Nine appliance rules took DOE's shortcut in fourteen months
A Fifth Circuit ruling on one appliance rule turns on a mandatory off-switch DOE never pulled: one of nine standards set the same way, with DOE's own reasoning laid out across two documents.
Nine. That is how many times, in the fourteen months from April 2023 to May 2024, the Department of Energy used the same rulemaking shortcut to set an appliance efficiency standard. On August 11, the Fifth Circuit ruled that DOE broke the law on one of the nine, a rule for cooking products. The court denied DOE’s motion to dismiss, granted the states’ petition for review, and remanded the case.
The lane is called a direct final rule. Congress created it in 2007. It starts with a joint statement, submitted by parties DOE finds “fairly representative of relevant points of view,” recommending a standard. DOE can adopt that recommendation immediately and publish it as final. The public comment period, at least 110 days of it, comes afterward instead of before.
If DOE then receives an adverse comment and determines it may provide a reasonable basis for withdrawal, the statute says the Secretary “shall withdraw the direct final rule.” That determination is DOE’s own call, mandatory once triggered, not automatic. The court later called the lane itself a mechanism “designed for consensus rulemaking”.
Nine standards went through that lane in fourteen months. All nine were followed by a confirmation notice, never a withdrawal. On the cooking-products rule, DOE recorded that it “did receive adverse comments.” The Fifth Circuit’s holding is narrow: DOE misread its own reasonable-basis standard on that rule. It is not a ruling that appliance standards are illegal, or that DOE’s other standards are in danger — only that on this one, DOE’s reading of its own off-switch fell short by law.
Nine rules took the same shortcut in fourteen months, and none came back
Every one of the nine follows the same shape: a direct final rule, then months later a confirmation notice instead. The statute gives DOE 120 days to withdraw a rule, just ten days after comments close. DOE’s own confirmation notices arrived anywhere from 133 to 220 days after their rules, cooking products among them at 180. The statute sets no deadline for a confirmation, only for a withdrawal, so this is not a missed deadline. In every one of the nine, the confirmation notice arrived after that 120-day withdrawal window had already closed.
| Standard | Direct final rule | Confirmed | Days | Disposition |
|---|---|---|---|---|
| Air Cleaners | 2023-04-11 | 2023-08-31 | 142 | Confirmed, no withdrawal |
| Electric Motors | 2023-06-01 | 2023-10-20 | 141 | Confirmed, no withdrawal |
| Refrigerators, Refrigerator-Freezers & Freezers | 2024-01-17 | 2024-06-13 | 148 | Confirmed, no withdrawal |
| Consumer Conventional Cooking Products | 2024-02-14 | 2024-08-12 | 180 | Confirmed, no withdrawal |
| Consumer Clothes Dryers | 2024-03-12 | 2024-10-08 | 210 | Confirmed, no withdrawal |
| Residential Clothes Washers | 2024-03-15 | 2024-10-21 | 220 | Confirmed, no withdrawal |
| Dishwashers | 2024-04-24 | 2024-10-17 | 176 | Confirmed, no withdrawal |
| Miscellaneous Refrigeration Products | 2024-05-07 | 2024-09-30 | 146 | Confirmed, no withdrawal |
| Air-Cooled Commercial Package Air Conditioners & Heat Pumps | 2024-05-20 | 2024-09-30 | 133 | Confirmed, no withdrawal |
One more document looks like a tenth withdrawal, and is not. A November 2024 DOE notice proposes to confirm eliminating a faster “short-cycle” product class for dishwashers, clothes washers and clothes dryers. That traces to a different rulemaking: a 2022 rule and an earlier, separate Fifth Circuit remand in Louisiana v. DOE, decided January 8, 2024, not any of the nine direct final rules above.
What DOE published, and what DOE argued in court
DOE’s own conclusion, in its confirmation notice, is one sentence: the comments “do not provide a reasonable basis for withdrawing” the rule. That notice, published in August 2024, never uses the word “rebut.” It uses the phrase “reasonable basis” fourteen times. Its own account of the standard it applied: “the substance of the comments, not the number of stakeholders that submit statements in favor of, or opposed to, the joint agreement, that determines whether a rule should be withdrawn.” DOE cites that standard, not the volume of adverse comments, as the reason the rule stood.
The word “rebut” comes from somewhere else. DOE’s brief to the Fifth Circuit argued that commenters had to “rebut [the] data before the agency” and prove the rule unlawful before withdrawal could be triggered. The court rejected that reading. It held that the states only needed to lodge adverse comments, contesting the rule in good faith, not prove the rule unlawful — the higher standard DOE’s own brief had argued for, and one that appears nowhere in DOE’s confirmation notice.
On reliability, one objection DOE weighed, the notice cites no named survey. What it cites is the Association of Home Appliance Manufacturers and the Appliance Standards Awareness Project’s coalition of consumer and environmental groups, saying the standard would not hurt reliability, plus DOE’s own repair-cost analysis of outside consumer-testing data from the rule itself. Its conclusion: “no indication that higher-efficiency products are less reliable at the adopted standard levels.”
$3.09, and the number it can’t be compared to
One figure in the record is $3.09. That is the American Public Gas Association’s own characterization, recited by the court in a footnote, of what the rule saves a consumer: $3.09 spread across a product’s 14.5-year life, or .06 cents a day. It is not DOE’s number, and it is not the court’s finding. It is the court quoting what one trade group said DOE’s math worked out to.
DOE’s own figures are a different kind of number. Under the rule, DOE estimated $0.65 billion in net present value to consumers at a 7-percent discount rate, and 0.22 quads of energy saved nationally. Neither number settles anything against the $3.09 figure. The number that would resolve the comparison, DOE’s own per-consumer lifetime savings, is published inside the rule as an image rather than machine-readable text. The two figures were never placed side by side.
Everything the ruling didn’t decide is still moving
The ruling sets aside one rule, not nine. The court granted the petition to “set aside” the cooking-products standard under 5 U.S.C. § 706(2)(D) and sent it back to DOE. It did not rule on the other standards DOE set through the same lane, and no court has been asked to. Compliance dates for the rest still stand:
- Air cleaners: due December 31, 2023
- Dishwashers: due April 23, 2027
- Clothes dryers: due March 1, 2028
- Residential clothes washers: due March 1, 2028
- Refrigerators: due January 31, 2029, or January 31, 2030, depending on product class
- Cooking products: due January 31, 2028, before the remand
The panel wasn’t unanimous on how it got there. Judge Haynes concurred only in part. She concurred in the result on jurisdiction, not the reasoning, and on the merits her own opinion never uses the majority’s “set aside” language — it states only that DOE should reconsider in light of the record already on appeal. She agreed with remanding the case, she wrote, “but only on that basis.”
Two of the nine already have a different question pending. DOE proposed, in May 2025, to withdraw the underlying determination that classifies air cleaners and miscellaneous refrigeration products as covered consumer products at all, a separate statutory mechanism from the withdrawal this ruling is about. Neither proposal has been finalized.
DOE has already put the mechanism itself back up for revision. On July 7, 2026, it proposed changes to the Process Rule that governs direct final rulemaking, a document that uses the phrase “direct final rule” thirty-three times and separately asks for comment on “considerations for direct final rules.” The withdrawal trigger’s proposed text is unchanged: still the same reasonable-basis standard the Fifth Circuit applied to the cooking-products rule. The public comment period on that proposal closed August 6, 2026.