DOE:

Court tosses efficiency standard for decorative fireplaces

A federal court today threw out 2011 Department of Energy conservation standards for decorative fireplaces.

The U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 ruling, found DOE exceeded its authority when it sought to regulate the fireplaces under the Energy Policy and Conservation Act. The court vacated DOE's definition of a "vented hearth heater" and instructed to the agency to reconsider it.

Writing for the majority, Judge Janice Rogers Brown found the decorative heaters should have been exempted because they do not give off heat.

"We hold DOE's feet to a not-so-decorative fire," Brown wrote.

At issue in the case, brought by the Hearth, Patio & Barbecue Association and National Propane Gas Association, was DOE's classification of decorative fireplaces as "direct heating equipment."

Under the statute, DOE was authorized to require conservation measures for several classes of products. The law includes "direct heating equipment" and also has a catchall category that DOE could regulate if it satisfied a series of requirements. Those include whether the average household energy use by the products is likely to exceed 100 kilowatt-hours or British thermal unit equivalent per year. DOE also has to prove that energy efficiency technologies are feasible for the goods.

When DOE issued its draft rule in 2009, the department said the definition of the added product, a "vented hearth heater," must give off heat. It changed course in the final rule, however, sweeping decorative heaters into that vented hearth heater category. DOE said all the products are designed to create heat, "however small that may be, to the surrounding living space."

That, wrote Brown in a often cheeky opinion, was a stretch.

"Because decorative products are designed to stay cool and look pretty -- not efficiently convert energy to heat -- their manufacturers would most certainly struggle to comply" with the the law, Brown wrote.

The ruling is likely to anger environmentalists. The Natural Resources Defense Council intervened in the case on behalf of DOE.

Senior Judge A. Raymond Randolph dissented from the majority. He argued that there is a fundamental problem with the majority opinion, specifically that "the Energy Department did not in fact regulate purely decorative fireplaces."

Specifically, Randolph argues that DOE did, in fact, exempt the decorative fireplaces in question, though that occurred after they were swept into the definition of vented hearth heaters.

"The Energy Department exempted primarily or purely decorative fireplaces from energy-conservation standards," Randolph wrote. "It is true that it did this by including these products in a broad definition [of direct heating equipment] and then exempting them from the energy-conservation standards otherwise applicable to direct heating equipment. I see no principled objection to this regulatory technique, and the majority opinion offers none."

Click here to read the opinion.