I’ve written before about the U.S. Environmental Protection Agency’s (EPA) Energy Star program, which promotes investment in energy efficient products by providing information that consumers and investors can use to research and compare green product or project choices.

The EPA works with the U.S. Department of Energy (DOE) and manufacturers to award the ENERGY STAR certification to products that meet particular energy savings standards.  The EPA owns U.S. Certification Mark Registration No. 2,817,628 (energy-star-reg.JPG) for its ENERGY STAR design (pictured above).

Certification marks differ from ordinary trademarks in that they certify that goods or services meet certain quality or manufacturing standards instead of indicating the commercial source of a product.  Certification marks are owned by the organizations that set the standards and used by companies that meet the standards and earn the certifications.

The certifying organizations are responsible for formulating, administering and policing their certification standards.  Failing to do so can undermine the credibility and damage the reputation of the organization and its certification.

The EPA and DOE recently announced that they would expand testing and enforcement to strengthen the Energy Star program.  This comes as the program’s star has dimmed after publication of a study performed by Congressional auditors at the Government Accountability Office to test the program’s certification process (see NY Times article here).

The GAO auditors created fictitious companies and sought Energy Star status for some conventional and unconventional devices, submitting phony data purporting to show the products were energy efficient.  Among the study’s highlights (or lowlights, as it were):

most of the products, including a “gasoline-powered alarm clock” and an ”air purifier” consisting of a feather duster pasted on top of a space heater, were approved without challenge

some approvals were issued by an automated system without human review

once a company got approval for one product and became an Energy Star partner, the company could download the logo and paste it on products that had not been approved

As part of the overhaul, DOE recently began testing the six most commonly used appliances – freezers, refrigerator-freezers, clothes washers, dishwashers, water heaters and room air conditioners – and, with the EPA, is developing a system to test all products that earn the Energy Star label. 

In addition, DOE and EPA will require manufactureres to participate in an ongoing verification testing program to ensure continued compliance and are stepping up enforcement by taking action against manufacturers whose products do not comply with the requisite standards.

Like all certification marks and programs, the Energy Star brand is only as good as its administration and policing so let’s hope it regains its shine.

In a previous post, I wrote about the settlement agreement between the U.S. Department of Energy (DOE) and LG Electronics (LG) about certain LG refrigerator models that had received the ENERGY STAR certification despite not actually meeting the required efficiency standards.

As part of the agreement, LG engaged in certain remedial measures for consumers of the models at issue.  In addition, the agreement detailed how the refrigerator models were to be tested going forward. 

DOE adjusted the testing procedures for LG to take into account the peculiarities of the particular models at issue – so-called “French Door” models – that use more energy because they incorporate an ice maker within the fresh food compartment of the refrigerator. 

The fridges use a fill tube heater and an ice ejection heater to maintain the fresh food compartment above freezing temperatures while maintaining the ice making assembly below freezing temperatures.  LG was permitted to test the fridges with the ice maker disabled and the two heaters off. 

The agreement provided these exceptions were “for the purposes of testing under this Agreement subject to further notice by DOE.”

DOE subsequently determined that this test procedure exception resulted in underreporting of the energy consumption of the French Door refrigerator models.  So DOE revoked the exception provided in the agreement and demanded that LG remove the ENERGY STAR label from the models at issue.

Late last year LG sued DOE in federal court in Washington, DC requesting that the court issue an injunction to allow it to retain the ENERGY STAR label on its French Door refrigerators.  In a motion for preliminary injunction, LG argued that DOE’s actions violated the Administrative Procedure Act (APA), the Energy Policy and Conservation Act and LG’s due process rights.

Last month, the court denied LG’s motion.  In a Memorandum Opinion (lg_opinion.pdf), the court held that DOE did not violate the APA because the agreement did not represent a definitive interpretation of testing procedures but only a revocable exception to its procedures. 

The court further held that DOE’s justifications for revoking the agreement’s testing exception were not arbitrary and capricious.

As to LG’s due process claim, the court found that LG’s due process property interest was satisfied by its “post-deprivation suit for breach of contract.”  The court also held that being required to remove the ENERGY STAR certification from only certain refrigerators does not rise to the level of implicating a due process liberty interest.

Despite the setback, LG is maintaining its commitment to energy efficient refrigerators:  before the court decided its motion LG was already making French Door fridges that comply with the DOE’s certification requirements and will bear the ENERGY STAR label.