[Federal Register Volume 82, Number 63 (Tuesday, April 4, 2017)]
[Proposed Rules]
[Pages 16330-16331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06519]



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.

I. Background

    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

[[Page 16331]]

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]