OVERNIGHT ENERGY: Energy Department proposes showerhead standards rollback after Trump complaints | Interior memo scaling back bird protections is ‘contrary to law,’ court rules | Former EPA chiefs call for agency ‘reset’

HAPPY WEDNESDAY! Welcome to Overnight Energy, The Hill’s roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at rbeitsch@digital-release.thehill.com. Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at rfrazin@digital-release.thehill.com or follow her on Twitter: @RachelFrazin.

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GO WITH THE FLOW: The Trump administration is moving to loosen environmental standards for showerheads following a string of public complaints from the president about low-flow fixtures designed to save water.

A new proposal from the Department of Energy (DOE) would change the definition of a showerhead, essentially allowing different components within the device to count as individual fixtures, sidestepping requirements that allow no more than 2.5 gallons to flow through per minute.

“If adopted, this rule would undo the action of the previous Administration and return to Congressional intent, allowing Americans-not Washington bureaucrats–to choose what kind of showerheads they have in their homes,” DOE spokeswoman Shaylyn Haynes said in an email to The Hill.

The move drew swift criticism from consumer groups.

“There is absolutely no need to change current showerhead standards,” David Friedman, vice president of advocacy at Consumer Reports and a former DOE official during the Obama administration, said in a statement.

“Thanks to the standards, consumers have access to showerheads that not only score well on [Consumer Reports] tests and achieve high levels of customer satisfaction, but also save consumers money by reducing energy and water consumption.”

President Trump has repeatedly brought up his distaste for energy-efficient showerheads, toilets, and even light bulbs and dishwashers.

“Showerheads — you take a shower, the water doesn’t come out. You want to wash your hands, the water doesn’t come out. So what do you do? You just stand there longer or you take a shower longer? Because my hair — I don’t know about you, but it has to be perfect. Perfect,” he said to laughter at an event in July on rolling back regulations.

In December, he said, “people are flushing toilets 10 times, 15 times.”

While Trump’s comments have been mocked on late night TV shows, communities in water-scare areas, particularly in the West, rely on low-flow fixtures to preserve their water supply.

Residents of other parts of the country benefit financially from the standards through lower water bills and reduced costs tied to water heaters.

Roughly three-quarters of showerheads on the market use 20 percent less than the maximum allowed under law, and some highly rated fixtures use as little as 70 percent of the flow allowed under law.

Read more about the proposed showerhead standards here. 

MUCH TWEETED NEWS: A U.S. district court struck down the legal opinion used to justify the Trump administration’s coming rollback of protections for migratory birds late Monday, writing that the Department of the Interior memo was “contrary to law.”

The Migratory Bird Treaty Act (MBTA) has for over 100 years offered protections to 1,000 different types of birds, instigating penalties for companies whose projects or infrastructure harm them.

But a 2017 legal opinion from now-Interior Solicitor Daniel Jorjani advised punishing the oil and gas industry, construction companies and others only if their work intentionally kills birds, ending the practice of punishing companies that “incidentally” do so.

A decision from U.S. District Judge Valerie Caproni that begins with a quote from “To Kill A Mockingbird” says that “the Jorjani opinion’s interpretation runs counter to the purpose of the MBTA to protect migratory bird populations.”

“The opinion freezes the MBTA in time as a hunting-regulation statute, preventing it from addressing modern threats to migrating bird populations,” Caproni wrote in a decision vacating the opinion, calling it “an unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing protected birds.”

In his opinion, Jorjani wrote that applying the law to “accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.”

The decision from the U.S District Court for the Southern District of New York was welcome news to environmentalists, who say Interior has lost the key legal basis for regulations set to mirror those laid out in Jorjani’s proposal.

“It makes it pretty hard for them to move forward with that rule,” said Noah Greenwald, endangered species director at the Center for Biological Diversity, one of the groups that sued over the opinion.

“We’re elated to see this terrible opinion overturned at a time when scientists are warning that we’ve lost as many as 3 billion birds [in North America] in the last 50 years,” he added. “To relax rules, to have the unhampered killing or birds didn’t make any sense was terrible and cruel really.”

Greenwald said the Jorjani opinion would have left companies responsible only for unlikely direct killings as opposed to negligence. He cited the oil industry in particular, arguing it should be held responsible when birds drown in uncovered waste ponds or during an oil spill.

Interior criticized the court’s decision, saying it “undermines a common sense interpretation of the law and runs contrary to recent efforts, shared across the political spectrum, to de-criminalize unintentional conduct.”

Read more about the court’s decision here.

HIT THE RESET BUTTON: Six former Environmental Protection Agency (EPA) administrators from both Democratic and Republican administrations are calling for a “reset” at the agency, prompting pushback from the Trump administration.

Former administrators Lee Thomas, William Reilly, Carol Browner, Christine Todd Whitman, Lisa Jackson and Gina McCarthy were critical of the current administration but voiced optimism about the EPA’s future in an open letter published Wednesday.

“As EPA approaches its 50th anniversary this December, we believe the time has come to reset the future course for EPA in a new, forward-looking direction to address the environmental challenges we face today and those that lie ahead,” they wrote. 

“While we are concerned about the current state of affairs at EPA, we are hopeful for the agency’s future,” they added. “Capable and talented staff are ready to answer the call. They have labored in good faith across administrations of both parties to fulfill EPA’s mission by following the law, applying the best available science, and displaying openness and transparency with the public.”

In the letter, they endorsed the broad goals of new recommendations for the agency from the Environmental Protection Network, a group of hundreds of former agency employees, which also calls for “resetting the course” of the agency. 

These goals include conducting analyses “free from political interference,” resolving inequitable environmental conditions faced by disadvantaged communities and prioritizing actions that provide the greatest health benefits to the most people.

The agency rejected the calls for a reset in a statement to The Hill. 

“EPA Administrator [Andrew] Wheeler is proud of our record addressing environmental problems impacting Americans, including delisting Superfund sites that have lingered for years,” said spokesperson James Hewitt. 

“He won’t be taking ‘reset’ advice from administrators who ignored the Flint lead crisis, botched the Gold King Mine response, and encouraged New Yorkers to [breathe] contaminated air at Ground Zero,” Hewitt added. 

Read more about the letter here.

EMINENTLY QUOTABLE: 

President Trump on Tuesday went after newly announced Democratic vice presidential candidate Kamala Harris’s opposition to oil and gas fracking. 

“She is against fracking,” he said of the California senator during a press briefing. “I mean how do you do that and go into Pennsylvania or Ohio or Oklahoma or the great state of Texas. She’s against fracking. Fracking’s a big deal.”

While running for the presidential nomination, Harris said last year that there’s “no question” she’s in favor of banning fracking, saying she would start with “what we can do on day one around public lands, and then there has to be legislation.”

Presumptive Democratic nominee Joe Biden opposes an outright fracking ban, but does want to stop new fracking on public lands.

Biden, meanwhile, praised his running mate’s environmental record on Wednesday.

He said in during a Delaware campaign event that Harris “took on big oil when it wanted to pollute without consequences” as attorney general of California. 

OUTSIDE THE BELTWAY:

Xcel Energy unveils $100 million plan to drive more electric transportation, The Denver Post reports

Boris Johnson poised to stop UK funding overseas fossil fuel projects, The Guardian reports

Ohio coal giant Murray Energy is $100K dark money donor ‘Company B’ in federal probe, The Columbus Dispatch reports

Big oil loses bid to rehear California cities’ climate cases, Bloomberg Law reports

Wisconsin Natural Resources Board delays PFAS rule in response to industry objections, the Wisconsin State Journal reports

ICYMI: Stories from Wednesday (and Tuesday night)…

Former EPA chiefs call for agency ‘reset’

Interior memo scaling back bird protections is ‘contrary to law,‘ court rules

Energy Department proposes showerhead standards rollback after Trump complaints

FROM THE HILL’S OPINION PAGES:

Turkey’s search for oil may spill over into conflict with Greece, writes Simon Henderson, the director of the Bernstein Program on Gulf and Energy Policy at the Washington Institute for Near East Policy.