer or condemn the EO, but it really will not do much. Indeed, even if the EO were capable of rescinding the federal limit on showerhead water flow, it is not clear it would have much effect on water use. To the contrary, there is empirical evidence that reducing showerhead water flow can increase water consumption because it causes some people to take longer showers. Among other things, they can can lengthen the time it takes for water to get up to temperature and cause people to rinse for longer periods. So, if we want more water flow, that is a job for Congress, and if we want to conserve water, we would be better off with market pricing.

A particularly striking feature of the EO for us administrative law types is how it instructs the Energy Secretary to implement the President's demand.

Notice and comment is unnecessary because I am ordering the repeal.  The rescission shall be effective 30 days from the date of publication of the notice.

At one level, this is a breath-taking assertion of presidential authority--and one that will almost certainly be rejected by the courts. While the President is not an agency for purposes of the Administrative Procedure Act, a Presidential order does not insulate executive branch officials from complying with the APA's requirements. The rescission of a regulation is not exempt from the APA's procedural requirement, nor is a presidential decree, by itself, enough to constitute "good cause" for avoiding those requirements.

Does this mean rescinding the Obama-Biden showerhead definition will have to go through notice and comment? Not necessarily. While there is no mention of it in the EO or the White House Fact Sheet, the Department of Energy may have a way to quickly rescind the rule: Declare the definition to be no more than a non-binding "interpretative rule" exempt from the notice-and-comment requirements of Section 553 of the APA.  After all, the definition is, at its core, an official interpretation of a statutory term and need not be understood to impose any sort of legal obligation. Insofar as the definition is relied upon for the implementation and enforcement of other, substantive rules--such as those setting forth the water-flow testing requirements for showerheads--this could get sticky, but I suspect attorneys within the Energy Department could use this route to quickly eliminate this regulation from the books.

In the end we have an EO that is more bluster than substance. It will do very little to change most people's shower routine, and insofar as it is actually implemented, it is unlikely to be through the route the President directs, but it may be possible to execute quickly if the agency lawyers do their jobs. In these respects, it may be symbolic of the Trump Administration's deregulatory efforts overall.

* * *

Note: For those seeking to keep track, here is a link to President Trump's EOs that have been published in the Federal Register. Note that it typically takes a few days before new EOs are published, so this listing is sometimes a few days behind. (For example, at the time this is posted, the showerhead EO is not yet included.)