82 FR 16329 - Review of the Clean Power Plan

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 82, Issue 63 (April 4, 2017)

Page Range		16329-16330
FR Document		2017-06522
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.
Federal Register, Volume 82 Issue 63 (Tuesday, April 4, 2017)
[Federal Register Volume 82, Number 63 (Tuesday, April 4, 2017)]
[Proposed Rules]
[Pages 16329-16330]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-06522]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[FRL-9961-11-OAR]


Review of the Clean Power Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Announcement of review.

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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: airaction@epa.gov.

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 
law.
    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,
Administrator.
[FR Doc. 2017-06522 Filed 4-3-17; 8:45 am]
BILLING CODE 6560-50-P
Federal Register / Vol. 82, No. 63 / Tuesday, April 4, 2017 / Proposed Rules 16329

the storage, preparation, and launching Federal Register as practicable, in nitrogen oxides (NOX) and sulfur
of fireworks. COTP Key West or a accordance with 33 CFR 165.7(a). Such dioxide (SO2). See 40 CFR part 60
designated representative may reduce means of notification may also include, subparts D, Da. In 2015, the EPA issued
the 500-yard zone based on prevailing but are not limited to Broadcast Notice a rule that for the first time set carbon
conditions and enforcement needs. to Mariners or Local Notice to Mariners. dioxide emission limits for new fossil
(1) The Coast Guard realizes that some Dated: March 28, 2017. fuel-fired power plants. Standards of
large scale events, such as those with Performance for Greenhouse Gas
J.A. Janszen,
many participants or spectators, or those Emissions From New, Modified, and
that could severely restrict navigation Captain, U.S. Coast Guard, Captain of the
Reconstructed Stationary Sources:
Port Key West.
pose a significant hazard, may still Electric Generating Units, 80 FR 64510
require separate special local [FR Doc. 2017–06595 Filed 4–3–17; 8:45 am]
(October 23, 2015). Under certain
regulations or safety zones that address BILLING CODE 9110–04–P circumstances, when the EPA issues
the specific peculiarities of the event. In standards for new sources under Section
those situations, the Coast Guard will 111(b), the EPA has the authority under
create special local regulations or safety ENVIRONMENTAL PROTECTION Section 111(d), to prescribe regulations
zones specifically for the event, and AGENCY under which each State is to submit a
those regulations will supersede the plan to establish standards for existing
proposed regulations in this rule. 40 CFR Part 60 sources in the same category. The EPA
(2) All firework platforms, structures, [FRL–9961–11–OAR] relied on that authority to issue the CPP,
or barges will display a sign on both the which, for the first time, required States
port and starboard sides labeled, Review of the Clean Power Plan to submit plans specifically designed to
‘‘FIREWORKS—STAY AWAY’’. This limit carbon dioxide emissions from
sign will consist of 10-inch high by 1.5- AGENCY: Environmental Protection
existing fossil fuel-fired power plants.
inch wide red lettering on a white Agency (EPA).
As part of the promulgation of the CPP,
background. Shore fireworks sites that ACTION: Announcement of review.
EPA prepared a legal memorandum that
affect navigable waterways will also SUMMARY: The U.S. Environmental supplemented the legal analysis
display signs with the aforementioned Protection Agency (EPA) announces that provided by the Agency in the preamble
specifications. it is reviewing and, if appropriate will to the final CPP.
(b) Definition. Designated initiate proceedings to suspend, revise Due to concerns about EPA’s legal
representative means Coast Guard Patrol or rescind the Clean Power Plan. authority and record, 27 States and a
Commanders, including Coast Guard number of other parties sought judicial
DATES: April 4, 2017.
coxswains, petty officers, and other review of the CPP in the D.C. Circuit.
officers operating Coast Guard vessels, FOR FURTHER INFORMATION CONTACT: Mr. State of West Virginia v. EPA, No. 15–
and Federal, state, and local officers Peter Tsirigotis, Sector Policies and 1363 (and consolidated cases) (D.C.
designated by or assisting the COTP Key Programs Division (D205–01), U.S. Cir.). On February 9, 2016, the Supreme
West in the enforcement of the regulated Environmental Protection Agency, Court stayed implementation of the CPP
area. Research Triangle Park, NC 27711; pending judicial review. Following full
(c) Regulations. telephone number: (888) 627–7764; merits briefing, oral argument was held
(1) In accordance with § 165.23, email address: airaction@epa.gov. before the D.C. Circuit, sitting en banc,
entering, transiting through, anchoring SUPPLEMENTARY INFORMATION: By this on September 27, 2016. That case is
in, or remaining within the safety zone notice, EPA announces it is reviewing currently pending in the D.C. Circuit.
during periods of enforcement is the Clean Power Plan, 80 FR 64662
prohibited unless authorized by the (October 23, 2015) (CPP), including the II. Initiation of Review of CPP
COTP Key West or a designated accompanying Legal Memorandum, On March 28, 2017, President Trump
representative. and, if appropriate, will as soon as issued an Executive Order establishing
(2) During periods of enforcement, practicable and consistent with law, a national policy in favor of energy
upon being hailed by a Coast Guard initiate proceedings to suspend, revise independence, economic growth, and
vessel by siren, radio, flashing light or or rescind this rule. The CPP established the rule of law. The purpose of that
other means, the operator must proceed emission guidelines for state plans to Executive Order is to facilitate the
as directed. limit carbon dioxide emissions from development of U.S. energy resources—
(3) Vessel operators desiring to enter, existing fossil fuel-fired power plants. including oil and gas—and to reduce
transit through, anchor in, or remain or unnecessary regulatory burdens
operate within the regulated area during I. Background associated with the development of
the enforcement period shall contact the The CPP was promulgated under those resources. The President has
COTP Key West or the designated on- Section 111 of the Clean Air Act. 42 directed agencies to review existing
scene representative via VHF channel U.S.C. 7411. Section 111 of the Clean regulations that potentially burden the
16 or call the Sector Key West Air Act authorizes the EPA to issue development of domestic energy
Command Center at (305) 292–8727 to nationally applicable New Source resources, and appropriately suspend,
obtain permission. Performance Standards (NSPS) limiting revise, or rescind regulations that
(d) Notice of enforcement or air pollution from ‘‘new sources’’ in unduly burden the development of U.S.
suspension of enforcement. The safety source categories that cause or energy resources beyond what is
nlaroche on DSK30NT082PROD with PROPOSALS

zone established by this section will be contribute to air pollution that may necessary to protect the public interest
enforced only upon notice of the reasonably be anticipated to endanger or otherwise comply with the law. The
Captain of the Port. The Captain of the public health or welfare. 42 U.S.C. Executive Order also directs agencies to
Port will cause notice of enforcement of Section 7411(b)(1). Under this authority, take appropriate actions, to the extent
the safety zone established by this the EPA had long regulated new fossil permitted by law, to promote clean air
section to be made by all appropriate fuel-fired power plants to limit air and clean water while also respecting
means to the affected segments of the pollution other than carbon dioxide, the proper roles of Congress and the
public including publication in the including particulate matter (PM); States. This Executive Order specifically

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Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Announcement of review.
Dates		April 4, 2017.
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;
FR Citation		82 FR 16329