Can DOE Regulate Water Use Without Congress?

In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione discuss John’s recent oral argument at the U.S. Court of Appeals for the Fifth Circuit in Word v. Department of Energy.Bill Word and David Daquin both own a dishwasher and a washing machine that they want to replace. The U.S. Department of Energy has imposed regulations in 2012 and 2024 illegally limiting how much water dishwashers and washing machines can use. The appliances Word and Daquin want to buy use more water than those regulations allow. But under the amended Energy Policy and Conservation Act of 1975, the Department of Energy can only regulate water use in “faucets, showerheads, water closets and urinals”.The conversation also explores a key procedural question: where regulated parties can seek meaningful relief when an agency repeatedly issues unlawful rules, and whether district courts must be able to issue injunctions to stop ultra vires agency action. Along the way, Mark and John reflect on the Fifth Circuit’s prior rulings, post-Loper Bright limits on agency power, and why congressional action—not bureaucratic improvisation—is the proper way to regulate.