The U.S. Court of Appeals for the fifth Circuit has overturned a Department of Energy final rule from the Biden Administration relating to ovens, stoves and cooktops because the agency failed to follow notice and comment rulemaking procedures under the Administrative Procedure Act.

In this case, DOE initially tried to implement new efficiency standards for consumer cooking appliances through notice and comment rulemaking in 2023. The Department also proposed efficiency requirements that would have effectively banned gas stoves and ranges. This was the first time since enactment of the Energy Policy and Conservation Act that the Department had proposed efficiency standards for consumer kitchen appliances.

After what the court termed “a veritable avalanche of adverse comments from a variety of industry groups,” the Department abandoned both initiatives.

DOE then decided to bypass notice and comment altogether and instead promulgated a direct final rule that would have the force and effect of law before any comments could derail it. In the direct final rule, the Department set many of the same energy-efficiency requirements it had attempted earlier.

The direct final rule limited these requirements to “consumer conventional cooking products,” like ovens, stoves, and cooktops using a single metric: the maximum “Integrated Annual Energy Consumption,” or IAEC, standard. The lower the IAEC, the more efficient the appliance. The DFR also banned the use of linear power supplies to promote energy efficiency.

Linear power supply involves a single step to convert from AC to DC, while switching power supply involves a two-step process. Because of its two-step process, the latter requires more components than the former and is thus more mechanically complex. But switching power supplies consume less power than linear power supplies. So, to promote energy efficiency, the DOE decided to ban linear power supplies.

The court held that agencies may issue a direct final rule without notice and comment rulemaking only when the issue is truly noncontroversial. EPCA has specific procedures for issuing a direct final rule. DFRs are permitted only upon a joint statement by interested persons that show consensus among parties fairly representative of relevant points of view, such as manufacturers of covered products, states, and efficiency advocates. Further, DFRs would be published simultaneously with an identical notice of proposed rulemaking. The Department is expected to withdraw DFRs on receipt of one or more adverse public comments, assuming those comments may provide a reasonable basis for doubting the DFR’s legality. Finally, the Secretary has to proceed with the notice of proposed rulemaking if the DFR were withdrawn.

The court held that DOE failed to withdraw the direct final rule when numerous comments opposed the requirements and therefore the rule is invalid.