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Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations explain why each of them has become invalid. They said promulgating a final rule contrary to the 2015 Rule without the requisite record-based, factual analysis and reasoned explanation would yield an unexplained inconsistency in agency policy that is arbitrary, capricious, and unlawful.
Commenters stated that that while the most comprehensive approach to sensible GHG regulation remains through congressional action, and while the CAA is far from the perfect tool for regulating GHGs, it is preferable to protracted legal battles and to the potential patchwork of judicial and regulatory outcomes. As a result, the Agency should retain the existing endangerment finding. They said that if the EPA fails to regulate GHG emissions from new coal-fired EGUs it would be wholly unreasonable and contrary to the endangerment finding.
Response: The EPA addressed the substance of these comments in a lengthy discussion in Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review: Final Rule, 85 FR
57018, 5703340, 5705258 September 14, 2020. That discussion is incorporated by reference here. That discussion further elaborates the rationale for EPAs determination that a pollutant-specific significant contribution determination is appropriate, and EPAs related determinations. That discussion also responds in full to the comments on the present rule.
It should be noted that in the 2015
Rule, EPA combined the steam generating source category and combustion turbine source category into a single source category for purposes of GHG emission regulation, 80 FR 64510, 6452132 October 23, 2015, and determined, in the alternative, that GHG
emissions from the combined source category contribute significantly to dangerous air pollution. Id. at 64531. In todays rulemaking, the EPA is not revising the source category determination in the 2015 Rule and, by the same token, the significant contribution finding that EPA is making in the present rulemaking for GHG
emissions concerns emissions from the same, combined source category.
Comment: Commenters stated that if the Endangerment Finding is overturned, the electric power sector could be broadly exposed to tort and nuisance suits brought by citizens and statesas was the case prior to the EPA
regulation of GHGs e.g., American Electric Power Co. v. Connecticut, 564
U.S. 610 2011. Accordingly, these efforts would create more uncertainty
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about the future of GHG regulations applicable to new EGUsuncertainty that likely would not be resolved for years and could undermine any potential for generation owners and operators to consider new coal-based generation as a viable option. They said as a result, the Agency should retain the existing endangerment finding.
Response: The Agency has not proposed to overturn the existing Endangerment Finding and is not overturning it in this final rule.
Comment: Commenters stated that to the extent that emissions of CO2 from new, modified, or reconstructed electric utility generating units are to be subjected by the EPA to regulation under the CAA, the proper path would be to regulate such emissions as part of a broader effort to regulate CO2
emissions from numerous or diverse sources under sections 108110 of the CAA. Alternatively, if the EPA is adamant in engaging in regulating such emissions under section 111b, at the very least the EPA must complete a specific endangerment finding for CO2
emissions from such facilities under the applicable criteria set forth in section 111b, which the EPA has failed to do to date. Either way, commenters stated that the proposed rule amendment is beyond the legal authority of the CAA.
Response: EPA is making a pollutantspecific significant contribution finding in this action.
Comment: Commenters quoted the NSPS proposal as stating that the Agency will consider comments on the correctness of the EPAs interpretations and determinations, and whether there are alternative interpretations that may be permissible, either as a general matter or specifically as applied to GHG
emissions 83 FR 65242, 65432 n.25.
Commenters then stated that they filed a petition in 2017 contending that the EPA should commence a new rulemaking on the subject of the Agencys 2009 endangerment finding.
They provided the following arguments of the 2017 petition: 1 There had been no statistically significant atmospheric warming despite a continued increase in atmospheric CO2 levels; 2 changes in global temperatures in recent decades were far from unusual; 3 new balloon and satellite data showed that the atmosphere was far less sensitive to CO2
forcing than the climate models had predicted; and 4 there was mounting evidence that the EPAs GHG rules would have no discernible climate impact. For these reasons, they said there was a need to reexamine both the three lines of evidence for the EPAs endangerment finding as well as its underlying rationale. Regarding the
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proposal, the commenters stated that in addition to their still pending petition, they are providing new evidence for why the Agency should proceed with this petition and with similar petitions pending before it. They submitted references titles, weblinks, and synopses to nine research papers published since filing their initial petition which they argue add additional support. They stated that given the points and data outlined in this newer research, in addition to those set forth in their 2017 petition, the EPA
should commence a new proceeding to reexamine its 2009 endangerment finding.
Response: The Agency is retaining the existing endangerment finding. The submitted material is out of scope for this rulemaking. With regards to the claim that EPA was soliciting comments on this subject, the footnote quoted by the commenters goes on to specifically outline examples of the kind of comments referred to: This further elaboration made clear that EPA was not soliciting comments on the science of climate change but rather regarding interpretation of statutory language and legal opinion as to whether the Agency would need to make an endangerment finding for previously listed source categories For example, the Agency will consider comments on the issue of whether it is correct to interpret the endangerment finding as a finding that is only made once for each source category at the time that the EPA lists the source category or whether the EPA
must make a new endangerment finding each time the Agency regulates an additional pollutant by an already-listed source category. Further, the EPA will consider comments on the issue of whether GHG emissions are different in salient respects from traditional emissions such that it would be appropriate to conduct a new endangerment finding with respect to GHG emissions from a previously listed source category. In addition, the EPA
solicits comment on whether the Agency does have a rational basis for regulating CO2 emissions from new coal-fired electric utility steam generating units and whether it would have a rational basis for declining to do so at this time 83 FR 65242, 65432
n.25.
Comment: Commenters also said that the Agency suggestion in footnote 25 of the Proposal is unreasonable in that the Agency seems to presume that it might not be appropriate to regulate GHGs from new coal-fired power plants because the Agency projects that few such plants will be built in coming years. They said this approach asks the
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