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Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations
wrong question. The question should be whether there is a rational basis to regulate GHGs from power plantsnot just new coal-fired plants. This is because, once new sources are regulated under section 111b, the obligation to regulate existing sources under section 111d is triggered. If new sources in a source category could not be regulated under section 111b, no sources in the category could be regulated.
Commenters further stated that the EPA
cannot reverse its position merely by asking for comments on whether it should adopt a new position diametrically opposed to both current law and the position it maintains in the Proposed Rule.
Commenters stated that using footnote 25 as a means of requesting public comment is misleading and violates administrative procedures. They said that it appears that the EPA is seeking rationale or justification to under the legal basis for this rule while claiming that is retaining its legal basis. The EPA
cannot have it both ways: either EPA is using its legal basis, or it is looking for alternatives. If it is looking for alternatives, then EPA has not met its responsibilities under the Administrative Procedures Act for fair notice of the nature and scope of this rulemaking.
Commenters stated that in the endangerment finding footnote of the 2018 Proposal 83 FR 65432 n 25, the EPA suggests that it may consider whether it would have a rational basis to decline to regulate given that no more than a few new coal-fired EGUs can be expected to be built. The commenters said this suggestion is not legally or factually sound and does not provides a valid reason not to regulate GHGs from fossil fuel-fired EGUs under section 111. They said the statute is unambiguous: The EPA must consider pollution from both new and existing sources when deciding whether to regulate a pollutant within a source category. To the extent that the statute contains any ambiguity, a decision not to regulate based solely on projected levels of emissions from new sources would be disallowed as an impermissible construction. They argued that section 111b unambiguously expresses Congresss concern with pollution emitted from a source category as a whole, not just new sources and 111b directs the Administrator to base decisions about whether to list a source category on an analysis of the entire category, including existing sources. Section 111b1A
does not distinguish between new and existing sources but rather
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conveys Congresss directive to address pollution across the source category.
The commenters also stated that Footnote 25 of the proposal raises the prospect that, on the question of regulating a pollutant from a listed source category, Congress inexplicably intended for the EPA to consider pollution from new sources only, irrespective of the harm caused by pollution from existing sourcesand even though Congress directed the EPA
to consider the air pollution from the sector as a whole, that plain language should be ignored. They said the Agency presents no support for this theory, which is contrary to both the clear terms and the evident objective of the statute. The commenters argued that Footnote 25s suggested interpretation disregards statutory language in other ways as well. For example, section 111b1 provides that the Administrator shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare. 42 U.S.C. 7411b1A. Yet as of the date of when the EPA
determines to list a source category, there are no new sources in existence.
Section 111a2 provides: The term new source means any stationary source, the construction or modification of which is commenced after the publication of regulations or, if earlier, proposed regulations prescribing a standard of performance under this section which will be applicable to such source. Id. section 7411a2. They said under section 111, listing precedes promulgation of standards. So, when the EPA decides whether to list a category, by definition it has not yet proposed section 111 standards for that category and because it has not proposed such standards, no sources qualify as new sources under section 111a2. Basing a decision not to list and therefore not to regulate a source category solely on the absence of emissions from as yet nonexistent new sourceswhile ignoring sources that already exist and are emitting pollutants that threaten harm to public health and welfareis not a tenable reading of the statutory language.
Response: In this rule, EPA takes the position that GHG emissions from new and existing EGUs contribute significantly to dangerous air pollution.
While EPA proposed to retain the position that it stated in the 2015 Rule that a pollutant-specific significant contribution finding is not required, it solicited comment on whether such a finding is required, and that comment solicitation provided adequate notice.

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Comment: Commenters stated that though the EPA notes that it is not proposing to revisit its 2009
endangerment finding for greenhouse gases, the proposed NSPS revisions request comment on whether recent and projected power sector trends present a rational basis to decline to regulate CO2
emissions from the power sector. The suggested comment area, presented in footnote 25, cites power sector trend projections from the Energy Information Administrations EIAs 2018 Annual Energy Outlook and findings from the EPAs proposed Affordable Clean Energy ACE rule as potential support for this position. Commenters also stated that the EIAs 2018 Annual Energy Outlook does not indicate that power sector CO2 emissions will decline significantly in the future. Instead, the estimates referenced by the EPA in the proposal project that CO2 emissions from the power sector will remain the single largest sector-based source of CO2
emissions over the long term, totaling 1.72 billion tons in 2020, 1.71 billion tons in 2030, and 1.78 billion tons in 2050. Commenters said though the EPA
found that the transportation sector overtook the power sector as the largest sector-based source of GHG emissions in 2017, the 2018 Annual Energy Outlook projects that power sector emissions will regain the top ranking in 2026 and maintain a lead over the transportation sector by growing modestly through 2050. Commenters stated while newer EIA projections that were unavailable at the time of the EPAs proposal indicate slightly lower power sector CO2
emissions, EIA still projects significant and sustained power sector GHG
emissions through 2050, not a steady decline. Commenters said a report from the Rhodium Group based on preliminary EIA data for 2018 and released a few weeks after the EPAs proposal estimates that power sectorrelated GHG emissions increased 3.4
percent in 2018, breaking a three-year trend of decreases. Commenters added still more recent EPA data reveals the same pattern. Commenters stated preliminary 2018 emissions data compiled by EPAs Clean Air Markets Division CAMD, also released after the proposed NSPS revisions were published in the Federal Register, show power sector CO2 emissions rising from 1.92 billion tons in 2017 to 1.93 billion tons in 2018. Commenters said prior to the 2018 release, EPAs CAMD data had shown flat or declining CO2 emissions for every year since 2013.
Commenters stated it would be unlawful and arbitrary for the EPA to use declining power sector emissions as
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