[Federal Register Volume 82, Number 63 (Tuesday, April 4, 2017)]
[Proposed Rules]
[Pages 16329-16330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06522]



40 CFR Part 60


Review of the Clean Power Plan

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 Clean Power Plan.

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 Clean Power Plan, 80 FR 64662 (October 23, 2015) (CPP), 
including the accompanying Legal Memorandum, and, if appropriate, will 
as soon as practicable and consistent with law, initiate proceedings to 
suspend, revise or rescind this rule. The CPP established emission 
guidelines for state plans to limit carbon dioxide emissions from 
existing fossil fuel-fired power plants.

I. Background

    The CPP was promulgated under Section 111 of the Clean Air Act. 42 
U.S.C. 7411. Section 111 of the Clean Air Act authorizes the 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, the 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 
2015, the EPA issued a rule that for the first time set carbon dioxide 
emission limits for new fossil fuel-fired power plants. Standards of 
Performance for Greenhouse Gas Emissions From New, Modified, and 
Reconstructed Stationary Sources: Electric Generating Units, 80 FR 
64510 (October 23, 2015). Under certain circumstances, when the EPA 
issues standards for new sources under Section 111(b), the EPA has the 
authority under Section 111(d), to prescribe regulations under which 
each State is to submit a plan to establish standards for existing 
sources in the same category. The EPA relied on that authority to issue 
the CPP, which, for the first time, required States to submit plans 
specifically designed to limit carbon dioxide emissions from existing 
fossil fuel-fired power plants. As part of the promulgation of the CPP, 
EPA prepared a legal memorandum that supplemented the legal analysis 
provided by the Agency in the preamble to the final CPP.
    Due to concerns about EPA's legal authority and record, 27 States 
and a number of other parties sought judicial review of the CPP in the 
D.C. Circuit. State of West Virginia v. EPA, No. 15-1363 (and 
consolidated cases) (D.C. Cir.). On February 9, 2016, the Supreme Court 
stayed implementation of the CPP pending judicial review. Following 
full merits briefing, oral argument was held before the D.C. Circuit, 
sitting en banc, on September 27, 2016. That case is currently pending 
in the D.C. Circuit.

II. Initiation of Review of CPP

    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--
including oil and gas--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. This 
Executive Order specifically

[[Page 16330]]

directs EPA to review and, if appropriate, initiate reconsideration 
proceedings to suspend, revise or rescind this Rule, including the 
accompanying Legal Memorandum.
    Pursuant to the Executive Order, EPA is initiating its review of 
the CPP, including the accompanying legal memorandum, 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 this 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 
    As part of the review of the CPP that EPA is initiating today, EPA 
will be reviewing the compliance dates that were set in the CPP. Under 
the Supreme Court's stay of the CPP, states and other interested 
parties have not been required nor expected to work towards meeting the 
compliance dates set in the CPP. Indeed, some compliance dates have 
passed or will likely pass while the CPP continues to be stayed. For 
these reasons, the compliance dates in the CPP will need to be re-
evaluated. Once EPA completes its review and decides what further 
action to take on the CPP, EPA will ensure that any and all remaining 
compliance dates will be reasonable and appropriate in light of the 
Supreme Court stay of the CPP and other factors.
    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, as 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 and 
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. 2017-06522 Filed 4-3-17; 8:45 am]