Clark R. Silcox, General Counsel, NEMA

It appears popular these days to assert the Trump Administration is “rolling back” regulations and returning the country to a by-gone era.  We do not write to weigh in on that assertion writ large, but to rebut specifically the “roll back” characterization as it applies to light bulb regulation by the Department of Energy (DOE) as presented by our colleagues in the energy efficiency community in the April 30, 2019 edition of The Hill.  The characterization does not fit here.

To set the tone for why we are confident that a pending DOE proposal to fix a serious legal error about its January 2017 light bulb rule is not a “roll back,” we invoke President John Adams’ statement that no one in Congress should dispute, describing our republic as “a government of laws, not men.”  Congress wrote a law in 2007 governing light bulb regulation and ten years later the Department of Energy did not follow it.  This is not a problem that is unique to any one political administration, and we reject politicizing this issue.  And our point:  the government cannot illegally “roll back” something from a place they could not legally stand upon in the first place.  Common sense.

What are we talking about?

In 2007, due to a then very recent technology innovation, Congress had the opportunity to legislate improvements in the energy use of the Standard light bulb called the general service incandescent lamp.  All consumers are familiar with the pear-shape and traditional uses of that light bulb.  Those improvements became mandatory in 2012.  Looking to the future, Congress also recognized a broader class of light bulbs called “general service lamps” that include not only the general service incandescent bulb, but a spiral bulb (sometimes enclosed in a Standard pear-shape bulb) known as a compact fluorescent lamp and a light bulb that no one had even produced yet and no one in 2007 knew if it would ever be commercialized --- the general service light-emitting diode (LED) lamp.  And when Congress defined the general service lamp it identified a laundry list of light bulbs with special shapes and uses that Congress explicitly stated were “not included” in that definition:  decorative light bulbs used in candelabra and other decorative fixtures and bathroom and theater vanity mirrors, downlight reflector bulbs used in recessed fixtures and track lights, bug lights, colored lights, heat lamps, and a variety of other special purpose light bulbs.

Again looking to the future, Congress authorized the DOE to determine in a rulemaking whether the energy use of the Standard incandescent bulb and the compact fluorescent bulb could be improved and whether Standards for the general service LED bulb (if the product existed) should be adopted.  This authorization did not include applying energy conservation Standards applicable to these general service bulbs to special purpose bulbs such as reflector bulbs or decorative bulbs used in candelabra and other decorative fixtures or appliance bulbs because Congress explicitly stated that they were not general service lamps. And Congress regulated many of those bulbs separately.

In the 2007 law Congress had one other request for DOE in this rulemaking: to determine whether certain incandescent lamps that were exempt from energy efficiency regulation should have their exemptions maintained or discontinued? And that is where the DOE’s 2017 rule went off the track and we became a government of men, not laws over this issue.  DOE erroneously read this request to consider discontinuing exemptions for certain incandescent lamps as an opportunity to regulate --- in this same rulemaking ---incandescent lamps that were not “exempt” because they were already regulated by Congress and DOE:  lamps with special shapes such as incandescent reflector bulbs and decorative candelabra base and intermediate base incandescent bulbs.  The government cannot maintain or discontinue a regulatory exemption for a product that is not exempt from regulation.  Again, common sense.

DOE has authority to regulate these particular non-exempt lamps in separate rulemakings under different requirements set by Congress, but not in the pending light bulb rulemaking.  Congress did not authorize DOE to define these bulbs with special shapes and applications as general service lamps and regulate them as such.

What our colleagues in the energy efficiency community want the DOE to do is to disregard the clear text of the law that Congress wrote in 2007 and perpetuate the illegal regulation adopted in 2017.  “It is not improper for an agency to engage in new rulemaking to supersede a defective rulemaking,” said the D.C. Circuit Court of Appeals in 1984.  And that is what is happening at the DOE right now over light bulbs.

And we are not losing the battle for energy efficiency in lighting either.  We are winning. Here are some facts (including estimates) about the lighting market revolution that is occurring as we write:

• In 2001, American consumers bought almost 1.5 billion Standard incandescent light bulbs. Those sales peaked in 2003 and have been steadily declining since then so that by 2018 sales of the Standard incandescent light bulb represent about 17% of the 2001 shipments.
• After nearly 15 years of trying to gain any significant market share from the Standard incandescent bulb, the more efficient compact fluorescent bulb finally saw sales suddenly surge in 2007 to over 300 million per year, a sales level that was maintained through 2014. Despite its efficiency, the CFL was not wildly popular with consumers and resulted in slow consumer adoption.  But its longer life in sockets accelerated the decline of the Standard incandescent bulb.  Now the CFL is rapidly declining in sales along with the general service incandescent lamp.
• In contrast, the general service LED bulb, introduced to the market in 2012 at a price of $60 per bulb, was rapidly adopted by consumers and in the third quarter of 2017, sales of the general service LED bulb exceeded both the CFL and general service incandescent bulb for the first time and its share has continued to grow. The longer life of the LED bulb in sockets is accelerating the decline of both general service incandescent lamps and CFLs as the latter two bulb types are removed from sockets.  While initial LED options were expensive the growing demand for LED lamps over the past several years has resulted in consumers having a wide variety of options at pocketbook friendly prices to choose from today.
• The National Electrical Manufacturers Association (NEMA) estimates that by the end of 2019, approximately 80-84% of general service lamp sockets are occupied by energy efficient general service CFLs and LEDs. Roughly 16-20% of these sockets are occupied by halogen incandescent lamps.
• The 2007 law set an average efficacy goal for general service lamps of 45 lumens per watt by 2020, and the data described above lead to an estimate that we have already exceeded that by a wide margin as the country is nearing 70 lumens per watt. If the goal was not met, the Secretary had the authority to ban the Standard incandescent lamp.

These trends are not rolling back.  They are continuing.  And the trends for the bulbs with other shapes and applications are in the same direction.

• In 2018, shipments of LED reflector lamps surpassed shipments of incandescent reflector lamps for the first time and are now the dominant technology in that category.
• For the decorative bulbs, the share of LED versions surged for the first time in 2018 and they now represent about 37% of that category.
• Not all LED specialty bulbs are suitable for or perfect replacements for incandescent specialty bulbs. Small LED appliance bulbs are not appropriate in ovens, and LED candelabra bulbs require some electronics that make them larger than the similar incandescent bulb presenting aesthetics issues for some consumers.  These issues are being worked on, but avoiding consumer dissatisfaction is important to avoid the consumer satisfaction problems that CFLs presented when introduced to the market.
• In the commercial and industrial markets, businesses are realizing the benefits of reducing their electricity bills and shipments of different types of incandescent and fluorescent bulbs used in commercial settings have declined in favor of LED as well.

The idea that we are returning to some by-gone era is nonsense.  Yes, there is still a little way more to go to this lighting market transformation, but this is not the “nightmare” nor is it as “bad economically” that some of our colleagues in the energy efficiency community are portraying.  We are well past the tipping point for energy efficient lighting that will not be rolled back.  In closing, we return to President John Adams, who famously said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”   The facts demonstrate that the American consumer, lighting manufacturers and retailers have all moved forward in support of lighting efficiency, the country has exceeded Congress’ statutory efficacy goal for general service lighting, and DOE’s proposal to follow the rule of law will not change that.