[Federal Register Volume 82, Number 63 (Tuesday, April 4, 2017)]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06519]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
Review of the Standards of Performance for Greenhouse Gas
Emissions From New, Modified, and Reconstructed Stationary Sources:
Electric Generating Units
AGENCY: Environmental Protection Agency (EPA).
ACTION: Announcement of review.
SUMMARY: The U.S. Environmental Protection Agency (EPA) announces that
it is reviewing and, if appropriate, will initiate proceedings to
suspend, revise or rescind the Standards of Performance for Greenhouse
Gas Emissions From New, Modified, and Reconstructed Stationary Sources:
Electric Generating Units.
DATES: April 4, 2017.
FOR FURTHER INFORMATION CONTACT: Mr. Peter Tsirigotis, Sector Policies
and Programs Division (D205-01), U.S. Environmental Protection Agency,
Research Triangle Park, NC 27711; telephone number: (888) 627-7764;
email address: [email protected].
SUPPLEMENTARY INFORMATION: By this notice, EPA announces it is
reviewing the Standards of Performance for Greenhouse Gas Emissions
From New, Modified, and Reconstructed Stationary Sources: Electric
Generating Units (New Source Rule), 80 FR 64510 (October 23, 2015) and,
if appropriate, will as soon as practicable and consistent with law,
initiate reconsideration proceedings to suspend, revise or rescind this
rule. The New Source Rule established national emission standards to
limit carbon dioxide emissions from new fossil fuel-fired power plants.
The New Source Rule was promulgated under the authority of Section
111 of the Clean Air Act. 42 U.S.C. 7411. That Section authorizes EPA
to issue nationally applicable New Source Performance Standards (NSPS)
limiting air pollution from ``new sources'' in source categories that
cause or contribute to air pollution that may reasonably be anticipated
to endanger public health or welfare. 42 U.S.C. Section 7411(b)(1).
Under this authority, EPA had long regulated new fossil fuel-fired
power plants to limit air pollution other than carbon dioxide,
including particulate matter (PM); nitrogen oxides (NOx) and sulfur
dioxide (SO2). See 40 CFR part 60 subparts D, Da. In the New
Source Rule, EPA for the first time used Section 111(b) to limit carbon
dioxide emissions from new power plants.
Due to concerns about EPA's legal authority and record, 24 States
and a number of other parties sought judicial review of the New Source
Rule in the U.S. Court of Appeals for the District of Columbia. State
of North Dakota v. EPA, No. 15-1381 (and consolidated cases) (D.C.
Cir.). The case has been fully briefed, and oral argument in the D.C.
Circuit is currently scheduled for April 17, 2017.
II. Initiation of Review of New Source Rule
On March 28, 2017, President Trump issued an Executive Order
establishing a national policy in favor of energy independence,
economic growth, and the rule of law. The purpose of that Executive
Order is to facilitate the development of U.S. energy resources and to
reduce unnecessary regulatory burdens associated with the development
of those resources. The President has directed agencies to review
existing regulations that potentially burden the development of
domestic energy resources, and appropriately suspend, revise, or
rescind regulations that unduly burden the development of U.S. energy
resources beyond what is necessary to protect the public interest or
otherwise comply with the law. The Executive Order also directs
agencies to take appropriate actions, to the extent permitted by law,
to promote clean air and clean water while also respecting the proper
roles of Congress and the States. The Executive Order specifically
directs EPA to review and, if appropriate, initiate reconsideration
proceedings to suspend, revise or rescind the New Source Rule.
Pursuant to the Executive Order, EPA is initiating its review of
the New Source Rule and providing advanced notice of forthcoming
rulemaking proceedings consistent with the President's policies. If
EPA's review concludes that suspension, revision or rescission of the
New Source Rule may be appropriate, EPA's review will be followed by a
rulemaking process that will be transparent, follow proper
administrative procedures, include appropriate engagement with the
public, employ sound science, and be firmly grounded in the law.
EPA's ability to revisit existing regulations is well-grounded in
the law. Specifically, the agency has inherent authority to reconsider
past decisions and to rescind or revise a decision to the extent
permitted by law when supported by a reasoned explanation. FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009) (``Fox''); Motor
Vehicle Manufacturers Ass'n of the United States, Inc., et al, v. State
Farm Mutual Automobile Insurance Co., et al, 463 U.S. 29, 42 (1983)
(``State Farm''). Moreover, the Clean Air Act itself authorizes EPA to
reconsider its rulemakings. 42 U.S.C. 7607(b)(1), (d)(7)(B). The Clean
Air Act complements the EPA's inherent authority to reconsider prior
rulemakings by providing the agency with broad authority to prescribe
regulations as necessary. 42 U.S.C. 7601(a). The authority to
reconsider prior decisions exists in part because EPA's interpretations
of statutes it administers ``are not carved in stone'' but must be
evaluated ``on a continuing basis,'' Chevron U.S.A. Inc. v. NRDC, Inc.,
467 U.S. 837, 857-58 (1984). This is true when--as is the case here--
review is undertaken ``in response to . . . a change in
administrations.'' National Cable & Telecommunications Ass'n v. Brand X
Internet Services, 545 U.S. 967, 981 (2005). Importantly, such a
revised decision need not be based upon a change of facts or
circumstances. Rather, a revised rulemaking based ``on a reevaluation
of which policy would be better in light of the facts'' is ``well
within an agency's discretion,'' and ``[a] change in administration
brought about by the people casting their votes is a perfectly
reasonable basis for an executive agency's reappraisal of the costs and
benefits of its programs and regulations.'' National Ass'n of Home
Builders v. EPA, 682 F.3d 1032, 1038 & 1043 (D.C. Cir. 2012) (citing
Fox, 556 U.S. at 514-15; quoting State Farm, 463 U.S. at 59 (Rehnquist,
J., concurring in part and dissenting in part)).
In conducting this review, EPA will follow each of the principles
and policies set forth in the Executive Order, consistent with EPA's
statutory authority. The Agency will reevaluate whether this Rule and
alternative approaches are appropriately grounded in EPA's statutory
authority and consistent with the rule of law. EPA will assess whether
this Rule or alternative approaches would appropriately promote
cooperative federalism and respect the authority and powers that are
reserved to the States. EPA will also examine whether this Rule or
alternative approaches effect the Administration's dual goals of
protecting public health and welfare while also supporting economic
growth and job creation. EPA will review whether this Rule or
alternative approaches appropriately maintain the diversity of reliable
energy resources and encourage the production of domestic energy
sources to achieve energy independence and security. Additionally, EPA
will assess this Rule and alternative approaches to determine whether
they will provide benefits that substantially exceed their costs. In
taking any actions subsequent to this review, EPA will use its
appropriated funds and agency resources wisely by firmly grounding in
the statute its actions to protect public health and welfare.
Dated: March 28, 2017.
E. Scott Pruitt,
[FR Doc. 2017-06519 Filed 4-3-17; 8:45 am]
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