Month: April 2025

A new Executive Order entitled “Maintaining Acceptable Water Pressure in Showerheads” (the “EO”) was released on April 9, 2025. https://www.whitehouse.gov/presidential-actions/2025/04/maintaining-acceptable-water-pressure-in-showerheads/

Ostensibly, the President was directing policy to address what he perceives to be over regulation of a part of our lives, and in this instance, the specific source of frustration is the belief that showerheads are over-regulated.

As readers are likely aware, for the last few decades, various pieces of equipment that we use in our homes and our commercial endeavors have been the subject of regulation at the Federal and State levels. While I was not there, my sense of these regulations is that they were focused on improving the efficiency of and thereby reducing the use of energy to power various types of machinery – the goal being, if the equipment is more efficient, then less power will be consumed in delivering the services sought by the piece of equipment (e.g., lights, boilers, HVAC, etc.).

These various levels of required efficiency are codified at 42 US Code 6295. If interested in the source material – https://uscode.house.gov/view.xhtml?req=granuleid:USC-2000-title42-section6295&num=0&edition=2000

Standards for showerheads and faucets:

(1) The maximum water use allowed for any showerhead manufactured after January 1, 1994, is 2.5 gallons per minute when measured at a flowing water pressure of 80 pounds per square inch. Any such showerhead shall also meet the requirements of ASME/ANSI A112.18.1M–1989, 7.4.3(a).

(2) The maximum water use allowed for any of the following faucets manufactured after January 1, 1994, when measured at a flowing water pressure of 80 pounds per square inch, is as follows:

Lavatory faucets	2.5 gallons per minute
Lavatory replacement aerators	2.5 gallons per minute
Kitchen faucets	2.5 gallons per minute
Kitchen replacement aerators	2.5 gallons per minute
Metering faucets	0.25 gallons per cycle

The EO indicates, as many would agree, that overregulation chokes the American economy…”. Furthermore, many might agree that the above mandates might be a bit over zealous and that their shower pressure has been diminished due to the required maximum water usage rates stated above.

Given this, shall we say, “pressure”, the President felt compelled to order the repeal of the Energy Conservation Program located at 10 C.F. R. 430.2 – meaning the above standards that apply to household and business items like light bulbs, boilers, HVAC equipment, refrigerators, micro waves, etc. In fact the EO contains language that “notice and comment is unnecessary because I [being the President] am ordering the repeal.” [bracketed language added]. I hereby direct the Secretary of Energy to publish in the Federal Register a notice rescinding Energy Conservation Program…”.

As one commentator, Jonathan Adler, noted, “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.” Moreover, he points out that the President’s assertion of authority “to repeal the regulation is a breath-taking assertion of presidential authority — and one that will almost certainly be rejected by the courts.”

Green Spouts: I find this EO a bit curious in that it will be very unlikely to change behavior at the home or business level given that showerheads have already been installed at our homes and businesses and, given human nature, it is unlikely (if I project my approach on my readers) that homeowners and business owners will remove existing fully functional showerheads or toilets or light bulbs or other equipment to potentially get better/stronger water flow or a different color of light, merely because an EO says so; especially prior to the piece of equipment needing repair or replacement. That said, before a homeowner or business owner looks to change its lights, HVAC, boiler, or indeed its showerhead, it is likely that the homeowner/business owner will look to analyze the cost that will be incurred once the replacement equipment is put into operation – (i.e., the operational cost of the new equipment). If the user is shown that the replacement equipment with the better water flow or more beautiful light will cost her/him more money over the course of use then it is unlikely (albeit possible) that the user will switch back to a more heavy user or less efficient source of energy or, in this case, water. Convenience is indeed relevant to the decision, but so to is the economic implication of our actions on ourselves, our pocketbooks and on society writ large.

Duane Morris has an active Sustainability and Risk Mitigation Team to help organizations and individuals plan, respond to, and execute on your Sustainability and Risk Mitigation planning and initiatives. For more information, please contact Brad A. Molotsky, David Amerikaner, Sheila Rafferty-Wiggins, Jeff Hamera, Jolie-Anne Ansley, Robert Montejo, or the attorney in the firm with whom you are regularly in contact.

On April 8th, the White House issued its latest pronouncement against climate change in one of its latest Executive Orders entitled “Protecting American Energy From State Overreach” – https://www.whitehouse.gov/presidential-actions/2025/04/protecting-american-energy-from-state-overreach/ (the “Order”).

Key Provisions of the Executive Order:

• Challenging State Climate Policies:

The Order directs the Attorney General and the heads of all federal agencies to identify and challenge all state and local laws that burden the identification, development, siting, production or use of domestic energy resources that are or may be unconstitutional, preempted by Federal law or otherwise are unenforceable.

• Promoting Fossil Fuel Production:

The Order emphasizes the importance of domestic energy resources, particularly oil, natural gas, coal, and other fossil fuels and focuses on the supposed discrimination of out of state fossil fuel energy producers.

• Reviewing Regulations:

The Order directs the Attorney General and all heads of federal agencies, including the Environmental Protection Agency (EPA), to review and identify and potentially rescind any state law purporting to address “climate change” or involving “environmental, social and governance” initiatives, “environmental justice”, “carbon or greenhouse gas” emissions and funds to collect carbon penalties or carbon taxes.

Timing:

Within 60 days of the April 8th (i.e., July 9, 2025), the Attorney General is directed to provide a report to the President regarding actions that should be taken to achieve the above stated objective and to recommend any additional Presidential or legislative action necessary to “stop the enforcement of State laws identified above that the Attorney General determines to be illegal or otherwise fulfill the purpose of the order“.

Impact on State and Local Climate Policies:

The Order is very likely to lead to federal legal challenges against state and local climate change policies, which seek to weaken efforts to reduce greenhouse gas emissions and combat climate change. States with these types of laws are very likely to respond and challenge the Order as being beyond the scope of what is legally permissible by Presidential executive orders. As such, the legality of the order is very likely to find its way into court and will take some months to sort out.

Theory of the Order:

The Order asserts that certain state and local laws and civil actions have exceeded constitutional limits and/or conflict with federal policy by directly “restricting the development, production, or use of domestic energy resources”.

The Order is broad in its scope but focuses specifically as well on New York’s, Vermont’s and California’s laws in the climate change area, many of which we have commented on in earlier posts if of interest.

In short, New York is following California’s lead in seeking to require companies to review and disclose certain risk factors of climate impacts on companies with over $500 Million of revenue and in requiring Scope 1, 2 and 3 emissions reporting if an enterprises makes more than $1 Billion in revenue. Vermont has passed a law which New York, California, New Jersey and Illinois are also considering that targets fossil fuel emitters and requires that such emitters pay for the damage that they have done in the applicable state. Cash payments from the historic emitters are then specifically designated to help pay for resiliency improvements to infrastructure in the applicable state. The Order also calls out California’s emissions caps and carbon credit trading system, which are described as penalizing fossil fuel companies for carbon use.

According to the Order, these laws and policies create barriers to interstate commerce, raise energy costs nationally, and interfere with the federal government’s role in enacting and implementing a federal energy agenda.

Green Spouts: While it was always expected that parties like the US Chamber of Commerce (who sued California for implementing SB 261 and 253) would also attempt to block Illinois, New York, New Jersey and Maryland from enacting climate disclosure requirements, I find it a bit surprising that the Trump Administration has decided to weigh in and enact a new Executive Order focusing on State rights and climate disclosure at this moment given what else is going on around the globe. Moreover, given the District Court’s ruling in the California case, it appears that if similar laws are passed in Illinois and elsewhere, that the constitutional challenges raised by the Order are not likely to withstand court scrutiny. This author’s view is that the various states will not back off of their own version of California’s climate bill, Vermont’s superfund type bill and California’s cap and trade regime and will fight the April 8th Executive Order tooth and nail.

Duane Morris has an active Sustainability and Risk Mitigation Team to help organizations and individuals plan, respond to, and execute on your Sustainability and Risk Mitigation planning and initiatives. For more information, please contact Brad A. Molotsky, David Amerikaner, Sheila Rafferty-Wiggins, Jeff Hamera, Jolie-Anne Ansley, Robert Montejo, or the attorney in the firm with whom you are regularly in contact.