Emergency Application — National Mining Association and America's Power, Applicant v. Environmental Protection Agency, et al.

No. ______

In the Supreme Court of the United States

NATIONAL MINING ASSOCIATION and AMERICA’S POWER,

APPLICANTS,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and

MICHAEL S. REGAN, in his official capacity as Administrator of the United States

Environmental Protection Agency, ET AL.,

RESPONDENTS.

APPLICATION BY THE NATIONAL MINING ASSOCIATION AND AMERICA’S POWER

FOR IMMEDIATE STAY OF FINAL AGENCY ACTION DURING PENDENCY OF

PETITIONS FOR REVIEW

On Application For Stay To The

U.S. Court Of Appeals For The District of Columbia

To the Honorable John G. Roberts, Jr.,

Chief Justice of the United States and Circuit Justice for the United States

Court of Appeals for the District of Columbia Circuit

CARROLL WADE MCGUFFEY III

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St. N.E.

Suite 3000

Atlanta, GA 30308

MISHA TSEYTLIN

Counsel of Record

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe, Suite 3900

Chicago, Illinois 60606

(608) 999-1240

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

Attorneys for Applicants

PARTIES TO THIS PROCEEDING

Applicants in this Court and Petitioners below are the National Mining

Association and America’s Power.

Respondents in this Court and Respondents below are the United States

Environmental Protection Agency and Michael S. Regan, Administrator, United

States Environmental Protection Agency.

Respondents in this Court and Petitioners below are as follows:

24-1120: State of West Virginia, State of Indiana, State of Alabama, State of

Alaska, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of

Iowa, Commonwealth of Kentucky, State of Louisiana, State of Mississippi, State of

Missouri, State of Montana, State of Nebraska, State of New Hampshire, State of

North Dakota, State of Oklahoma, State of South Carolina, State of South Dakota,

State of Tennessee, State of Texas, State of Utah, Commonwealth of Virginia, State

of Wyoming

24-1121: State of Ohio and State of Kansas

24-1122: National Rural Electric Cooperative Association

24-1124: National Mining Association and America’s Power

24-1126: Oklahoma Gas and Electric Company

24-1128: Electric Generators for a Sensible Transition

24-1142: United Mine Workers of America, AFL-CIO

24-1143: International Brotherhood of Electrical Workers, AFL-CIO

24-1144: International Brotherhood of Boilermakers, Iron Ship Builders,

Blacksmiths, Forgers and Helpers, AFL-CIO

24-1146: Midwest Ozone Group

24-1152: Edison Electric Institute

24-1153: NACCO Natural Resources Corporation

24-1155: Idaho Power Company

24-1222: Appalachian Region Independent Power Producers Association

24-1226: Rainbow Energy Center, LLC

24-1227: Montana-Dakota Utilities Co.

24-1233: Westmoreland Mining Holdings LLC, Westmoreland Mining LLC,

Westmoreland Rosebud Mining LLC

Respondents in this Court and Intervenors for Petitioners below are the

Louisiana Public Service Commission and Tennessee Valley Public Power

Association, Inc.

Respondents in this Court and Intervenors for Respondents below are the

American Lung Association, American Public Health Association, California Air

Resources Board, City and County of Denver, City of Boulder, City of Chicago, City

of New York, Clean Air Council, Clean Wisconsin, Commonwealth of Massachusetts,

Commonwealth of Pennsylvania, District of Columbia, Edison Electric Institute,

Natural Resources Defense Council, State of Arizona, State of Colorado, State of

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Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine,

State of Maryland, State of Michigan, State of Minnesota, State of New Mexico, State

of New York, State of North Carolina, State of Oregon, State of Rhode Island, State

of Vermont, State of Washington, State of Wisconsin, State of New Jersey,

Consolidated Edison, Inc., New York Power Authority, Pacific Gas and Electric

Company, Power Companies Climate Coalition, Sacramento Municipal Utility

District.

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Applicants the National Mining Association (“NMA”)

and America’s Power state as follows:

NMA has no parent corporation and no publicly held company has 10% or

greater ownership interest in NMA.

America’s Power has no parent corporation and no publicly held company has

10% or greater ownership interest in America’s Power.

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TABLE OF CONTENTS

DECISION BELOW ...................................................................................................... 5

JURISDICTION............................................................................................................. 5

STATUTORY PROVISIONS INVOLVED .................................................................... 5

STATEMENT ................................................................................................................. 5

REASONS FOR GRANTING THE APPLICATION .................................................. 10

I.

This Court Would Likely Grant Review And Reverse If The D.C. Circuit

Upholds The Final Rule .................................................................................. 11

II. Applicants And Their Members Will Suffer Irreparable Harm If This

Court Does Not Grant A Stay......................................................................... 17

III. The Final Rule’s Devastating Consequences Are Contrary To The Public

Interest ............................................................................................................ 26

CONCLUSION............................................................................................................. 30

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TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,

594 U.S. 758 (2021) (per curiam)................................................................ 17, 25

Columbia Broad. Sys. v. United States,

316 U.S. 407 (1942) ........................................................................................... 18

F.C.C. v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ........................................................................................... 16

Hollingsworth v. Perry,

558 U.S. 183 (2010) (per curiam)...................................................................... 11

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) ....................................................................................... 14

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ............................................................................................. 16

Nken v. Holder,

556 U.S. 418 (2009) ........................................................................................... 11

Nken v. Mukasey,

555 U.S. 1042 (2008) (mem.)............................................................................. 10

Ohio v. EPA,

144 S. Ct. 2040 (2024) ................................................................................. 17, 25

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ............................................................................................. 15

Philip Morris USA Inc. v. Scott,

561 U.S. 1301 (2010) ......................................................................................... 17

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) ..................................................................................... 17, 25

Trump v. Int’l Refugee Assistance Project,

582 U.S. 571 (2017) (per curiam)...................................................................... 26

West Virginia v. EPA,

577 U.S. 1126 (2016) (mem.)................................................................... 1, 10, 11

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West Virginia v. EPA,

597 U.S. 697 (2022) ................................................................. 2, 3, 5, 6, 7, 15, 16

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008) ......................................................................................... 17, 25

Statutes

5 U.S.C. § 702 ............................................................................................................... 17

5 U.S.C. § 705 ........................................................................................................... 5, 10

28 U.S.C. § 1254 ....................................................................................................... 5, 10

28 U.S.C. § 1651 ............................................................................................................. 5

28 U.S.C. § 2101 ........................................................................................................... 10

42 U.S.C. § 7411 ........................................................................... 5, 6, 12, 13, 14, 15, 17

Regulations

80 Fed. Reg. 64,662 (Oct. 23, 2015) ........................................................................... 1, 6

84 Fed. Reg. 32,520 (July 8, 2019) .............................................................................. 14

89 Fed. Reg. 39,798 (May 9, 2024) ................................................ 7, 8, 9, 12, 14, 18, 19

Other Authorities

Chris Horner, The EPA Defies the Supreme Court, Wall St. J. (Aug. 17, 2023) ......... 2

Comment from Craig Glazer et al., Joint Comments of ERCOT, MISO, PJM, and

SPP (Aug. 8, 2023), Doc. ID No. EPA-HQ-OAR-2023-0072-0673 ................... 29

Comment from Jeff Jickling, SaskPower (Aug. 4, 2023), Doc. ID No. EPA-HQ-OAR2023-0072-0687 ................................................................................................. 13

Comment from Michelle Bloodworth, America’s Power (Aug. 8, 2023), Doc. ID No.

EPA-HQ-OAR-2023-0072-0656 ........................................................................ 16

Comment from Michelle Bloodworth, America’s Power (Dec. 20, 2023), Doc. ID No.

EPA-HQ-OAR-2023-0072-8175 ........................................................................ 29

Comment from Tawny Bridgeford, National Mining Association (Aug. 8, 2023)

(“NMA Comments”), Doc. ID No. EPA-HQ-OAR-2023-0072-0695.................. 12

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TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE UNITED STATES

AND CIRCUIT JUSTICE FOR THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT:

The National Mining Association (“NMA”) and America’s Power respectfully

request an immediate stay of the final rule of the United States Environmental

Protection Agency (“EPA”) entitled “New Source Performance Standards for

Greenhouse Gas Emissions From New, Modified, and Reconstructed Fossil FuelFired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions

From Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the

Affordable Clean Energy Rule,” 89 Fed. Reg. 39,798 (May 9, 2024) (the “Final Rule”).

Such a stay is necessary now for much the same reasons that this Court considered

in 2016, when it stayed the similarly unlawful Clean Power Plan. See West Virginia

v. EPA, 577 U.S. 1126 (2016) (mem.).

It is rare for a federal agency to attempt to evade this Court so brazenly. In

2015, with the so-called “Clean Power Plan,” EPA attempted to force a nationwide

shift away from coal-fired generation to renewable energy. See 80 Fed. Reg. 64,662

(Oct. 23, 2015). After receiving stay-stage briefing about how EPA had no statutory

authority to fundamentally transform our Nation’s energy grid under Section 111(d)

of the Clean Air Act (“CAA”), as well numerous declarations explaining the

devastating impact that such an EPA-forced transformation would have on coal-fired

electric generating units, the grid itself, coal miners, and many others, this Court

granted petitioners’ request for a stay. Then, in West Virginia v. EPA, 597 U.S. 697

(2022), this Court confirmed that EPA had no authority to transform the electricity

grid through generation shifting under Section 111(d), making clear that the Plan

was always unlawful. Just two years later, EPA is now attempting to accomplish

through a clumsy sleight-of-hand what this Court has already held it cannot do. With

the Final Rule, EPA requires power plants to make the choice to either engage in the

very generation shifting that West Virginia held is unlawful, or make astronomical

and immediate investments to attempt to apply 90% carbon-capture-andsequestration (“CCS”) by 2032—something that EPA knows no power plant is likely

to be able to accomplish, and which few will even attempt. Just like it did with the

Clean Power Plan, EPA designed the Final Rule to force widespread retirement of

coal-fired power plants, creating no choice but to shift to other energy sources and

cementing the Administration’s goal to “pivot and invest in a clean energy future.”

Chris Horner, The EPA Defies the Supreme Court, Wall St. J. (Aug. 17, 2023).*

Applicants here are entitled to a stay of the Final Rule, just as the applicants

were when this Court stayed the Clean Power Plan in 2016.

On the merits, if the D.C. Circuit upholds the Final Rule, this Court will likely

grant review and reverse. The legality of the Final Rule is as exceptionally important

as was the legality of the Clean Power Plan. Both regulations threaten “separation

Available at https://www.wsj.com/articles/epa-environmental-protection-supremecourt-regulation-unconstitutional-climate-change-administrative-state-biden-42f31ce3 (all

websites last visited July 23, 2024).

*

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of powers principles and a practical understanding of legislative intent,” as well as

the Nation’s vulnerable electricity grid, West Virginia, 597 U.S. at 723, thus

warranting this Court’s review. With the Final Rule, EPA once again has asserted

“unprecedented” authority to force “generation shifting,” id. at 728–29—this time by

way of a Hobson’s choice. Power plants now must either shut down or attempt what

has never been done: continuous 90% CCS. Only one facility in the world has ever

tried to hit that mark, and the project failed after a few days, despite the billions of

(Canadian) dollars invested. EPA claims that the technology to accomplish this Hail

Mary is “adequately demonstrated,” but that assertion defies the statutory text, not

to mention reality, given that continuous 90% CCS has yet to be “demonstrated” at

all. Because the only realistic option under the Final Rule for the vast majority of

coal-fired power plants—and, mostly likely, all such plants—is shutting down and

then shifting generation, this Court is likely to strike down the Final Rule.

The irreparable harms and the equities are likewise the same as they were in

2016. The Final Rule will be just as devastating as the Clean Power Plan for the

power plant and coal mine owners that comprise Applicants’ members. The few

plants that will attempt 90% CCS technology by the Final Rule’s impossible deadline

are already incurring substantial and irreversible compliance costs, or will do so in

the very near term. And those plants that cannot take that risk have to make

irrevocable retirement decisions now, given the long planning horizons required to

manage power plants and mines. Thousands of good jobs will be lost, especially in

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areas of the country where such well-paying jobs are scarce. Millions of coal-sourced

dollars in federal, state, and local taxes will disappear with the coal-fired plants and

mines. The Final Rule will also strain the Nation’s electricity grid to an alarming

degree, even as judicial review is pending, placing reliable, affordable electricity at

risk for consumers who depend on coal-fired generation to keep the lights on.

Applicants’ members and the communities they serve will incur these irreparable

harms before the Final Rule’s illegality can be laid bare in litigation.

The D.C. Circuit’s abbreviated stay denial order was, with all respect, entirely

inadequate, especially given that this Court reversed that same court both at the stay

stage and on the merits with regard to the Clean Power Plan. On likelihood of

success, the D.C. Circuit provided no reasoning for its conclusion that petitioners will

not prevail, but rather stated two perfunctory conclusions. As to the equities, the

D.C. Circuit believed that Applicants did not establish harm justifying a stay because

actual compliance is not required until 2030 or 2032. But the same was true with the

Clean Power Plan, where power plants had many years to actually shift generation.

When asking this Court to stay the Clean Power Plan, the applicants explained that

if this Court granted a stay, they would no longer need to make the irreversible

investments to facilitate EPA-mandated generation shifting, and that given the

nature of the stay, the Plan’s deadlines would naturally be tolled in the unlikely event

the Plan was found lawful at the end of the litigation. So too, here. If this Court

stays the Final Rule—just as it stayed the Clean Power Plan—power plants will know

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that they do not need to choose between shutting down and taking a moonshot gamble

of attempting to apply 90% CCS by 2032. That was the core equitable basis for this

Court’s Clean Power Plan stay in 2016 when the D.C. Circuit wrongly denied the stay

request, and this Court should take the same action here.

DECISION BELOW

The D.C. Circuit’s order denying the motions for a stay of the Final Rule in this

consolidated action, including the motion filed by NMA and America’s Power, is

unpublished. App.268a–70a. The Final Rule is published at 89 Fed. Reg. 39,798

(May 9, 2024), and reproduced at App.1a–267a.

JURISDICTION

This Court has jurisdiction over this Application under 28 U.S.C. § 1254(1). It

has authority to grant the requested relief pursuant to the Administrative Procedure

Act, 5 U.S.C. § 705, and the All Writs Act, 28 U.S.C. § 1651.

STATUTORY PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are reproduced in the Appendix

at App.271a–78a.

STATEMENT

A. Section 111 of the Clean Air Act (“CAA”) requires EPA to set “standards of

performance” for stationary sources on a “pollutant-by-pollutant basis.”

West

Virginia, 597 U.S. at 709 (quoting 42 U.S.C. § 7411(b)(1)(B)). To do so, the agency

determines the “best system of emission reduction” (“BSER”) that is “adequately

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demonstrated,” considering factors including the “cost of achieving such reduction.”

App.271a; 42 U.S.C. § 7411(a)(1). EPA must also determine the “degree of emission

limitation achievable through the application” of the identified BSER technology.

App.271a; 42 U.S.C. § 7411(a)(1).

Section 111(d) “operates as a gap-filler” with respect to existing sources,

authorizing EPA to regulate emissions “not already controlled under the Agency’s

other authorities.” See West Virginia, 597 U.S. at 710 (citation omitted). Based upon

the BSER that EPA reasonably determines “has been adequately demonstrated” and

the “degree of emission limitation achievable” with that BSER, States establish the

performance standards for existing sources, which are set forth in “plan[s]” that the

States must submit to EPA for review and approval. App.271a, 273a; 42 U.S.C.

§§ 7411(a)(1), (d)(1).

EPA promulgated its first Section 111(d) rule to address greenhouse gas

emissions from power plants in 2015, naming it the “Clean Power Plan.” See 80 Fed.

Reg. 64,662. In 2016, this Court stayed the Clean Power Plan from taking effect in

light of widespread harms stemming from EPA’s effort to reengineer the nation’s

power grid through generation shifting. See Stay App. at 38–48, West Virginia v.

EPA, No.15A773 (U.S. filed Jan. 26, 2016); Stay App. at 12–21, Basin Elec. Power

Coop. v. EPA, No.15A776 (U.S. filed Jan. 27, 2016). Six years later, this Court issued

a merits ruling on the underlying legality of the Clean Power Plan and definitively

held that EPA may not use Section 111(d) to mandate generation shifting—that is,

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“reduce pollution simply by ‘shifting’ polluting activity ‘from dirtier to cleaner

sources.’” West Virginia, 597 U.S. at 725 (citation omitted).

B. EPA promulgated the Final Rule at issue here on April 25, 2024. The Final

Rule purports to regulate CO2 emissions from certain new and existing sources,

including existing coal-fired power plants under Section 111(d). App.1a–267a; 89

Fed. Reg. 39,798 (May 9, 2024). Among other aspects, the Final Rule sets forth

“emission guidelines” for existing coal-fired plants, requiring each facility to selfselect into one of three groups. App.4a; 89 Fed. Reg. at 39,801. The Rule terms two

of these groups “subcategories,” and the third a so-called “applicability exemption.”

See App.4a; 89 Fed. Reg. at 39,801.

The first subcategory comprises plants that do not accept a mandatory

retirement date and “intend to operate past January 1, 2039.” App.41; 89 Fed. Reg.

at 39,838. The agency has identified 90% CCS as the BSER for reducing emissions

from these plants.

App.43a; 89 Fed. Reg. at 39,840.

The “degree of emission

limitation” that EPA has determined to be achievable with the 90% CCS BSER is an

emission reduction of 88.4%. App.43a; 89 Fed. Reg. at 39,840. Only a few facilities

worldwide have even attempted to implement CCS to date, at any amount of capture,

and none has come close to continuous 90% CO2 capture of an entire unit’s exhaust.

See infra pp.12–13; App.405a–07a (McLennan Decl. ¶¶ 213, 23, 25), 413a (id. ¶ 33),

438a–39a (id. ¶ 80). The Final Rule “assumes” that “long-term” plants will begin

“work[ing]” toward “each component of CCS (capture, transport, and storage)” by

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“June 2024” (already in the past), and requires the plant to have achieved 90% CO2

capture before January 1, 2032. App.77a; 89 Fed. Reg. at 39,874. The Final Rule

asserts that a “BSER can be forward-looking in nature and take into account

anticipated improvements in control technologies.” App.4a; 89 Fed. Reg. at 39,801

(emphasis added). EPA also states that it can “determine a control to be ‘adequately

demonstrated’ even if it is new and not yet in widespread commercial use,” and “may

reasonably project the development of a control system at a future time and establish

requirements that take effect at that time.” App.4a; 89 Fed. Reg. at 39,801.

Coal-fired power plants that make a federally enforceable commitment to

retire “before January 1, 2039” comprise the second subcategory. App.4a; 89 Fed.

Reg. at 39,801. The BSER for these plants is “co-firing with natural gas, at a level of

40 percent of the unit’s annual heat input.” App.4a; 89 Fed. Reg. at 39,801. EPA

“assumes” existing coal-fired plants that self-select into this group will begin

“work[ing]” toward co-firing by June 2024 (again, already in the past), App.96a; 89

Fed. Reg. at 39,893, and requires them to apply 40% natural gas co-firing before

January 1, 2030, App.4a; 89 Fed. Reg. at 39,801.

The third option—the so-called “applicability exemption”—covers any existing

coal-fired power plant that makes a federally enforceable commitment “to

permanently cease operation before January 1, 2032.” App.8a; 89 Fed. Reg. at 39,805.

So long as they retire before 2032, these plants “are not regulated by” the Rule and,

therefore, need not implement any new 90% CCS or co-firing technologies. App.46a;

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89 Fed. Reg. at 39,843. However, the Final Rule does impose certain reporting

requirements, purportedly to allow EPA to make sure they stay on schedule to retire.

App.264a; 89 Fed. Reg. at 40,061.

The Final Rule gives States twenty-four months, a clock that is already ticking,

to develop plans with performance standards for existing plants. See App.200a; 89

Fed. Reg. at 39,997.

C. Applicant NMA is a national trade association representing the interests of

over 250 corporations and organizations involved in aspects of mining, including

producers, transporters, and consumers of coal, before Congress, federal agencies, the

judiciary, and the media. Applicant America’s Power is a national trade association

that advocates exclusively on behalf of the U.S. coal fleet and its supply chain, at both

the federal and state level. Electricity generators, coal producers, transportation

companies, and equipment suppliers in the coal supply chain comprise America’s

Power’s members. Both Applicants and their members have an interest in supporting

existing coal-fired power plants and their suppliers, which collectively ensure that

the Nation’s electricity supply is continuous, affordable, reliable, dispatchable, and

secure.

On May 9, 2024, NMA and America’s Power filed a petition for review in the

D.C. Circuit, see Case No.24-1124 at Dkt.2053706, and a stay motion on May 24, 2024,

see Case No.24-1120 at Dkt.2056359. Many other parties, including 27 states, also

challenged the Final Rule and sought a stay.

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On July 19, 2024, a D.C. Circuit panel denied all motions for a stay of the Final

Rule, App.268a–70a, in a brief order.

The D.C. Circuit first concluded without

analysis that the petitioners had not established their likelihood of success on the

merits “given the record in this case,” including because, in the D.C. Circuit’s view,

“this case [does not] implicate a major question under” West Virginia. App.269a. The

D.C. Circuit then briefly held that the petitioners failed to establish irreparable harm

because (it assumed) this case will be resolved before the compliance deadlines arrive,

and the only consequence of failure to submit a state plan is the promulgation of a

federal plan that “the States can replace with their own plans later.” Id. Further,

the D.C. Circuit reasoned that, “[t]o the extent petitioners claim harm due to the need

for long-term planning, a stay will not help because the risk remains that the distant

deadlines in EPA’s rule will come back into force at the end of the case.” Id.

REASONS FOR GRANTING THE APPLICATION

This Court “may issue all necessary and appropriate process to postpone the

effective date of an agency action,” including by staying an agency order under review

in a case still pending before a court of appeals. 5 U.S.C. § 705; see also 28 U.S.C.

§§ 1254, 2101; West Virginia, 577 U.S. 1126; Nken v. Mukasey, 555 U.S. 1042 (2008)

(mem.). This Court granting such stay relief is appropriate where there is “(1) a

reasonable probability that four Justices will consider the issue sufficiently

meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will

vote to reverse the judgment below; and (3) a likelihood that irreparable harm will

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result from the denial of a stay.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010)

(per curiam); see West Virginia, 577 U.S. 1126; see also Nken v. Holder, 556 U.S. 418,

428–29 (2009). Applicants here have satisfied these standards, and this Court should

thus grant a stay pending resolution of Applicants’ challenge to the Final Rule.

I.

This Court Would Likely Grant Review And Reverse If The D.C.

Circuit Upholds The Final Rule

If the D.C. Circuit were to deny Applicants’ petition for review on the merits,

that decision would plainly involve “an important question of federal law” that has

been decided “in a way that conflicts with” this Court’s decision in West Virginia.

Rule 10(c).

Whether EPA will be able to achieve today what West Virginia held the agency

had no authority to do—shifting the Nation’s power grid away from coal-fired

generation—is unquestionably an exceptionally important issue that this Court is

likely to review. Rule 10(c). Virtually every person in our Nation depends on the

electricity grid for their life and livelihood. From keeping the lights on to sustaining

complex systems for communication, transportation, medical care, banking, and

more, access to affordable, reliable electricity forms the bedrock of our modern society.

As it is, the electricity grid is under unprecedented strain, see infra pp.28–29, which

already threatens to leave vulnerable communities in the dark and without heat or

air conditioning. Against this backdrop, whether EPA may unilaterally transform

the grid under its limited Section 111(d) authority, in direct contravention of this

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Court’s explicit holding in West Virginia and the statutory text, is a matter of grave

national importance that this Court is likely to review.

A majority of the Justices of this Court are also likely to vote to reverse any

D.C. Circuit decision upholding the Final Rule under West Virginia and the plain text

of Section 111(d). The Final Rule requires coal-fired plants to choose between three

unlawful options: (1) implement CCS technology at a continuous capture rate of 90%

CO2 from an entire unit before 2032; (2) shift 40% of the plant’s energy production to

natural gas by 2030 and then shut down before 2039; or (3) shut down by 2032. See

App.4a; 89 Fed. Reg. at 39,801. Each of these options is unlawful.

A. 90% CCS by 2032. This “option” is not an “adequately demonstrated” BSER

because no power plant has ever been able to apply CCS at that level for more than

a few days. See App.271a; 42 U.S.C. § 7411(a)(1). The sole large U.S. commercial

electric generating plant that has ever been equipped with CCS—the Petra Nova

project—involves only a “slipstream” CCS application (only 37% of the unit’s exhaust

is directed to the capture system) and, therefore, the system is designed to capture

only 33% of the unit’s emissions. See EPA Memo, Review of the Current Status of

the Carbon Capture and Sequestration Projects at 21–24 (Mar. 2018), Doc. ID No.

EPA-HQ-OAR-2013-0495-11947. Moreover, while EPA’s Final Rule assumes that a

plant will run its capture system on its own power, Petra Nova relies on a separate

natural gas combustion turbine to power the capture system. Comment from Tawny

Bridgeford, National Mining Association at 25 (Aug. 8, 2023) (“NMA Comments”),

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Doc. ID No. EPA-HQ-OAR-2023-0072-0695. That gas turbine itself emits CO2 that

offsets a sizable portion of the emission reductions achieved from the coal unit. Id.

Just one large plant has successfully applied full-unit 90% CO2 capture at all—

the Boundary Dam Power Station in Canada—but even that one example was fleeting

and ultimately undermines the Final Rule. After just “a few days” performing at this

level, technical issues caused the facility to reduce its capture rate. Comment from

Jeff Jickling, SaskPower (Aug. 4, 2023), Doc. ID No. EPA-HQ-OAR-2023-0072-0687

(“SaskPower Comments”). SaskPower, which owns Boundary Dam, explained in

comments on EPA’s proposed rule that EPA mischaracterized its level of performance

by claiming a 90% reduction, stating that “only a portion of the total flue gas from

[Boundary Dam Unit 3] can be processed by the CCS facility” and the system now

only targets 65% to 70% of total Boundary Dam Unit 3 emissions. See id.

Continuous 90% CCS will impose exorbitant costs on existing coal-fired power

plants, which provides an independent basis to conclude that 90% CCS is not the

BSER under Section 111(d).

See App.271a; 42 U.S.C. § 7411(a)(1).

Under the

statute’s plain terms, EPA’s determination of what constitutes a BSER must

consider, among other things, the “cost of achieving such reduction.” App.271a; 42

U.S.C. § 7411(a)(1). Here, the astronomical costs to accomplish 90% CCS defy any

reasonable conclusion that it was set after reasonably “taking into account the cost of

achieving such reduction.” By way of illustration, Southern Company’s Kemper

project—intended to be the Nation’s first commercial-scale coal plant to capture a

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substantial portion of CO2 emissions—was supposed to be operational by May 2014,

at an estimated cost of $2.4 billion. See NMA Comments at 26. But the project spent

over $7.5 billion by June 2017, and eventually demolished its CO2 capture system.

Id. at 26–27. Indeed, EPA conceded less than six years ago that “the high cost of

CCS, including the high capital costs of purchasing and installing CCS technology

and the high costs of operating it, including high parasitic load requirements, prevent

CCS or partial CCS from qualifying as BSER on a nationwide basis.” 84 Fed. Reg.

32,520, 32,548 (July 8, 2019).

If the D.C. Circuit upholds the Final Rule, this Court is likely to reverse for the

additional and independently sufficient reason that the agency’s interpretation of the

phrase “has been adequately demonstrated” is inconsistent with the CAA’s text and

context. See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024). “Courts

must exercise their independent judgment in deciding whether an agency has acted

within its statutory authority, as the [Administrative Procedure Act (“APA”)]

requires.” Id. Here, EPA asserts that a “BSER can be forward-looking in nature and

take into account anticipated improvements in control technologies.” App.4a; 89 Fed.

Reg. at 39,801 (emphasis added). EPA asserts that it “may reasonably project the

development of a control system at a future time and establish requirements that

take effect at that time.” App.4a; 89 Fed. Reg. at 39,801. Yet, the CAA constrains

EPA to determine the BSERs that are “adequately demonstrated,” App.271a; 42

U.S.C. § 7411(a)(1)—not “anticipated” or “reasonably project[ed],” App.4a; 89 Fed.

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Reg. at 39,801. A technology that has never been successfully applied for more than

“a few days,” SaskPower Comments, supra, has not been “demonstrated” at all, let

alone “adequately,” see App.271a, 273a; 42 U.S.C. §§ 7411(a)(1), (d)(1). By way of this

atextual reading, EPA oversteps the narrow bounds of authority delineated by

Congress in these provisions. Given that it is “the responsibility of the court to decide

whether the law means what the agency says,” this Court is highly likely to reverse

a D.C. Circuit ruling that endorses EPA’s atextual interpretation. See Loper Bright

Enters., 144 S. Ct. at 2261 (quoting Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 109

(2015) (Scalia, J., concurring in judgment)).

B. 40%-Natural-Gas-Co-Firing-And-Then-Shutdown-By-2039.

The Rule’s

second option is equally unlawful. Forcing coal-fired units to convert to at least 40%

natural gas is “generation shifting.” West Virginia, 597 U.S. at 728–29. This “option”

unlawfully imposes a mandate for plants to shift from one fuel resource to another

and then shut down in favor of other types of energy—precisely the sort of energytype change this Court explained would be unlawful. See id. at 731. “There is little

reason to think Congress assigned” to EPA “such decisions” as to “how much of a

switch from coal to natural gas is practically feasible.” Id. at 729. By forcing coal

plants to shift to gas and then close, the Final Rule is in even clearer conflict with

West Virginia than the Clean Power Plan. Even the Clean Power Plan was built on

a trading program, not a direct mandate to shift from one resource to another and

then shut down. See id. And if there is any doubt that this option violates West

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Virginia, requiring plants to shut down before 2039 alone constitutes unlawful

generation shifting because some other type of resource will need to replace the one

retired to maintain electricity supply. See id. at 728 & n.3.

This option is also arbitrary and capricious, reflecting EPA’s failure to

“examine the relevant data and articulate a satisfactory explanation for its action.”

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (quoting Motor Vehicle

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

EPA claims most coal plants already have access to natural gas, and some use natural

gas, see Case No.24-1120, Dkt.2059170, at 79–80, but its statistics are misleading

because only 4% burn gas now for generation, see NMA Comments at 48; see

Comment from Michelle Bloodworth, America’s Power at 13–14 (Aug. 8, 2023), Doc.

ID No. EPA-HQ-OAR-2023-0072-0656.

The rest use gas only for startup, and

extensive, costly changes would be necessary to develop sufficient gas pipeline

capacity to co-fire at 40%. Id.; accord EPA, Regulatory Impact Analysis at Table 314 (Apr. 2024), Doc. ID No. EPA-HQ-OAR-2023-0072-8913.

C. Shut-Down-By-2032. EPA also violated the prohibition against requiring

generation shifting through the “option” of coal-fired power plants retiring before

2032. See West Virginia, 597 U.S. at 732. Congress has not authorized EPA to decide

whether coal plants should “cease making power,” id. at 728, thereby “forc[ing] a

nationwide transition away from the use of coal to generate electricity,” id. at 735.

All Section 111(d) permits EPA to do is “guide States in ‘establish[ing] standards of

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performance’ for ‘existing source[s].’” Id. at 728 n.3 (alteration in original) (quoting

42 U.S.C. § 7411(d)(1)). The Final Rule far exceeds this limited, well-defined scope of

authority by way of a Hobson’s choice, providing coal-fired generators with theoretical

options that can have only one practical result: close their doors by 2032, shifting

generation to other sources of electricity.

II.

Applicants And Their Members Will Suffer Irreparable Harm If This

Court Does Not Grant A Stay

Applicants and their members are “likely to suffer irreparable harm” if this

Court does not stay EPA’s Final Rule—harms indistinguishable from those presented

to this Court by applicants seeking a stay of the Clean Power Plan. See Winter v.

Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). These harms justify a stay here

for the same reasons that prevailed before the Supreme Court in 2016.

A. Monetary losses that “cannot be recouped” constitute “irreparable harm.”

Philip Morris USA Inc. v. Scott, 561 U.S. 1301, 1304 (2010) (Scalia, J., in chambers);

Ohio v. EPA, 144 S. Ct. 2040, 2053 (2024) (substantial, “nonrecoverable” compliance

“costs” constitute irreparable harm (citation omitted)). The APA does not permit

recovery of money damages against an offending agency, 5 U.S.C. § 702, and, thus,

there is “no guarantee of eventual recovery” of losses resulting from a Final Rule

issued by EPA, Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758,

765 (2021) (per curiam); see Ohio, 144 S. Ct. at 2053; Thunder Basin Coal Co. v. Reich,

510 U.S. 200, 220–21 (1994) (Scalia J., concurring) (“[C]omplying with a regulation

later held invalid almost always produces the irreparable harm of nonrecoverable

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compliance costs.”).

Further, significant “disruption” and “disorgan[ization]” of

businesses and their “valuable goodwill” by unlawful regulation also constitutes an

“irreparable injury to [the] business[es].” Columbia Broad. Sys. v. United States, 316

U.S. 407, 409, 414, 419, 423 (1942).

B. Applicants and their members will be irreparably harmed in multiple ways

if this Court does not stay the Final Rule. These harms are the same in all material

respects to the harms that the Clean Power Plan would have caused had this Court

not stayed the Plan in 2016. See Stay App. at 38–48, West Virginia, No.15A773; Stay

App. at 12–21, Basin Elec., No.15A776. Like the Clean Power Plan, EPA designed

the Final Rule to force coal-fired power plants to close on an EPA-mandated

timeframe, this time imposing mandates that will inevitably lead to the retirement

of most—if not all—coal-fired plants.

App.447a–48a (Schwartz Decl. ¶¶ 6–9);

App.305a (Braithwaite Decl. ¶ 17); App.308a (id. ¶ 24). Without a stay, the Final

Rule’s generation-shifting effects will be irreversibly in progress long before the D.C.

Circuit and this Court can determine its lawfulness.

Even under an expedited

briefing schedule, see App.269a–70a, the D.C. Circuit’s review is likely to extend well

into 2025, with this Court’s review likely extending into 2026.

Notably, EPA itself “assumes” generating facilities will begin the “feasibility

work” under the Final Rule this Summer to meet the Rule’s two-year timeline for

developing state plans. App.77a; 89 Fed. Reg. at 39,874. A facility’s lone hope of

remaining operational under the Rule is to act immediately.

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The “planning,

engineering, and other efforts” a plant must undertake to even attempt to install 90%

CCS before 2032 would need to include not only the “development of the carbon

capture equipment,” but also the “necessary equipment, infrastructure, technology,

permitting, and establishing right-of-way access for the transport.” App.459a–63a

(Short Decl. ¶ 3); see App.296a–97a (Bloodworth Decl. ¶¶ 12–13); App.397a–98a

(McLennan Decl. ¶ 6); App.420a–24a (id. ¶¶ 43–52).

EPA itself recognizes that

plants must embark immediately on these efforts to have any chance of succeeding

under the Final Rule’s compressed timetable. See App.77a; 89 Fed. Reg. at 39,874;

see also App.296a–97a (Bloodworth Decl. ¶¶ 12–13). By the time the D.C. Circuit and

this Court can rule on the Final Rule’s legality, it would be too late for a plant to

recoup the expended costs. App.296a–97a (Bloodworth Decl. ¶¶ 12–13); App.450a

(Schwartz Decl. ¶¶ 12–13); App.459a–63a (Short Decl. ¶ 3); App.425a (McLennan

Decl. ¶ 55); App.426a–27a (id. ¶¶ 58–59); App.429a–30a (id. ¶ 64); App.437a (id.

¶ 77); App.438a (id. ¶ 79); App.440a–41a (id. ¶¶ 85–88).

The irreversible decision to attempt to install 90% CCS will impose immediate,

exorbitant, and nonrecoverable costs.

See App.357a–58a (McCollam Decl. ¶ 11);

App.363a–67a (id. ¶¶ 20–26); App.425a (McLennan Decl. ¶ 55); App.427a–28a (id.

¶ 60); App.429a–30a (id. ¶ 64). Retrofitting even one unit at a large-scale coal-fired

facility with a post-combustion CO2 capture plant could cost in excess of $2 billion,

excluding the substantial costs entailed in operation, maintenance, transportation,

and sequestration, among others. App.459a–63a (Short Decl. ¶ 3); see App.425a–28a

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(McLennan Decl. ¶¶ 56–61); App.363a (McCollam Decl. ¶ 20); App.364a (id. ¶ 22).

For plants that opt for natural gas co-firing—which option, again, would permit them

only to operate for approximately thirteen more years—the necessary investments

will be similarly prohibitive and irreversible, in the tens of millions of dollars for a

single plant. App.459a–63a (Short Decl. ¶ 3); App.428a–29a (McLennan Decl. ¶¶ 62–

63); App.364a–67a (McCollam Decl. ¶¶ 22–26). Past experience underscores the need

for these costly investments to proceed immediately: Minnkota has spent nearly a

decade designing the state-of-the-art “Project Tundra” CCS facility, and anticipates

a fourteen-year timeline from project conception to commercial operation (if the

project, which was not designed to capture CO2 from all units, is able to proceed at

all). App.406a–07a (McLennan Decl. ¶¶ 22–24). Indeed, it took four years for Project

Tundra just to obtain the Class VI permit required to install pipelines and other

essential equipment to sequester CO2 underground. App.423a–24a (id. ¶ 51). Any

delay would reduce a plant’s chance of success in complying with the Final Rule from

negligible to nonexistent.

Most power plants will not even attempt to install 90% CCS due to its

exorbitant costs and EPA’s impossible timeframe, and will, instead, make irreversible

decisions to retire well before the D.C. Circuit and this Court can decide this issue on

the merits. See App.397a–98a (McLennan Decl. ¶ 6); App.441a (id. ¶¶ 86–88); see

also App.448a–50a (Schwartz Decl. ¶¶ 10–13). A plant’s decision to retire initiates a

process that cannot be reversed without substantial costs, if it can be reversed at all.

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See App.372a (McCollam Decl. ¶¶ 34–41). EPA’s own modeling projects that eleven

coal-fired generating units and an industrial coal-fired boiler will have to retire in the

near term—retirements that can be accomplished only through a series of irrevocable

decisions. The first of these dominoes must fall immediately so that the last may do

so within EPA’s compressed timetable, imposing substantial harm on both the plants’

owners, their downstream customers, and their upstream coal suppliers. App.448a–

50a (Schwartz Decl. ¶¶ 10–13); App.456a (id. ¶ 22); App.297a–99a (Bloodworth Decl.

¶¶ 14–18); App.315a (Bridgeford Decl. ¶ 8).

More plants are guaranteed to follow, as few (if any) plants can bear the

exorbitant costs of implementing 90% CCS under the Final Rule’s terms.

See

App.459a–63a (Short Decl. ¶ 3). To illustrate, take the Prairie State Energy Campus

in downstate Illinois, serving 2.5 million families in communities across eight states

and wholly owned by non-profit public utilities. App.459a (id. ¶ 2). Retrofitting

Prairie State’s two units to comply with the Rule would cost a minimum of $300

million in up-front expenditures on preliminary evaluations, design, and permitting

over the next twenty-four months; approximately $4 billion for the CCS retrofit itself;

and more than $176 million per unit, per year in added annual operating and

maintenance costs—all without any assurance that these massive efforts and

exorbitant costs would keep the generating units online after December 31, 2038.

App.459a–63a (id. ¶ 3). These costs and risks are beyond unreasonable. They are

unbearable. See id.

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Ironically, the Final Rule would likely shut down the few CCS projects now

underway. Minnkota, for instance, has been working since 2015 to employ CCS—

efforts that, if successful, will produce the world’s largest and most effective CCS

project ever. See App.405a–07a (McLennan Decl. ¶¶ 21–24). But because that project

is designed to capture only about two-thirds of the exhaust from the facility it will

serve, even that best-ever achievement would fall short of the unproven standard set

forth in EPA’s Final Rule. App.405a–06a (id. ¶ 21). The company would likely have

to abandon the project absent a stay, forfeiting $90 million in engineering and

development costs already spent. App.397a–98a (id. ¶ 6); App.407a (id. ¶ 24).

The Final Rule’s forced plant closures will also devastate the Nation’s coal

mining industry, including Applicants’ members, in ways that cannot be reversed

when the D.C. Circuit or this Court invalidates the Final Rule. In fact, EPA’s own

modeling indicates that the Final Rule will force eleven units to close before 2028 that

currently total 6,620 megawatts (MW) of capacity. App.456a (Schwartz Decl. ¶ 22

Ex. 1); App.315a–16a (Bridgeford Decl. ¶ 9); App.296a (Bloodworth Decl. ¶ 10). But

a stable and continuing domestic market is essential to sustain coal mining

operations, as well as the livelihoods of the hundreds of thousands of people employed

in mining or adjacent industries.

See App.315a–16a (Bridgeford Decl. ¶¶ 8–9);

App.307a–08a (Braithwaite Decl. ¶ 23); App.434a–35a (McLennan Decl. ¶ 72),

App.287a–90a (Babcock Decl. ¶¶ 13–20). By gutting demand for coal, the Final Rule

will throw this market into chaos. App.307a (Braithwaite Decl. ¶ 22); App.308a (id.

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¶ 24). As coal plants close, the mines that had supplied coal to them will close too.

App.307a (Braithwaite Decl. ¶¶ 21–22); App.429a (McLennan Decl. ¶ 63); App.434a

(id. ¶ 72); App.439a (id. ¶ 81); App.321a–22a (Friez Decl. ¶ 8); App.323a–24a (id.

¶ 14); App.325a–26a (id. ¶¶ 19–21); App.287a–88a (Babcock Decl. ¶¶ 13–16). This

will include mines dedicated solely to particular plants, which will be left without

alternative markets. See App.429a (McLennan Decl. ¶ 63); App.281a (Anderson Decl.

¶ 9); see also NAACO NR ¶ 14. For example, the Minnkota Power Cooperative’s

“mine-to-mouth” Milton R. Young Station (“Young Station”) is served cost-effectively

by nearby mines including BNI Coal, which would be devasted and likely forced to

close if Minnkota retired its Young Station. App.399a (McLennan Decl. ¶¶ 9–10);

App.429a (id. ¶ 63); App.439a (id. ¶ 81); see App.281a (Anderson Decl. ¶¶ 9–10).

Further, slashing demand for coal will depress coal prices, diminish revenue, and

force mines to scale back production and cut jobs in the near term, App.307a–08a

(Braithwaite Decl. ¶¶ 22–23); App.288a–90a (Babcock Decl. ¶¶ 16–20); App.319a–

20a (Friez Decl. ¶ 5), as well as stranding millions of dollars in investments, see

App.328a (Friez Decl. ¶ 29); App.296a–97a (Bloodworth Decl. ¶ 13).

Because of the Final Rule, mining operators will have to make immediate

decisions about whether to make existential investments in the infrastructure and

human capital that are vital to their continued operations. Like the utility sector,

the coal industry is highly capital intensive, and its investment decisions carry long

lead times. App.348a (Hathhorn Decl. ¶ 11); App.307a (Braithwaite Decl. ¶ 22);

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App.320a (Friez Decl. ¶ 6); App.324a (id. ¶ 16). These include investments in the

highly skilled, in-demand workforce necessary to operate mines safely. App.347a

(Hathhorn Decl. ¶ 5). The precipitous decline in coal demand will force operators

immediately to scale back or even eliminate these investments, setting in motion the

inevitable constriction or closure of these mines even if the D.C. Circuit, or this Court,

invalidates the Final Rule.

See App.307a–08a (Braithwaite Decl. ¶¶ 22–23);

App.308a–09a (id. ¶ 26); App.348a–49a (Hathhorn Decl. ¶¶ 9–12); App.286a–87a

(Babcock Decl. ¶ 11); App.321a–22a (Friez ¶ 8); App.323a–24a (id. ¶ 14); App.325a–

26a (id. ¶¶ 19–21); App.434a–35a (McLennan Decl. ¶ 72).

Again, as noted above, these irreparable harms are analogous in all material

respects to those that this Court considered in 2016, when it granted a stay of the

Clean Power Plan. See Stay App. at 38–48, West Virginia, No.15A773; Stay App. at

12–21, Basin Elec., No.15A776. It is just as true now as it was then that generation

utilities cannot “await the outcome of this litigation to undertake” the “large scale

projects” required to comply with the Rule, including “site selection,” “land/right-ofway acquisition,” “preliminary engineering,” “environmental assessment and

permitting,” “final engineering and design,” and “site construction,” in addition to

“environmental assessments or environmental impact statements” that might take

“years to complete.” Stay App. at 14–15, Basin Elec., No.15A776. It is also just as

true now as it was then that plants must make “near-term commitments to ensure

that new power facilities are operational to offset declining coal generation and

- 24 -

prepare for increases in natural gas and renewable generation,” and will suffer

“stranded costs from prematurely retired or artificially curtailed units,” “operational

disruptions,” and “increases in electricity prices.” Id. at 17, 20. And now, just as

then, the downstream effects of these decisions will include “cancellation of existing

coal and transportation contracts,” id. at 16, and “the closures of related coal mines,”

Stay App. at 46, West Virginia, No.15A773.

The D.C. Circuit misapplied this Court’s caselaw when it concluded that

Applicants’ members will not suffer irreparable harm during the pendency of this

litigation. According to the panel, “a stay will not help” Applicants’ members “because

the risk remains that the distant deadlines in EPA’s rule will come back into force at

the end of the case.”

App.269a.

Respectfully, the relevant inquiry is whether

“irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22

(citations omitted).

Applicants have shown that they will incur substantial,

nonrecoverable compliance costs in the near term if the Final Rule is not stayed,

which constitute irreparable harm under this Court’s precedent. See Ohio, 144 S. Ct.

at 2053; Ala. Ass’n of Realtors, 594 U.S. at 765; Thunder Basin Coal Co., 510 U.S.

at 220–21 (Scalia, J., concurring). Accordingly, they have shown that they are “likely”

to suffer irreparable injury without a stay. See Winter, 555 U.S. at 22. As the States

explained when EPA raised this same argument during the Clean Power Plan stay

litigation before this Court, in the unlikely event that a rule like the Clean Power

Plan survives judicial review, principles of fairness would support tolling the rule’s

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compliance deadlines. See Stay App. Reply, West Virginia, No.15A773, at 32. This

Court was not swayed by EPA’s assertion in 2016 that a stay would not necessarily

“forestall alleged harm arising from future deadlines.” Stay App. Opp’n at 71, West

Virginia, No.15A773. The D.C. Circuit’s unreasoned acceptance of that assertion now

serves only to demonstrate that court’s reluctance to follow this Court’s guidance from

the Clean Power Plan litigation.

III.

The Final Rule’s Devastating Consequences Are Contrary To The

Public Interest

A. The public interest also weighs strongly for a stay. In determining whether

to grant a stay, this Court considers the likely harm to the movant absent such relief,

whether issuing the stay would “substantially injure” the other parties, and where

the public interest lies. Nken, 556 U.S. at 426. The Court must “balance the equities”

by “explor[ing] the relative harms to applicant and respondent, as well as the

interests of the public at large.” Trump v. Int’l Refugee Assistance Project, 582 U.S.

571, 580 (2017) (per curiam) (citation omitted). Where, as here, the “Government is

the opposing party,” the interests of the nonmoving party and the public interest

factors “merge.” Nken, 556 U.S. at 425.

B. Here, the public interest weighs heavily in favor of staying EPA’s Final Rule

while appellate proceedings are pending for much the same reasons that were before

this Court in 2016 when it stayed the Clean Power Plan.

Absent a stay, the Rule’s mandated, irreversible mine closures and operational

reductions will eliminate hundreds of well-paying jobs, particularly in coal country

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counties where jobs are scarce, and well-paying ones rare. The coal mining industry

supports 100,000 direct mining industry jobs, and indirectly creates approximately

224,000 jobs. App.311a–12a (Bridgeford Decl. ¶ 3). Coal mining jobs—which rank

among the highest-paid blue-collar jobs in the country—often pay well more than the

average salary in coal-mining areas. Id. In counties where coal mining takes place,

the industry supports a significant percentage of all jobs, both directly and indirectly.

See App.434a–35a (McLennan Decl. ¶ 72). CONSOL employs 2,039 people, and PEC

provides high-paying jobs to 3,400 U.S. families. App.303a (Braithwaite Decl. ¶ 9);

App.347a (Hathhorn Decl. ¶ 2). Similarly, NTEC employs about 1,400 people at four

mines nationwide, remitting approximately $180,000,000 in annual wages and

benefits. App.283a–84a (Babcock Decl. ¶¶ 3–4). NTEC creates thousands of other

jobs by hiring contractors, procuring goods and services, and providing other

community supports in areas where it operates mines. See App.289a (id. ¶ 18).

The coal industry provides other significant benefits for communities and

States that have substantial coal resources in their borders. Millions of dollars in

federal, state, and local taxes are attributable to mining jobs, and coal mining directly

contributed over $31 billion to GDP in 2023. App.311a–12a (Bridgeford Decl. ¶ 3).

Mining companies also pay substantial royalties to state and local governments,

which payments will end with the closure of the mines. App.281a–83a (Anderson

Decl. ¶ 11).

In 2023 alone, NACCO NR’s Falkirk Mine and Freedom Mine

respectively paid approximately $2,500,000 and $4,500,000 in coal severance taxes to

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the State of North Dakota. App.324a (Friez Decl. ¶ 15). Also in 2023, NTEC remitted

about $225,000,000 in royalties and taxes to the Navajo Nation (NTEC’s sole

shareholder), the federal government, the States of Wyoming and Montana, and

county governments. App.283a–85a (Babcock Decl. ¶¶ 4–8). These royalties and

taxes, so vital to sustain state and local governments and the Navajo Nation, will

cease if the Final Rule forces mining operations to shut down. See id.; App.281a–82a

(Anderson Decl. ¶ 11).

A stay is also necessary to protect the Nation’s electricity grid, which the Final

Rule jeopardizes.

Even before the Final Rule, grid reliability regulators and

operators were raising alarms that coal plants were being forced to close faster than

they could be reliably replaced. See App.464a–65a (Short Decl. ¶ 5); App.299a–300a

(Bloodworth Decl. ¶¶ 19–21); see also App.429a–32a (McLennan Decl. ¶¶ 64–68). In

joint comments filed by Midcontinent Independent System Operator, Inc. (“MISO”),

PJM Interconnection, LLC (“PJM”), Electric Reliability Council of Texas, Inc.

(“ERCOT”), and Southwest Power Pool, Inc. (“SPP”), these entities warned that “the

Proposed Rule as presently configured, as well as its timing, have the potential to

materially and adversely impact electric grid reliability,” and, “when combined with

other EPA rules and other policy actions, could well exacerbate the disturbing trend

and growing risk wherein the pace of retirements of generation with attributes

needed to ensure grid reliability is rapidly exceeding the commercialization of new

resources capable of providing those reliability attributes.” Comment from Craig

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Glazer et al., Joint Comments of ERCOT, MISO, PJM, and SPP at 1 (Aug. 8, 2023),

Doc. ID No. EPA-HQ-OAR-2023-0072-0673; see Comment from Michelle Bloodworth,

America’s Power at 4–7 (Dec. 20, 2023), Doc. ID No. EPA-HQ-OAR-2023-0072-8175.

After EPA released the Final Rule, SPP reiterated its concern that “limited

technological and infrastructure availability” combined with the Final Rule’s

“compliance time frame will have deleterious impacts including the retirement of, or

the decision not to build, thousands of MWs of baseload thermal generation.” SPP,

Statement on the Recent EPA Greenhouse Gas Emissions Rule (May 20, 2024).† The

Final Rule will accelerate this distressing pace, even as judicial review is pending,

risking many electricity consumers’ access to reliable and affordable electricity.

App.464a–65a (Short Decl. ¶ 5); see App.431a–32a (McLennan Decl. ¶¶ 66–68). The

Rule’s closures will also force consumers to pay more for power, especially during

extreme weather events, and as skyrocketing demand for electricity strains an

already-vulnerable system in transition. See App.463a–64a (Short Decl. ¶¶ 4–5);

App.286a (Babcock Decl. ¶ 10); App.432a–34a (McLennan Decl. ¶¶ 69–70).

The States articulated analogous concerns to this Court when seeking a stay

of the Clean Power Plan, noting the forced “shutdown” of coal-fired “plants will cause

the closures of related coal mines, resulting in the loss of jobs in some of this country’s

most economically depressed, rural communities.” See Stay App. at 46, West Virginia,

† Available at https://www.spp.org/documents/71677/spp%20statement%20on%20epa

%20final%20ghg%20rule%20202405020.pdf.

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No.15A773. Like the Clean Power Plan, the Final Rule will have “profound adverse

human impacts . . . on the nation’s citizens during the pendency of this litigation,”

including in the form of “direct employment losses of [thousands of] jobs in the electric

power and coal mining sectors.” Stay App. at 20, Basin Elec., No.15A776. These

harms are as compelling now as they were in 2016, and demand a stay here.

Finally, a stay will harm neither EPA nor the public. The public interest favors

stopping illegal agency rules like the Final Rule (and the Clean Power Plan), and

EPA lacks any protectable interest in keeping such rules in place. The public is not

harmed by ensuring that the existing coal-fired power plants so vital to this country’s

economy and electricity grid remain operational, instead of being forced to choose

between closing or wagering billions of dollars on a likely impossible gamble trying

to install and apply 90% CCS technology by 2032.

CONCLUSION

This Court should stay the Final Rule pending the D.C. Circuit’s review on the

merits of Applicants’ petition for review.

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Respectfully submitted,

CARROLL WADE MCGUFFEY III

TROUTMAN PEPPER

HAMILTON SANDERS LLP

600 Peachtree St. N.E.

Suite 3000

Atlanta, GA 30308

/s/ Misha Tseytlin

MISHA TSEYTLIN

Counsel of Record

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe, Suite 3900

Chicago, Illinois 60606

(608) 999-1240

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

July 2024

- 31 -

APPENDIX

i

TABLE OF CONTENTS

Page

APPENDIX A – 89 FED. REG. 39,798 (MAY 9, 2024) . . . . . . . . . . . . . . . . 1a

APPENDIX B – DENIAL OF STAY OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT, FILED JULY 19, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268a

APPENDIX C – 42 U.S.C. § 7411 – STANDARDS OF

PERFORMANCE FOR NEW STATIONARY SOURCES . . . . . . . . 271a

APPENDIX D – DECLARATIONS:

ANDERSON DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279a

BABCOCK DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283a

BLOODWORTH DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292a

BRAITHWAITE DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301a

BRIDGEFORD DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310a

FRIEZ DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .319a

HATHHORN DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347a

MCCOLLAM DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350a

MCLENNAN DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395a

SCHWARTZ DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443a

SHORT DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459a

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ADDRESSES: The EPA has established a

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 60

[EPA–HQ–OAR–2023–0072; FRL–8536–01–

OAR]

RIN 2060–AV09

New Source Performance Standards

for Greenhouse Gas Emissions From

New, Modified, and Reconstructed

Fossil Fuel-Fired Electric Generating

Units; Emission Guidelines for

Greenhouse Gas Emissions From

Existing Fossil Fuel-Fired Electric

Generating Units; and Repeal of the

Affordable Clean Energy Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection

Agency (EPA) is finalizing multiple

actions under section 111 of the Clean

Air Act (CAA) addressing greenhouse

gas (GHG) emissions from fossil fuelfired electric generating units (EGUs).

First, the EPA is finalizing the repeal of

the Affordable Clean Energy (ACE) Rule.

Second, the EPA is finalizing emission

guidelines for GHG emissions from

existing fossil fuel-fired steam

generating EGUs, which include both

coal-fired and oil/gas-fired steam

generating EGUs. Third, the EPA is

finalizing revisions to the New Source

Performance Standards (NSPS) for GHG

emissions from new and reconstructed

fossil fuel-fired stationary combustion

turbine EGUs. Fourth, the EPA is

finalizing revisions to the NSPS for GHG

emissions from fossil fuel-fired steam

generating units that undertake a large

modification, based upon the 8-year

review required by the CAA. The EPA

is not finalizing emission guidelines for

GHG emissions from existing fossil fuelfired stationary combustion turbines at

this time; instead, the EPA intends to

take further action on the proposed

emission guidelines at a later date.

DATES: This final rule is effective on July

8, 2024. The incorporation by reference

of certain publications listed in the rules

is approved by the Director of the

Federal Register as of July 8, 2024. The

incorporation by reference of certain

other materials listed in the rule was

approved by the Director of the Federal

Register as of October 23, 2015.

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docket for these actions under Docket ID

No. EPA–HQ–OAR–2023–0072. All

documents in the docket are listed on

the https://www.regulations.gov

website. Although listed, some

information is not publicly available,

e.g., Confidential Business Information

(CBI) or other information whose

disclosure is restricted by statute.

Certain other material, such as

copyrighted material, is not placed on

the internet and will be publicly

available only in hard copy form.

Publicly available docket materials are

available electronically through https://

www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Lisa

Thompson (she/her), Sector Policies and

Programs Division (D243–02), Office of

Air Quality Planning and Standards,

U.S. Environmental Protection Agency,

109 T.W. Alexander Drive, P.O. Box

12055, Research Triangle Park, North

Carolina 27711; telephone number:

(919) 541–5158; and email address:

thompson.lisa@epa.gov.

SUPPLEMENTARY INFORMATION:

Preamble acronyms and

abbreviations. Throughout this

document the use of ‘‘we,’’ ‘‘us,’’ or

‘‘our’’ is intended to refer to the EPA.

The EPA uses multiple acronyms and

terms in this preamble. While this list

may not be exhaustive, to ease the

reading of this preamble and for

reference purposes, the EPA defines the

following terms and acronyms here:

ACE Affordable Clean Energy rule

BSER best system of emissions reduction

Btu British thermal unit

CAA Clean Air Act

CBI Confidential Business Information

CCS carbon capture and sequestration/

storage

CCUS carbon capture, utilization, and

sequestration/storage

CO2 carbon dioxide

DER distributed energy resources

DOE Department of Energy

EEA energy emergency alert

EGU electric generating unit

EIA Energy Information Administration

EJ environmental justice

E.O. Executive Order

EPA Environmental Protection Agency

FEED front-end engineering and design

FGD flue gas desulfurization

FR Federal Register

GHG greenhouse gas

GW gigawatt

GWh gigawatt-hour

HAP hazardous air pollutant

HRSG heat recovery steam generator

IIJA Infrastructure Investment and Jobs Act

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IRC Internal Revenue Code

kg kilogram

kWh kilowatt-hour

LCOE levelized cost of electricity

LNG liquefied natural gas

MATS Mercury and Air Toxics Standards

MMBtu/h million British thermal units per

hour

MMT CO2e million metric tons of carbon

dioxide equivalent

MW megawatt

MWh megawatt-hour

NAAQS National Ambient Air Quality

Standards

NESHAP National Emission Standards for

Hazardous Air Pollutants

NGCC natural gas combined cycle

NOX nitrogen oxides

NSPS new source performance standards

NSR New Source Review

PM particulate matter

PM2.5 fine particulate matter

RIA regulatory impact analysis

TSD technical support document

U.S. United States

Organization of this document. The

information in this preamble is

organized as follows:

I. Executive Summary

A. Climate Change and Fossil Fuel-Fired

EGUs

B. Recent Developments in Emissions

Controls and the Electric Power Sector

C. Summary of the Principal Provisions of

These Regulatory Actions

D. Grid Reliability Considerations

E. Environmental Justice Considerations

F. Energy Workers and Communities

G. Key Changes From Proposal

II. General Information

A. Action Applicability

B. Where To Get a Copy of This Document

and Other Related Information

III. Climate Change Impacts

IV. Recent Developments in Emissions

Controls and the Electric Power Sector

A. Background

B. GHG Emissions From Fossil Fuel-Fired

EGUs

C. Recent Developments in Emissions

Control

D. The Electric Power Sector: Trends and

Current Structure

E. The Legislative, Market, and State Law

Context

F. Future Projections of Power Sector

Trends

V. Statutory Background and Regulatory

History for CAA Section 111

A. Statutory Authority To Regulate GHGs

From EGUs Under CAA Section 111

B. History of EPA Regulation of

Greenhouse Gases From Electricity

Generating Units Under CAA Section

111 and Caselaw

C. Detailed Discussion of CAA Section 111

Requirements

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VI. ACE Rule Repeal

A. Summary of Selected Features of the

ACE Rule

B. Developments Undermining ACE Rule’s

Projected Emission Reductions

C. Developments Showing That Other

Technologies Are the BSER for This

Source Category

D. Insufficiently Precise Degree of

Emission Limitation Achievable From

Application of the BSER

E. Withdrawal of Proposed NSR Revisions

VII. Regulatory Approach for Existing Fossil

Fuel-Fired Steam Generating Units

A. Overview

B. Applicability Requirements and Fossil

Fuel-Type Definitions for Subcategories

of Steam Generating Units

C. Rationale for the BSER for Coal-Fired

Steam Generating Units

D. Rationale for the BSER for Natural GasFired and Oil-Fired Steam Generating

Units

E. Additional Comments Received on the

Emission Guidelines for Existing Steam

Generating Units and Responses

F. Regulatory Requirement To Review

Emission Guidelines for Coal-Fired Units

VIII. Requirements for New and

Reconstructed Stationary Combustion

Turbine EGUs and Rationale for

Requirements

A. Overview

B. Combustion Turbine Technology

C. Overview of Regulation of Stationary

Combustion Turbines for GHGs

D. Eight-Year Review of NSPS

E. Applicability Requirements and

Subcategorization

F. Determination of the Best System of

Emission Reduction (BSER) for New and

Reconstructed Stationary Combustion

Turbines

G. Standards of Performance

H. Reconstructed Stationary Combustion

Turbines

I. Modified Stationary Combustion

Turbines

J. Startup, Shutdown, and Malfunction

K. Testing and Monitoring Requirements

L. Recordkeeping and Reporting

Requirements

M. Compliance Dates

N. Compliance Date Extension

IX. Requirements for New, Modified, and

Reconstructed Fossil Fuel-Fired Steam

Generating Units

A. 2018 NSPS Proposal Withdrawal

B. Additional Amendments

C. Eight-Year Review of NSPS for Fossil

Fuel-Fired Steam Generating Units

D. Projects Under Development

X. State Plans for Emission Guidelines for

Existing Fossil Fuel-Fired EGUs

A. Overview

B. Requirement for State Plans To Maintain

Stringency of the EPA’s BSER

Determination

C. Establishing Standards of Performance

D. Compliance Flexibilities

E. State Plan Components and Submission

XI. Implications for Other CAA Programs

A. New Source Review Program

B. Title V Program

XII. Summary of Cost, Environmental, and

Economic Impacts

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A. Air Quality Impacts

B. Compliance Cost Impacts

C. Economic and Energy Impacts

D. Benefits

E. Net Benefits

F. Environmental Justice Analytical

Considerations and Stakeholder

Outreach and Engagement

G. Grid Reliability Considerations and

Reliability-Related Mechanisms

XIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review and Executive

Order 14094: Modernizing Regulatory

Review

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act of 1995

(UMRA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

G. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks Populations and

Low-Income Populations

H. Executive Order 13211: Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use

I. National Technology Transfer and

Advancement Act (NTTAA) and 1 CFR

Part 51

J. Executive Order 12898: Federal Actions

To Address Environmental Justice in

Minority Populations and Low-Income

Populations and Executive Order 14096:

Revitalizing Our Nation’s Commitment

to Environmental Justice for All

K. Congressional Review Act (CRA)

XIV. Statutory Authority

I. Executive Summary

In 2009, the EPA concluded that GHG

emissions endanger our nation’s public

health and welfare.1 Since that time, the

evidence of the harms posed by GHG

emissions has only grown, and

Americans experience the destructive

and worsening effects of climate change

every day.2 Fossil fuel-fired EGUs are

the nation’s largest stationary source of

GHG emissions, representing 25 percent

of the United States’ total GHG

emissions in 2021.3 At the same time, a

range of cost-effective technologies and

approaches to reduce GHG emissions

from these sources is available to the

power sector—including carbon capture

and sequestration/storage (CCS), cofiring with less GHG-intensive fuels,

1 74 FR 66496 (December 15, 2009).

2 The 5th National Climate Assessment (NCA5)

states that the effects of human-caused climate

change are already far-reaching and worsening

across every region of the United States and that

climate change affects all aspects of the energy

system-supply, delivery, and demand-through the

increased frequency, intensity, and duration of

extreme events and through changing climate

trends.

3 https://www.epa.gov/ghgemissions/sourcesgreenhouse-gas-emissions.

PO 00000

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and more efficient generation. Congress

has also acted to provide funding and

other incentives to encourage the

deployment of various technologies,

including CCS, to achieve reductions in

GHG emissions from the power sector.

In this notice, the EPA is finalizing

several actions under section 111 of the

Clean Air Act (CAA) to reduce the

significant quantity of GHG emissions

from fossil fuel-fired EGUs by

establishing emission guidelines and

new source performance standards

(NSPS) that are based on available and

cost-effective technologies that directly

reduce GHG emissions from these

sources. Consistent with the statutory

command of CAA section 111, the final

NSPS and emission guidelines reflect

the application of the best system of

emission reduction (BSER) that, taking

into account costs, energy requirements,

and other statutory factors, is adequately

demonstrated.

Specifically, the EPA is first finalizing

the repeal of the Affordable Clean

Energy (ACE) Rule. Second, the EPA is

finalizing emission guidelines for GHG

emissions from existing fossil fuel-fired

steam generating EGUs, which include

both coal-fired and oil/gas-fired steam

generating EGUs. Third, the EPA is

finalizing revisions to the NSPS for GHG

emissions from new and reconstructed

fossil fuel-fired stationary combustion

turbine EGUs. Fourth, the EPA is

finalizing revisions to the NSPS for GHG

emissions from fossil fuel-fired steam

generating units that undertake a large

modification, based upon the 8-year

review required by the CAA. The EPA

is not finalizing emission guidelines for

GHG emissions from existing fossil fuelfired combustion turbines at this time

and plans to expeditiously issue an

additional proposal that more

comprehensively addresses GHG

emissions from this portion of the fleet.

The EPA acknowledges that the share of

GHG emissions from existing fossil fuelfired combustion turbines has been

growing and is projected to continue to

do so, particularly as emissions from

other portions of the fleet decline, and

that it is vital to regulate the GHG

emissions from these sources consistent

with CAA section 111.

These final actions ensure that the

new and existing fossil fuel-fired EGUs

that are subject to these rules reduce

their GHG emissions in a manner that is

cost-effective and improves the

emissions performance of the sources,

consistent with the applicable CAA

requirements and caselaw. These

standards and emission guidelines will

significantly decrease GHG emissions

from fossil fuel-fired EGUs and the

associated harms to human health and

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welfare. Further, the EPA has designed

these standards and emission guidelines

in a way that is compatible with the

nation’s overall need for a reliable

supply of affordable electricity.

reducing GHG emissions from these

affected sources can also help reduce

power sector pollution that might

otherwise result from the electrification

of other sectors of the economy.

A. Climate Change and Fossil Fuel-Fired

EGUs

These final actions reduce the

emissions of GHGs from new and

existing fossil fuel-fired EGUs. The

increasing concentrations of GHGs in

the atmosphere are, and have been,

warming the planet, resulting in serious

and life-threatening environmental and

human health impacts. The increased

concentrations of GHGs in the

atmosphere and the resulting warming

have led to more frequent and more

intense heat waves and extreme weather

events, rising sea levels, and retreating

snow and ice, all of which are occurring

at a pace and scale that threaten human

health and welfare.

Fossil fuel-fired EGUs that are

uncontrolled for GHGs are one of the

biggest domestic sources of GHG

emissions. At the same time, there are

technologies available (including

technologies that can be applied to

fossil fuel-fired power plants) to

significantly reduce emissions of GHGs

from the power sector. Low- and zeroGHG electricity are also key enabling

technologies to significantly reduce

GHG emissions in almost every other

sector of the economy.

In 2021, the power sector was the

largest stationary source of GHGs in the

United States, emitting 25 percent of

overall domestic emissions.4 In 2021,

existing fossil fuel-fired steam

generating units accounted for 65

percent of the GHG emissions from the

sector, but only accounted for 23

percent of the total electricity

generation.

Because of its outsized contributions

to overall emissions, reducing emissions

from the power sector is essential to

addressing the challenge of climate

change—and sources in the power

sector also have many available options

for reducing their climate-destabilizing

emissions. Particularly relevant to these

actions are several key technologies

(CCS and co-firing of lower-GHG fuels)

that allow fossil fuel-fired steam

generating EGUs and stationary

combustion turbines to provide power

while emitting significantly lower GHG

emissions. Moreover, with the increased

electrification of other GHG-emitting

sectors of the economy, such as personal

vehicles, heavy-duty trucks, and the

heating and cooling of buildings,

B. Recent Developments in Emissions

Controls and the Electric Power Sector

Several recent developments

concerning emissions controls are

relevant for the EPA’s determination of

the BSER for existing coal-fired steam

generating EGUs and new natural gasfired stationary combustion turbines.

These include lower costs and

continued improvements in CCS

technology, alongside Federal tax

incentives that allow companies to

largely offset the cost of CCS. Wellestablished trends in the sector further

inform where using such technologies is

cost effective and feasible, and form part

of the basis for the EPA’s determination

of the BSER.

In recent years, the cost of CCS has

declined in part because of process

improvements learned from earlier

deployments and other advances in the

technology. In addition, the Inflation

Reduction Act (IRA), enacted in 2022,

extended and significantly increased the

tax credit for carbon dioxide (CO2)

sequestration under Internal Revenue

Code (IRC) section 45Q. The provision

of tax credits in the IRA, combined with

the funding included in the

Infrastructure Investment and Jobs Act

(IIJA), enacted in 2021, incentivize and

facilitate the deployment of CCS and

other GHG emission control

technologies. As explained later in this

preamble, these developments support

the EPA’s conclusion that CCS is the

BSER for certain subcategories of new

and existing EGUs because it is an

adequately demonstrated and available

control technology that significantly

reduces emissions of dangerous

pollution and because the costs of its

installation and operation are

reasonable. Some companies have

already made plans to install CCS on

their units independent of the EPA’s

regulations.

Well documented trends in the power

sector also influence the EPA’s

determination of the BSER. In

particular, CCS entails significant

capital expenditures and is only costreasonable for units that will operate

enough to defray those capital costs. At

the same time, many utilities and power

generating companies have recently

announced plans to accelerate changing

the mix of their generating assets. The

IIJA and IRA, state legislation,

technology advancements, market

forces, consumer demand, and the

advanced age of much of the existing

4 https://www.epa.gov/ghgemissions/sourcesgreenhouse-gas-emissions.

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fossil fuel-fired generating fleet are

collectively leading to, in most cases,

decreased use of the fossil fuel-fired

units that are the subjects of these final

actions. From 2010 through 2022, fossil

fuel-fired generation declined from

approximately 72 percent of total net

generation to approximately 60 percent,

with generation from coal-fired sources

dropping from 49 percent to 20 percent

of net generation during this period.5

These trends are expected to continue

and are relevant to determining where

capital-intensive technologies, like CCS,

may be feasibly and cost-reasonably

deployed to reduce emissions.

Congress has taken other recent

actions to drive the reduction of GHG

emissions from the power sector. As

noted earlier, Congress enacted IRC

section 45Q in section 115 of the Energy

Improvement and Extension Act of 2008

to provide a tax credit for the

sequestration of CO2. Congress

significantly amended IRC section 45Q

in the Bipartisan Budget Act of 2018,

and more recently in the IRA, to make

this tax incentive more generous and

effective in spurring long-term

deployment of CCS. In addition, the IIJA

provided more than $65 billion for

infrastructure investments and upgrades

for transmission capacity, pipelines, and

low-carbon fuels.6 Further, the Creating

Helpful Incentives to Produce

Semiconductors and Science Act

(CHIPS Act) authorized billions more in

funding for development of low- and

non-GHG emitting energy technologies

that could provide additional low-cost

options for power companies to reduce

overall GHG emissions.7 As discussed

in greater detail in section IV.E.1 of this

preamble, the IRA, the IIJA, and CHIPS

contain numerous other provisions

encouraging companies to reduce their

GHGs.

C. Summary of the Principal Provisions

of These Regulatory Actions

These final actions include the repeal

of the ACE Rule, BSER determinations

and emission guidelines for existing

fossil fuel-fired steam generating units,

and BSER determinations and

accompanying standards of performance

for GHG emissions from new and

reconstructed fossil fuel-fired stationary

combustion turbines and modified fossil

fuel-fired steam generating units.

5 U.S. Energy Information Administration (EIA).

Electric Power Annual. 2010 and 2022. https://

www.eia.gov/electricity/annual/html/epa_03_01_

a.html.

6 https://www.congress.gov/bill/117th-congress/

house-bill/3684.

7 https://www.congress.gov/bill/117th-congress/

house-bill/4346.

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The EPA is taking these actions

consistent with its authority under CAA

section 111. Under CAA section 111,

once the EPA has identified a source

category that contributes significantly to

dangerous air pollution, it proceeds to

regulate new sources and, for GHGs and

certain other air pollutants, existing

sources. The central requirement is that

the EPA must determine the ‘‘best

system of emission reduction . . .

adequately demonstrated,’’ taking into

account the cost of the reductions, nonair quality health and environmental

impacts, and energy requirements.8 The

EPA may determine that different sets of

sources have different characteristics

relevant for determining the BSER and

may subcategorize sources accordingly.

Once it identifies the BSER, the EPA

must determine the ‘‘degree of emission

limitation’’ achievable by application of

the BSER. For new sources, the EPA

establishes the standard of performance

with which the sources must comply,

which is a standard for emissions that

reflects the degree of emission

limitation. For existing sources, the EPA

includes the information it has

developed concerning the BSER and

associated degree of emission limitation

in emission guidelines and directs the

states to adopt state plans that contain

standards of performance that are

consistent with the emission guidelines.

Since the early 1970s, the EPA has

promulgated regulations under CAA

section 111 for more than 60 source

categories, which has established a

robust set of regulatory precedents that

has informed the development of these

final actions. During this period, the

courts, primarily the U.S. Court of

Appeals for the D.C. Circuit and the

Supreme Court, have developed a body

of caselaw interpreting CAA section

111. As the Supreme Court has

recognized, the EPA has typically (and

does so in these actions) determined the

BSER to be ‘‘measures that improve the

pollution performance of individual

sources,’’ such as add-on controls and

clean fuels. West Virginia v. EPA, 597

U.S. 697, 734 (2022). For present

purposes, several of a BSER’s key

features include that it must reduce

emissions, be based on ‘‘adequately

demonstrated’’ technology, and have a

reasonable cost of control. The case law

interpreting section 111 has also

recognized that the BSER can be

forward-looking in nature and take into

account anticipated improvements in

control technologies. For example, the

EPA may determine a control to be

‘‘adequately demonstrated’’ even if it is

new and not yet in widespread

8 CAA section 111(a)(1).

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commercial use, and, further, that the

EPA may reasonably project the

development of a control system at a

future time and establish requirements

that take effect at that time. Further, the

most relevant costs under CAA section

111 are the costs to the regulated

facility. The actions that the EPA is

finalizing are consistent with the

requirements of CAA section 111 and its

regulatory history and caselaw, which is

discussed in further detail in section V

of this preamble.

1. Repeal of ACE Rule

The EPA is finalizing its proposed

repeal of the existing ACE Rule

emission guidelines. First, as a policy

matter, the EPA concludes that the suite

of heat rate improvements (HRI) that

was identified in the ACE Rule as the

BSER is not an appropriate BSER for

existing coal-fired EGUs. Second, the

ACE Rule rejected CCS and natural gas

co-firing as the BSER for reasons that no

longer apply. Third, the EPA concludes

that the ACE Rule conflicted with CAA

section 111 and the EPA’s implementing

regulations because it did not provide

sufficient specificity as to the BSER the

EPA had identified or the ‘‘degree of

emission limitation achievable though

application of the [BSER].’’

Also, the EPA is withdrawing the

proposed revisions to the New Source

Review (NSR) regulations that were

included the ACE Rule proposal (83 FR

44773–83; August 31, 2018).

2. Emission Guidelines for Existing

Fossil Fuel-Fired Steam Generating

Units

The EPA is finalizing CCS with 90

percent capture as BSER for existing

coal-fired steam generating units. These

units have a presumptive standard 9 of

an 88.4 percent reduction in annual

emission rate, with a compliance

deadline of January 1, 2032. As

explained in detail below, CCS is an

adequately demonstrated technology

that achieves significant emissions

reduction and is cost-reasonable, taking

into account the declining costs of the

technology and a substantial tax credit

available to sources. In recognition of

the significant capital expenditures

involved in deploying CCS technology

and the fact that 45 percent of regulated

units already have announced

retirement dates, the EPA is finalizing a

separate subcategory for existing coal9 Presumptive standards of performance are

discussed in detail in section X of the preamble.

While states establish standards of performance for

sources, the EPA provides presumptively

approvable standards of performance based on the

degree of emission limitation achievable through

application of the BSER for each subcategory.

PO 00000

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fired steam generating units that

demonstrate that they plan to

permanently cease operation before

January 1, 2039. The BSER for this

subcategory is co-firing with natural gas,

at a level of 40 percent of the unit’s

annual heat input. These units have a

presumptive standard of 16 percent

reduction in annual emission rate

corresponding to this BSER, with a

compliance deadline of January 1, 2030.

The EPA is finalizing an applicability

exemption for existing coal-fired steam

EGUs demonstrating that they plan to

permanently cease operation prior to

January 1, 2032, based on the Agency’s

determination that units retiring before

this date generally do not have costreasonable options for improving their

GHG emissions performance. Sources

that demonstrate they will permanently

cease operation before this applicability

deadline will not be subject to these

emission guidelines. Further, the EPA is

not finalizing the proposed imminentterm or near-term subcategories.

The EPA is finalizing the proposed

structure of the subcategory definitions

for natural gas- and oil-fired steam

generating units. The EPA is also

finalizing routine methods of operation

and maintenance as the BSER for

intermediate load and base load natural

gas- and oil-fired steam generating units.

Furthermore, the EPA is finalizing

presumptive standards for natural gasand oil-fired steam generating units that

are slightly higher than at proposal: base

load sources (those with annual

capacity factors greater than 45 percent)

have a presumptive standard of 1,400 lb

CO2/MWh-gross, and intermediate load

sources (those with annual capacity

factors greater than 8 percent and less

than or equal to 45 percent) have a

presumptive standard of 1,600 lb CO2/

MWh-gross. For low load (those with

annual capacity factors less than 8

percent), the EPA is finalizing a uniform

fuels BSER and a presumptive inputbased standard of 170 lb CO2/MMBtu

for oil-fired sources and a presumptive

standard of 130 lb CO2/MMBtu for

natural gas-fired sources.

3. Standards of Performance for New

and Reconstructed Fossil Fuel-Fired

Combustion Turbines

The EPA is finalizing emission

standards for three subcategories of

combustion turbines—base load,

intermediate load, and low load. The

BSER for base load combustion turbines

includes two components to be

implemented initially in two phases.

The first component of the BSER for

base load combustion turbines is highly

efficient generation (based on the

emission rates that the best performing

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units are achieving) and the second

component for base load combustion

turbines is utilization of CCS with 90

percent capture. Recognizing the lead

time that is necessary for new base load

combustion turbines to plan for and

install the second component of the

BSER (i.e., 90 percent CCS), including

the time that is needed to deploy the

associated infrastructure (CO2 pipelines,

storage sites, etc.), the EPA is finalizing

a second phase compliance deadline of

January 1, 2032, for this second

component of the standard.

The EPA has identified highly

efficient simple cycle generation as the

BSER for intermediate load combustion

turbines. For low load combustion

turbines, the EPA is finalizing its

proposed determination that the BSER

is the use of lower-emitting fuels.

4. New, Modified, and Reconstructed

Fossil Fuel-Fired Steam Generating

Units

The EPA is finalizing revisions of the

standards of performance for coal-fired

steam generating units that undertake a

large modification (i.e., a modification

that increases its hourly emission rate

by more than 10 percent) to mirror the

emission guidelines for existing coalfired steam generators. This reflects the

EPA’s determination that such modified

sources are capable of meeting the same

presumptive standards that the EPA is

finalizing for existing steam EGUs.

Further, this revised standard for

modified coal-fired steam EGUs will

avoid creating an unjustified disparity

between emission control obligations for

modified and existing coal-fired steam

EGUs.

The EPA did not propose, and we are

not finalizing, any review or revision of

the 2015 standard for large

modifications of oil- or gas-fired steam

generating units because we are not

aware of any existing oil- or gas-fired

steam generating EGUs that have

undertaken such modifications or have

plans to do so, and, unlike an existing

coal-fired steam generating EGUs,

existing oil- or gas-fired steam units

have no incentive to undertake such a

modification to avoid the requirements

we are including in this final rule for

existing oil- or gas-fired steam

generating units.

As discussed in the proposal

preamble, the EPA is not revising the

NSPS for newly constructed or

reconstructed fossil fuel-fired steam

electric generating units (EGU) at this

time because the EPA anticipates that

few, if any, such units will be

constructed or reconstructed in the

foreseeable future. However, the EPA

has recently become aware that a new

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coal-fired power plant is under

consideration in Alaska. Accordingly,

the EPA is not, at this time, finalizing

its proposal not to review the 2015

NSPS, and, instead, will continue to

consider whether to review the 2015

NSPS. As developments warrant, the

EPA will determine either to conduct a

review, and propose revised standards

of performance, or not conduct a review.

Also, in this final action, the EPA is

withdrawing the 2018 proposed

amendments 10 to the NSPS for GHG

emissions from coal-fired EGUs.

5. Severability

This final action is composed of four

independent rules: the repeal of the

ACE rule; GHG emission guidelines for

existing fossil fuel-fired steam

generating units; NSPS for GHG

emissions from new and reconstructed

fossil fuel-fired combustion turbines;

and revisions to the standards of

performance for new, modified, and

reconstructed fossil fuel-fired steam

generating units. The EPA could have

finalized each of these rules in separate

Federal Register notices as separate

final actions. The Agency decided to

include these four independent rules in

a single Federal Register notice for

administrative ease because they all

relate to climate pollution from the

fossil fuel-fired electric generating units

source category. Accordingly, despite

grouping these rules into one single

Federal Register notice, the EPA

intends that each of these rules

described in sections I.C.1 through I.C.4

is severable from the other.

In addition, each rule is severable as

a practical matter. For example, the EPA

would repeal the ACE Rule separate and

apart from finalizing new standards for

these sources as explained herein.

Moreover, the BSER and associated

emission guidelines for existing fossil

fuel-fired steam generating units are

independent of and would have been

the same regardless of whether the EPA

finalized the other parts of this rule. In

determining the BSER for existing fossil

fuel-fired steam generating units, the

EPA considered only the technologies

available to reduce GHG emissions at

those sources and did not take into

consideration the technologies or

standards of performance for new fossil

fuel-fired combustion turbines. The

same is true for the Agency’s evaluation

and determination of the BSER and

associated standards of performance for

new fossil fuel-fired combustion

turbines. The EPA identified the BSER

and established the standards of

performance by examining the controls

10 See 83 FR 65424, December 20, 2018.

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that were available for these units. That

analysis can stand alone and apart from

the EPA’s separate analysis for existing

fossil fuel-fired steam generating units.

Though the record evidence (including,

for example, modeling results) often

addresses the availability, performance,

and expected implementation of the

technologies at both existing fossil fuelfired steam generating units and new

fossil fuel-fired combustion turbines in

the same record documents, the

evidence for each evaluation stands on

its own, and is independently sufficient

to support each of the final BSERs.

In addition, within section I.C.1, the

final action to repeal the ACE Rule is

severable from the withdrawal of the

NSR revisions that were proposed in

parallel with the ACE Rule proposal.

Within the group of actions for existing

fossil fuel-fired steam generating units

in section I.C.2, the requirements for

each subcategory of existing sources are

severable from the requirements for

each other subcategory of existing

sources. For example, if a court were to

invalidate the BSER and associated

emission standard for units in the

medium-term subcategory, the BSER

and associated emission standard for

units in the long-term subcategory could

function sensibly because the

effectiveness of the BSER for each

subcategory is not dependent on the

effectiveness of the BSER for other

subcategories. Within the group of

actions for new and reconstructed fossil

fuel-fired combustion turbines in

section I.C.3, the following actions are

severable: the requirements for each

subcategory of new and reconstructed

turbines are severable from the

requirements for each other subcategory;

and within the subcategory for base load

turbines, the requirements for each of

the two components are severable from

the requirements for the other

component. Each of these standards can

function sensibly without the others.

For example, the BSER for low load,

intermediate load, and base load

subcategories is based on the

technologies the EPA determined met

the statutory standards for those

subcategories and are independent from

each other. And in the base load

subcategory units may practically be

constructed using the most efficient

technology without then installing CCS

and likewise may install CCS on a

turbine system that was not constructed

with the most efficient technology.

Within the group of actions for new,

modified, and reconstructed fossil fuelfired steam generating units in section

I.C.4, the revisions of the standards of

performance for coal-fired steam

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generators that undertake a large

modification are severable from the

withdrawal of the 2018 proposal to

revise the NSPS for emissions of GHG

from EGUs. Each of the actions in these

final rules that the EPA has identified as

severable is functionally independent—

i.e., may operate in practice

independently of the other actions.

In addition, while the EPA is

finalizing this rule at the same time as

other final rules regulating different

types of pollution from EGUs—

specifically the Supplemental Effluent

Limitations Guidelines and Standards

for the Steam Electric Power Generating

Point Source Category (FR 2024–09815,

EPA–HQ–OW–2009–0819; FRL–8794–

02–OW); National Emission Standards

for Hazardous Air Pollutants: Coal and

Oil-Fired Electric Utility Steam

Generating Units Review of the Residual

Risk and Technology Review (FR 2024–

09148, EPA–HQ–OAR–2018–0794;

FRL–6716.3–02–OAR); Hazardous and

Solid Waste Management System:

Disposal of Coal Combustion Residuals

From Electric Utilities; Legacy CCR

Surface Impoundments (FR 2024–

09157, EPA–HQ–OLEM–2020–0107;

FRL–7814–04–OLEM)—and has

considered the interactions between and

cumulative effects of these rules, each

rule is based on different statutory

authority, a different record, and is

completely independent of the other

rules.

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D. Grid Reliability Considerations

The EPA is finalizing multiple

adjustments to the proposed rules that

ensure the requirements in these final

actions can be implemented without

compromising the ability of power

companies, grid operators, and state and

Federal energy regulators to maintain

resource adequacy and grid reliability.

In response to the May 2023 proposed

rule, the EPA received extensive

comments from balancing authorities,

independent system operators and

regional transmission organizations,

state regulators, power companies, and

other stakeholders on the need for the

final rule to accommodate resource

adequacy and grid reliability needs. The

EPA also engaged with the balancing

authorities that submitted comments to

the docket, the staff and Commissioners

of the Federal Energy Regulatory

Commission (FERC), the Department of

Energy (DOE), the North American

Electric Reliability Corporation (NERC),

and other expert entities during the

course of this rulemaking. Finally, at the

invitation of FERC, the EPA participated

in FERC’s Annual Reliability Technical

Conference on November 9, 2023.

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These final actions respond to this

input and feedback in multiple ways,

including through changes to the

universe of affected sources, longer

compliance timeframes for CCS

implementation, and other compliance

flexibilities, as well as articulation of

the appropriate use of RULOF to

address reliability issues during state

plan development and in subsequent

state plan revisions. In addition to these

adjustments, the EPA is finalizing

several programmatic mechanisms

specifically designed to address

reliability concerns raised by

commenters. For existing fossil fuelfired EGUs, a short-term reliability

emergency mechanism is available for

states to provide more flexibility by

using an alternative emission limitation

during acute operational emergencies

when the grid might be temporarily

under heavy strain. A similar short-term

reliability emergency mechanism is also

available to new sources. In addition,

the EPA is creating an option for states

to provide for a compliance date

extension for existing sources of up to

1 year under certain circumstances for

sources that are installing control

technologies to comply with their

standards of performance. Lastly, states

may also provide, by inclusion in their

state plans, a reliability assurance

mechanism of up to 1 year that under

limited circumstances would allow

existing units that had planned to cease

operating by a certain date to

temporarily remain available to support

reliability. Any extensions exceeding 1

year must be addressed through a state

plan revision. In order to utilize this

reliability pathway, there must be an

adequate demonstration of need and

certification by a reliability authority,

and approval by the appropriate EPA

Regional Administrator. The EPA plans

to seek the advice of FERC for extension

requests exceeding 6 months. Similarly,

for new fossil fuel-fired combustion

turbines, the EPA is creating a

mechanism whereby baseload units may

request a 1-year extension of their CCS

compliance deadline under certain

circumstances.

The EPA has evaluated the resource

adequacy implications of these actions

in the final technical support document

(TSD), Resource Adequacy Analysis,

and conducted capacity expansion

modeling of the final rules in a manner

that takes into account resource

adequacy needs. The EPA finds that

resource adequacy can be maintained

with the final rules. The EPA modeled

a scenario that complies with the final

rules and that meets resource adequacy

needs. The EPA also performed a variety

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of other sensitivity analyses looking at

higher electricity demand (load growth)

and impact of the EPA’s additional

regulatory actions affecting the power

sector. These sensitivity analyses

indicate that, in the context of higher

demand and other pending power sector

rules, the industry has available

pathways to comply with this rule that

respect NERC reliability considerations

and constraints.

In addition, the EPA notes that

significant planning and regulatory

mechanisms exist to ensure that

sufficient generation resources are

available to maintain reliability. The

EPA’s consideration of reliability in this

rulemaking has also been informed by

consultation with the DOE under the

auspices of the March 9, 2023,

memorandum of understanding

(MOU) 11 signed by the EPA

Administrator and the Secretary of

Energy, as well as by consultation with

FERC expert staff. In these final actions,

the EPA has included various

flexibilities that allow power companies

and grid operators to plan for achieving

feasible and necessary reductions of

GHGs from affected sources consistent

with the EPA’s statutory charge while

ensuring that the rule will not interfere

with systems operators’ ability to ensure

grid reliability.

A thorough description of how

adjustments in the final rules address

reliability issues, the EPA’s outreach to

balancing authorities, EPA’s

supplemental notice, as well as the

introduction of mechanisms to address

short- and long-term reliability needs is

presented in section XII.F of this

preamble.

E. Environmental Justice Considerations

Consistent with Executive Order

(E.O.) 14096, and the EPA’s

commitment to upholding

environmental justice (EJ) across its

policies and programs, the EPA

carefully considered the impacts of

these actions on communities with

environmental justice concerns. As part

of the regulatory development process

for these rulemakings, and consistent

with directives set forth in multiple

Executive Orders, the EPA conducted

extensive outreach with interested

parties including Tribal nations and

communities with environmental justice

concerns. These opportunities gave the

EPA a chance to hear directly from the

public, including from communities

potentially impacted by these final

11 Joint Memorandum of Understanding on

Interagency Communication and Consultation on

Electric Reliability (March 9, 2023). https://

www.epa.gov/power-sector/electric-reliability-mou.

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actions. The EPA took this feedback into

account in its development of these

final actions.12 The EPA’s analysis of

environmental justice in these final

actions is briefly summarized here and

discussed in further detail in sections

XII.E and XIII.J of the preamble and

section 6 of the regulatory impact

analysis (RIA).

Several environmental justice

organizations and community

representatives raised significant

concerns about the potential health,

environmental, and safety impacts of

CCS. The EPA takes these concerns

seriously, agrees that any impacts to

historically disadvantaged and

overburdened communities are

important to consider, and has carefully

considered these concerns as it finalized

its determinations of the BSERs for

these rules. The Agency acknowledges

that while these final actions will result

in large reductions of both GHGs and

other emissions that will have

significant positive benefits, there is the

potential for localized increases in

emissions, particularly if units installing

CCS operate for more hours during the

year and/or for more years than they

would have otherwise. However, as

discussed in section VII.C.1.a.iii(B), a

robust regulatory framework exists to

reduce the risks of localized emissions

increases in a manner that is protective

of public health, safety, and the

environment. The Council on

Environmental Quality’s (CEQ) February

2022 Carbon Capture, Utilization, and

Sequestration Guidance and the EPA’s

evaluation of BSER recognize that

multiple Federal agencies have

responsibility for regulating and

permitting CCS projects, along with

state and tribal governments. As the

CEQ has noted, Federal agencies have

‘‘taken actions in the past decade to

develop a robust carbon capture,

utilization, and sequestration/storage

(CCUS) regulatory framework to protect

the environment and public health

across multiple statutes.’’ 13 14

12 Specifically, the EPA has relied on, and is

incorporating as a basis for this rulemaking,

analyses regarding possible adverse environmental

effects from CCS, including those highlighted by

commenters. Consideration of these effects is

permissible under CAA section 111(a)(1). Although

the EPA also conducted analyses of

disproportionate impacts pursuant to E.O. 14096,

see section XII.E, the EPA did not consider or rely

on these analyses as a basis for these rules.

13 87 FR 8808, 8809 (February 16, 2022).

14 This framework includes, among other things,

the EPA regulation of geologic sequestration wells

under the Underground Injection Control (UIC)

program of the Safe Drinking Water Act; required

reporting and public disclosure of geologic

sequestration activity, as well as implementation of

rigorous monitoring, reporting, and verification of

geologic sequestration under the EPA’s Greenhouse

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Furthermore, the EPA plans to review

and update as needed its guidance on

NSR permitting, specifically with

respect to BACT determinations for

GHG emissions and consideration of copollutant increases from sources

installing CCS. For the reasons

explained in section VII.C, the EPA is

finalizing the determination that CCS is

the BSER for certain subcategories of

new and existing EGUs based on its

consideration of all of the statutory

criteria for BSER, including emission

reductions, cost, energy requirements,

and non-air health and environmental

considerations. At the same time, the

EPA recognizes the critical importance

of ensuring that the regulatory

framework performs as intended to

protect communities.

These actions are focused on

establishing NSPS and emission

guidelines for GHGs that states will

implement to significantly reduce GHGs

and move us a step closer to avoiding

the worst impacts of climate change,

which is already having a

disproportionate impact on

communities with environmental justice

concerns. The EPA analyzed several

illustrative scenarios representing

potential compliance outcomes and

evaluated the potential impacts that

these actions may have on emissions of

GHG and other health-harming air

pollutants from fossil fuel-fired EGUs,

as well as how these changes in

emissions might affect air quality and

public health, particularly for

communities with EJ concerns.

The EPA’s national-level analysis of

emission reduction and public health

impacts, which is documented in

section 6 of the RIA and summarized in

greater detail in section XII.A and XII.D

of this preamble, finds that these actions

achieve nationwide reductions in EGU

emissions of multiple health-harming

air pollutants including nitrogen oxides

(NOX), sulfur dioxide (SO2), and fine

particulate matter (PM2.5), resulting in

public health benefits. The EPA also

evaluated how the air quality impacts

associated with these final actions are

distributed, with particular focus on

communities with EJ concerns. As

discussed in the RIA, our analysis

indicates that baseline ozone and PM2.5

concentration will decline substantially

relative to today’s levels. Relative to

these low baseline levels, ozone and

PM2.5 concentrations will decrease

further in virtually all areas of the

country, although some areas of the

Gas Reporting Program (GHGRP); and safety

regulations for CO2 pipelines administered by the

Pipeline and Hazardous Materials and Safety

Administration (PHMSA).

PO 00000

Frm 00008

country may experience slower or faster

rates of decline in ozone and PM2.5

pollution over time due to the changes

in generation and utilization resulting

from these rules. Additionally, our

comparison of future air quality

conditions with and without these rules

suggests that while these actions are

anticipated to lead to modest but

widespread reductions in ambient levels

of PM2.5 and ozone for a large majority

of the nation’s population, there is

potential for some geographic areas and

demographic groups to experience small

increases in ozone concentrations

relative to the baseline levels which are

projected to be substantially lower than

today’s levels.

It is important to recognize that while

these projections of emissions changes

and resulting air quality changes under

various illustrative compliance

scenarios are based upon the best

information available to the EPA at this

time, with regard to existing sources,

each state will ultimately be responsible

for determining the future operation of

fossil fuel-fired steam generating units

located within its jurisdiction. The EPA

expects that, in making these

determinations, states will consider a

number of factors and weigh input from

the wide range of potentially affected

stakeholders. The meaningful

engagement requirements discussed in

section X.E.1.b.i of this preamble will

ensure that all interested stakeholders—

including community members

adversely impacted by pollution, energy

workers affected by construction and/or

other changes in operation at fossil-fuelfired power plants, consumers and other

interested parties—will have an

opportunity to have their concerns

heard as states make decisions

balancing a multitude of factors

including appropriate standards of

performance, compliance strategies, and

compliance flexibilities for existing

EGUs, as well as public health and

environmental considerations. The EPA

believes that these provisions, together

with the protections referenced above,

can reduce the risks of localized

emissions increases in a manner that is

protective of public health, safety, and

the environment.

F. Energy Workers and Communities

These final actions include

requirements for meaningful

engagement in development of state

plans, including with energy workers

and communities. These communities,

including energy workers employed at

affected EGUs, workers who may

construct and install pollution control

technology, workers employed by fuel

extraction and delivery, organizations

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representing these workers, and

communities living near affected EGUs,

are impacted by power sector trends on

an ongoing basis and by these final

actions, and the EPA expects that states

will include these stakeholders as part

of their constructive engagement under

the requirements in this rule.

The EPA consulted with the Federal

Interagency Working Group on Coal and

Power Plant Communities and

Economic Revitalization (Energy

Communities IWG) in development of

these rules and the meaningful

engagement requirements. The EPA

notes that the Energy Communities IWG

has provided resources to help energy

communities access the expanded

federal resources made available by the

Bipartisan Infrastructure Law, CHIPS

and Science Act, and Inflation

Reduction Act, many of which are

relevant to the development of state

plans.

G. Key Changes From Proposal

The key changes from proposal in

these final actions are: (1) the reduction

in number of subcategories for existing

coal-fired steam generating units, (2) the

extension of the compliance date for

existing coal-fired steam generating

units to meet a standard of performance

based on implementation of CCS, (3) the

removal of low-GHG hydrogen co-firing

as a BSER pathway, and (4) the addition

of two reliability-related instruments. In

addition, (5), the EPA is not finalizing

proposed requirements for existing

fossil fuel-fired stationary combustion

turbines at this time.

The reduction in number of

subcategories for existing coal-fired

steam generating units: The EPA

proposed four subcategories for existing

coal-fired steam generating units, which

would have distinguished these units by

operating horizon and by load level.

These included subcategories for

existing coal-fired EGUs planning to

cease operations in the imminent-term

(i.e., prior to January 1, 2032) and those

planning to cease operations in the nearterm (i.e., prior to January 1, 2035).

While commenters were generally

supportive of the proposed

subcategorization approach, some

requested that the cease-operation-by

date for the imminent-term subcategory

be extended and the utilization limit for

the near-term subcategory be relaxed.

The EPA is not finalizing the imminentterm and near-term subcategories of

coal-fired steam generating units.

Rather, the EPA is finalizing an

applicability exemption for coal-fired

steam generating units demonstrating

that they plan to permanently cease

operation before January 1, 2032. See

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section VII.B of this preamble for further

discussion.

The extension of the compliance date

for existing coal-fired steam generating

units to meet a standard of performance

based on implementation of CCS. The

EPA proposed a compliance date for

implementation of CCS for long-term

coal-fired steam generating units of

January 1, 2030. The EPA received

comments asserting that this deadline

did not provide adequate lead time. In

consideration of those comments, and

the record as a whole, the EPA is

finalizing a CCS compliance date of

January 1, 2032 for these sources.

The removal of low-GHG hydrogen cofiring as a BSER pathway and only use

of low-GHG hydrogen as a compliance

option: The EPA is not finalizing its

proposed BSER pathway of low-GHG

hydrogen co-firing for new and

reconstructed base load and

intermediate load combustion turbines

in accordance with CAA section

111(a)(1). The EPA is also not finalizing

its proposed requirement that only lowGHG hydrogen may be co-fired in a

combustion turbine for the purpose of

compliance with the standards of

performance. These decisions are based

on uncertainties identified for specific

criteria used to evaluate low-GHG

hydrogen co-firing as a potential BSER,

and after further analysis in response to

public comments, the EPA has

determined that these uncertainties

prevent the EPA from concluding that

low-GHG hydrogen co-firing is a

component of the ‘‘best’’ system of

emission reduction at this time. Under

CAA section 111, the EPA establishes

standards of performance but does not

mandate use of any particular

technology to meet those standards.

Therefore, certain sources may elect to

co-fire hydrogen for compliance with

the final standards of performance, even

absent the technology being a BSER

pathway.15 See section VIII.F.5 of this

preamble for further discussion.

15 The EPA is not placing qualifications on the

type of hydrogen a source may elect to co-fire at this

time (see section VIII.F.6.a of this preamble for

further discussion). The Agency continues to

recognize that even though the combustion of

hydrogen is zero-GHG emitting, its production can

entail a range of GHG emissions, from low to high,

depending on the production method. Thus, even

though the EPA is not finalizing the low-GHG

hydrogen co-firing as a BSER, as proposed, it

maintains that the overall GHG profile of a

particular method of hydrogen production should

be a primary consideration for any source that

decides to co-fire hydrogen to ensure that overall

GHG reductions and important climate benefits are

achieved. The EPA also notes the anticipated final

rule from the U.S. Department of the Treasury

pertaining to clean hydrogen production tax and

energy credits, which in its proposed form contains

certain eligibility parameters, as well as programs

PO 00000

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The addition of two reliability-related

instruments: Commenters expressed

concerns that these rules, in

combination with other factors, may

affect the reliability of the bulk power

system. In response to these comments

the EPA engaged extensively with

balancing authorities, power companies,

reliability experts, and regulatory

authorities responsible for reliability to

inform its decisions in these final rules.

As described later in this preamble, the

EPA has made adjustments in these

final rules that will support power

companies, grid operators, and states in

maintaining the reliability of the electric

grid during the implementation of these

final rules. In addition, the EPA has

undertaken an analysis of the reliability

and resource adequacy implications of

these final rules that supports the

Agency’s conclusion that these final

rules can be implemented without

adverse consequences for grid

reliability. Further, the EPA is finalizing

two reliability-related instruments as an

additional layer of safeguards for

reliability. These instruments include a

reliability mechanism for short-term

emergency issues, and a reliability

assurance mechanism, or compliance

flexibility, for units that have chosen

compliance pathways with enforceable

retirement dates, provided there is a

documented and verified reliability

concern. In addition, the EPA is

finalizing compliance extensions for

unanticipated delays with control

technology implementation.

Specifically, as described in greater

detail in section XII.F of this preamble,

the EPA is finalizing the following

features and changes from the proposal

that will provide even greater certainty

that these final rules are sensitive to

reliability-related issues and

constructed in a manner that does not

interfere with grid operators’

responsibility to deliver reliable power:

(1) longer compliance timelines for

existing coal-fired steam generating

units;

(2) a mechanism to extend

compliance timelines by up to 1 year in

the case of unforeseen circumstances,

outside of an owner/operator’s control,

that delay the ability to apply controls

(e.g., supply chain challenges or

permitting delays);

(3) transparent unit-specific

compliance information for EGUs that

will allow grid operators to plan for

system changes with greater certainty

and precision;

(4) a short-term reliability mechanism

to allow affected EGUs to operate at

administered by the U.S. Department of Energy,

such as the recent H2Hubs selections.

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baseline emission rates during

documented reliability emergencies;

and

(5) a reliability assurance mechanism

to allow states to delay cease operation

dates by up to 1 year in cases where the

planned cease operation date is forecast

to disrupt system reliability.

Not finalizing proposed requirements

for existing fossil fuel-fired stationary

combustion turbines at this time: The

EPA proposed emission guidelines for

large (i.e., greater than 300 MW),

frequently operated (i.e., with an annual

capacity factor of greater than 50

percent), existing fossil fuel-fired

stationary combustion turbines. The

EPA received a wide range of comments

on the proposed guidelines. Multiple

commenters suggested that the proposed

provisions would largely result in

shifting of generation away from the

most efficient natural gas-fired turbines

to less efficient natural gas-fired

turbines. Commenters stated that, as

emissions from coal-fired steam

generating units decreased, existing

natural gas-fired EGUs were poised to

become the largest source of GHG

emissions in the power sector.

Commenters noted that these units play

an important role in grid reliability,

particularly as aging coal-fired EGUs

retire. Commenters further noted that

the existing fossil fuel-fired stationary

combustion turbines that were not

covered by the proposal (i.e., the smaller

and less frequently operating units) are

often less efficient, less well controlled

for other pollutants such as NOX, and

are more likely to be located near

population centers and communities

with environmental justice concerns.

The EPA agrees with commenters

who observed that GHG emissions from

existing natural gas-fired stationary

combustion turbines are a growing

portion of the emissions from the power

sector. This is consistent with EPA

modeling that shows that by 2030 these

units will represent the largest portion

of GHG emissions from the power

sector. The EPA agrees that it is vital to

promulgate emission guidelines to

address GHG emissions from these

sources, and that the EPA has a

responsibility to do so under section

111(d) of the Clean Air Act. The EPA

also agrees with commenters who noted

that focusing only on the largest and

most frequently operating units, without

also addressing emissions from other

units, as the May 2023 proposed rule

provided, may not be the most effective

way to address emissions from this

sector. The EPA’s modeling shows that

over time as the power sector comes

closer to reaching the phase-out

threshold of the clean electricity

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incentives in the Inflation Reduction

Act (IRA) (i.e., a 75 percent reduction in

emissions from the power sector from

2022 levels), the average capacity factor

for existing natural gas-fired stationary

combustion turbines decreases.

Therefore, the EPA’s proposal to focus

only on the largest units with the

highest capacity factors may not be the

most effective policy design for

reducing GHG emissions from these

sources.

Recognizing the importance of

reducing emissions from all fossil fuelfired EGUs, the EPA is not finalizing the

proposed emission guidelines for

certain existing fossil fuel-fired

stationary combustion turbines at this

time. Instead, the EPA intends to issue

a new, more comprehensive proposal to

regulate GHGs from existing sources.

The new proposal will focus on

achieving greater emission reductions

from existing stationary combustion

turbines—which will soon be the largest

stationary sources of GHG emissions—

while taking into account other factors

including the local non-GHG impacts of

gas turbine generation and the need for

reliable, affordable electricity.

II. General Information

A. Action Applicability

The source category that is the subject

of these actions is composed of fossil

fuel-fired electric utility generating

units. The North American Industry

Classification System (NAICS) codes for

the source category are 221112 and

921150. The list of categories and

NAICS codes is not intended to be

exhaustive, but rather provides a guide

for readers regarding the entities that

these final actions are likely to affect.

Final amendments to 40 CFR part 60,

subpart TTTT, are directly applicable to

affected facilities that began

construction after January 8, 2014, but

before May 23, 2023, and affected

facilities that began reconstruction or

modification after June 18, 2014, but

before May 23, 2023. The NSPS codified

in 40 CFR part 60, subpart TTTTa, is

directly applicable to affected facilities

that begin construction, reconstruction,

or modification on or after May 23,

2023. Federal, state, local, and tribal

government entities that own and/or

operate EGUs subject to 40 CFR part 60,

subpart TTTT or TTTTa, are affected by

these amendments and standards.

The emission guidelines codified in

40 CFR part 60, subpart UUUUb, are for

states to follow in developing,

submitting, and implementing state

plans to establish performance

standards to reduce emissions of GHGs

from designated facilities that are

PO 00000

Frm 00010

existing sources. Section 111(a)(6) of the

CAA defines an ‘‘existing source’’ as

‘‘any stationary source other than a new

source.’’ Therefore, the emission

guidelines would not apply to any EGUs

that are new after January 8, 2014, or

reconstructed after June 18, 2014, the

applicability dates of 40 CFR part 60,

subpart TTTT. Under the Tribal

Authority Rule (TAR), eligible tribes

may seek approval to implement a plan

under CAA section 111(d) in a manner

similar to a state. See 40 CFR part 49,

subpart A. Tribes may, but are not

required to, seek approval for treatment

in a manner similar to a state for

purposes of developing a tribal

implementation plan (TIP)

implementing the emission guidelines

codified in 40 CFR part 60, subpart

UUUUb. The TAR authorizes tribes to

develop and implement their own air

quality programs, or portions thereof,

under the CAA. However, it does not

require tribes to develop a CAA

program. Tribes may implement

programs that are most relevant to their

air quality needs. If a tribe does not seek

and obtain the authority from the EPA

to establish a TIP, the EPA has the

authority to establish a Federal CAA

section 111(d) plan for designated

facilities that are located in areas of

Indian country.16 A Federal plan would

apply to all designated facilities located

in the areas of Indian country covered

by the Federal plan unless and until the

EPA approves a TIP applicable to those

facilities.

B. Where To Get a Copy of This

Document and Other Related

Information

In addition to being available in the

docket, an electronic copy of these final

rulemakings is available on the internet

at https://www.epa.gov/stationarysources-air-pollution/greenhouse-gasstandards-and-guidelines-fossil-fuelfired-power. Following signature by the

EPA Administrator, the EPA will post a

copy of these final rulemakings at this

same website. Following publication in

the Federal Register, the EPA will post

the Federal Register version of the final

rules and key technical documents at

this same website.

C. Judicial Review and Administrative

Review

Under CAA section 307(b)(1), judicial

review of these final actions is available

only by filing a petition for review in

16 See the EPA’s website, https://www.epa.gov/

tribal/tribes-approved-treatment-state-tas, for

information on those tribes that have treatment as

a state for specific environmental regulatory

programs, administrative functions, and grant

programs.

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the United States Court of Appeals for

the District of Columbia Circuit by July

8, 2024. These final actions are

‘‘standard[s] of performance or

requirement[s] under section 111,’’ and,

in addition, are ‘‘nationally applicable

regulations promulgated, or final action

taken, by the Administrator under [the

CAA],’’ CAA section 307(b)(1). Under

CAA section 307(b)(2), the requirements

established by this final rule may not be

challenged separately in any civil or

criminal proceedings brought by the

EPA to enforce the requirements.

Section 307(d)(7)(B) of the CAA

further provides that ‘‘[o]nly an

objection to a rule or procedure which

was raised with reasonable specificity

during the period for public comment

(including any public hearing) may be

raised during judicial review.’’ This

section also provides a mechanism for

the EPA to convene a proceeding for

reconsideration, ‘‘[i]f the person raising

an objection can demonstrate to the EPA

that it was impracticable to raise such

objection within [the period for public

comment] or if the grounds for such

objection arose after the period for

public comment, (but within the time

specified for judicial review) and if such

objection is of central relevance to the

outcome of the rule.’’ Any person

seeking to make such a demonstration to

us should submit a Petition for

Reconsideration to the Office of the

Administrator, U.S. Environmental

Protection Agency, Room 3000, WJC

West Building, 1200 Pennsylvania Ave.

NW, Washington, DC 20460, with a

copy to both the person(s) listed in the

preceding FOR FURTHER INFORMATION

CONTACT section, and the Associate

General Counsel for the Air and

Radiation Law Office, Office of General

Counsel (Mail Code 2344A), U.S.

Environmental Protection Agency, 1200

Pennsylvania Ave. NW, Washington, DC

20460.

III. Climate Change Impacts

Elevated concentrations of GHGs have

been warming the planet, leading to

changes in the Earth’s climate that are

occurring at a pace and in a way that

threatens human health, society, and the

natural environment. While the EPA is

not making any new scientific or factual

findings with regard to the welldocumented impact of GHG emissions

on public health and welfare in support

of these rules, the EPA is providing in

this section a brief scientific background

on climate change to offer additional

context for these rulemakings and to

help the public understand the

environmental impacts of GHGs.

Extensive information on climate

change is available in the scientific

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assessments and the EPA documents

that are briefly described in this section,

as well as in the technical and scientific

information supporting them. One of

those documents is the EPA’s 2009

‘‘Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under

Section 202(a) of the CAA’’ (74 FR

66496, December 15, 2009) (‘‘2009

Endangerment Finding’’). In the 2009

Endangerment Finding, the

Administrator found under section

202(a) of the CAA that elevated

atmospheric concentrations of six key

well-mixed GHGs—CO2, methane (CH4),

nitrous oxide (N2O), HFCs,

perfluorocarbons (PFCs), and sulfur

hexafluoride (SF6)—‘‘may reasonably be

anticipated to endanger the public

health and welfare of current and future

generations’’ (74 FR 66523, December

15, 2009). The 2009 Endangerment

Finding, together with the extensive

scientific and technical evidence in the

supporting record, documented that

climate change caused by human

emissions of GHGs threatens the public

health of the U.S. population. It

explained that by raising average

temperatures, climate change increases

the likelihood of heat waves, which are

associated with increased deaths and

illnesses (74 FR 66497, December 15,

2009). While climate change also

increases the likelihood of reductions in

cold-related mortality, evidence

indicates that the increases in heat

mortality will be larger than the

decreases in cold mortality in the U.S.

(74 FR 66525, December 15, 2009). The

2009 Endangerment Finding further

explained that compared with a future

without climate change, climate change

is expected to increase tropospheric

ozone pollution over broad areas of the

U.S., including in the largest

metropolitan areas with the worst

tropospheric ozone problems, and

thereby increase the risk of adverse

effects on public health (74 FR 66525,

December 15, 2009). Climate change is

also expected to cause more intense

hurricanes and more frequent and

intense storms of other types and heavy

precipitation, with impacts on other

areas of public health, such as the

potential for increased deaths, injuries,

infectious and waterborne diseases, and

stress-related disorders (74 FR 66525

December 15, 2009). Children, the

elderly, and the poor are among the

most vulnerable to these climate-related

health effects (74 FR 66498, December

15, 2009).

The 2009 Endangerment Finding also

documented, together with the

extensive scientific and technical

evidence in the supporting record, that

PO 00000

Frm 00011

climate change touches nearly every

aspect of public welfare 17 in the U.S.,

including the following: changes in

water supply and quality due to changes

in drought and extreme rainfall events;

increased risk of storm surge and

flooding in coastal areas and land loss

due to inundation; increases in peak

electricity demand and risks to

electricity infrastructure; and the

potential for significant agricultural

disruptions and crop failures (though

offset to some extent by carbon

fertilization). These impacts are also

global and may exacerbate problems

outside the U.S. that raise humanitarian,

trade, and national security issues for

the U.S. (74 FR 66530, December 15,

2009).

In 2016, the Administrator issued a

similar finding for GHG emissions from

aircraft under section 231(a)(2)(A) of the

CAA.18 In the 2016 Endangerment

Finding, the Administrator found that

the body of scientific evidence amassed

in the record for the 2009 Endangerment

Finding compellingly supported a

similar endangerment finding under

CAA section 231(a)(2)(A) and also found

that the science assessments released

between the 2009 and 2016 Findings

‘‘strengthen and further support the

judgment that GHGs in the atmosphere

may reasonably be anticipated to

endanger the public health and welfare

of current and future generations’’ (81

FR 54424, August 15, 2016).

Since the 2016 Endangerment

Finding, the climate has continued to

change, with new observational records

being set for several climate indicators

such as global average surface

temperatures, GHG concentrations, and

sea level rise. Additionally, major

scientific assessments continue to be

released that further advance our

understanding of the climate system and

the impacts that GHGs have on public

health and welfare for both current and

future generations. These updated

observations and projections document

the rapid rate of current and future

17 The CAA states in section 302(h) that ‘‘[a]ll

language referring to effects on welfare includes,

but is not limited to, effects on soils, water, crops,

vegetation, manmade materials, animals, wildlife,

weather, visibility, and climate, damage to and

deterioration of property, and hazards to

transportation, as well as effects on economic

values and on personal comfort and well-being,

whether caused by transformation, conversion, or

combination with other air pollutants.’’ 42 U.S.C.

7602(h).

18 Finding That Greenhouse Gas Emissions From

Aircraft Cause or Contribute to Air Pollution That

May Reasonably Be Anticipated To Endanger Public

Health and Welfare. 81 FR 54422, August 15, 2016

(‘‘2016 Endangerment Finding’’).

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climate change both globally and in the

U.S.19 20 21 22 23 24 25 26 27 28 29 30 31

19 USGCRP, 2017: Climate Science Special

Report: Fourth National Climate Assessment,

Volume I [Wuebbles, D.J., D.W. Fahey, K.A.

Hibbard, D.J. Dokken, B.C. Stewart, and T.K.

Maycock (eds.)]. U.S. Global Change Research

Program, Washington, DC, USA, 470 pp, doi:

10.7930/J0J964J6.

20 USGCRP, 2016: The Impacts of Climate Change

on Human Health in the United States: A Scientific

Assessment. Crimmins, A., J. Balbus, J.L. Gamble,

C.B. Beard, J.E. Bell, D. Dodgen, R.J. Eisen, N. Fann,

M.D. Hawkins, S.C. Herring, L. Jantarasami, D.M.

Mills, S. Saha, M.C.

21 USGCRP, 2018: Impacts, Risks, and Adaptation

in the United States: Fourth National Climate

Assessment, Volume II [Reidmiller, D.R., C.W.

Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis,

T.K. Maycock, and B.C. Stewart (eds.)]. U.S. Global

Change Research Program, Washington, DC, USA,

1515 pp. doi:10.7930/NCA4.2018.

22 IPCC, 2018: Global Warming of 1.5 °C. An IPCC

Special Report on the impacts of global warming of

1.5 °C above pre-industrial levels and related global

greenhouse gas emission pathways, in the context

of strengthening the global response to the threat of

climate change, sustainable development, and

efforts to eradicate poverty [Masson-Delmotte, V., P.

Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla,

A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock,

S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I.

Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T.

Waterfield (eds.)].

23 IPCC, 2019: Climate Change and Land: an IPCC

special report on climate change, desertification,

land degradation, sustainable land management,

food security, and greenhouse gas fluxes in

terrestrial ecosystems [P.R. Shukla, J. Skea, E. Calvo

Buendia, V. Masson-Delmotte, H.-O. Pörtner, D.C.

Roberts, P. Zhai, R. Slade, S. Connors, R. van

Diemen, M. Ferrat, E. Haughey, S. Luz, S. Neogi, M.

Pathak, J. Petzold, J. Portugal Pereira, P. Vyas, E.

Huntley, K. Kissick, M. Belkacemi, J. Malley, (eds.)].

24 IPCC, 2019: IPCC Special Report on the Ocean

and Cryosphere in a Changing Climate [H.-O.

Pörtner, D.C. Roberts, V. Masson-Delmotte, P. Zhai,

M. Tignor, E. Poloczanska, K. Mintenbeck, A.

Alegriı́a, M. Nicolai, A. Okem, J. Petzold, B. Rama,

N.M. Weyer (eds.)].

25 National Academies of Sciences, Engineering,

and Medicine. 2016. Attribution of Extreme

Weather Events in the Context of Climate Change.

Washington, DC: The National Academies Press.

https://dio.org/10.17226/21852.

26 National Academies of Sciences, Engineering,

and Medicine. 2017. Valuing Climate Damages:

Updating Estimation of the Social Cost of Carbon

Dioxide. Washington, DC: The National Academies

Press. https://doi.org/10.17226/24651.

27 National Academies of Sciences, Engineering,

and Medicine. 2019. Climate Change and

Ecosystems. Washington, DC: The National

Academies Press. https://doi.org/10.17226/25504.

28 Blunden, J. and T. Boyer, Eds., 2022: ‘‘State of

the Climate in 2021.’’ Bull. Amer. Meteor. Soc., 103

(8), Si–S465, https://doi.org/10.1175/

2022BAMSStateoftheClimate.1.

29 U.S. Environmental Protection Agency. 2021.

Climate Change and Social Vulnerability in the

United States: A Focus on Six Impacts. EPA 430–

R–21–003.

30 Jay, A.K., A.R. Crimmins, C.W. Avery, T.A.

Dahl, R.S. Dodder, B.D. Hamlington, A. Lustig, K.

Marvel, P.A. Méndez-Lazaro, M.S. Osler, A.

Terando, E.S. Weeks, and A. Zycherman, 2023: Ch.

1. Overview: Understanding risks, impacts, and

responses. In: Fifth National Climate Assessment.

Crimmins, A.R., C.W. Avery, D.R. Easterling, K.E.

Kunkel, B.C. Stewart, and T.K. Maycock, Eds. U.S.

Global Change Research Program, Washington, DC,

USA. https://doi.org/10.7930/NCA5.2023.CH1.

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The most recent information

demonstrates that the climate is

continuing to change in response to the

human-induced buildup of GHGs in the

atmosphere. These recent assessments

show that atmospheric concentrations of

GHGs have risen to a level that has no

precedent in human history and that

they continue to climb, primarily

because of both historical and current

anthropogenic emissions, and that these

elevated concentrations endanger our

health by affecting our food and water

sources, the air we breathe, the weather

we experience, and our interactions

with the natural and built

environments. For example,

atmospheric concentrations of one of

these GHGs, CO2, measured at Mauna

Loa in Hawaii and at other sites around

the world reached 419 parts per million

(ppm) in 2022 (nearly 50 percent higher

than preindustrial levels) 32 and have

continued to rise at a rapid rate. Global

average temperature has increased by

about 1.1 °C (2.0 °F) in the 2011–2020

decade relative to 1850–1900.33 The

years 2015–2021 were the warmest 7

years in the 1880–2021 record,

contributing to the warmest decade on

record with a decadal temperature of

0.82 °C (1.48 °F) above the 20th

century.34 35 The Intergovernmental

Panel on Climate Change (IPCC)

determined (with medium confidence)

that this past decade was warmer than

any multi-century period in at least the

past 100,000 years.36 Global average sea

level has risen by about 8 inches (about

21 centimeters (cm)) from 1901 to 2018,

with the rate from 2006 to 2018 (0.15

inches/year or 3.7 millimeters (mm)/

year) almost twice the rate over the 1971

to 2006 period, and three times the rate

31 IPCC, 2023: Summary for Policymakers. In:

Climate Change 2023: Synthesis Report.

Contribution of Working Groups I, II and III to the

Sixth Assessment Report of the Intergovernmental

Panel on Climate Change [Core Writing Team, H.

Lee and J. Romero (eds.)].

32 https://gml.noaa.gov/webdata/ccgg/trends/co2/

co2_annmean_mlo.txt.

33 IPCC, 2021: Summary for Policymakers. In:

Climate Change 2021: The Physical Science Basis.

Contribution of Working Group I to the Sixth

Assessment Report of the Intergovernmental Panel

on Climate Change [Masson-Delmotte, V., P. Zhai,

A. Pirani, S.L. Connors, C. Péan, S. Berger, N. Caud,

Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K.

Leitzell, E. Lonnoy, J.B.R. Matthews, T.K. Maycock,

T. Waterfield, O. Yelekçi, R. Yu, and B. Zhou

(eds.)]. Cambridge University Press, Cambridge,

United Kingdom and New York, NY, USA, pp. 3–

32, doi:10.1017/9781009157896.001.

34 NOAA National Centers for Environmental

Information, State of the Climate 2021 retrieved on

August 3, 2023, from https://www.ncei.noaa.gov/

bams-state-of-climate.

35 Blunden, J. and T. Boyer, Eds., 2022: ‘‘State of

the Climate in 2021.’’ Bull. Amer. Meteor. Soc., 103

(8), Si–S465, https://doi.org/10.1175/

2022BAMSStateoftheClimate1.

36 IPCC, 2021.

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of the 1901 to 2018 period.37 The rate

of sea level rise over the 20th century

was higher than in any other century in

at least the last 2,800 years.38 Higher

CO2 concentrations have led to

acidification of the surface ocean in

recent decades to an extent unusual in

the past 65 million years, with negative

impacts on marine organisms that use

calcium carbonate to build shells or

skeletons.39 Arctic sea ice extent

continues to decline in all months of the

year; the most rapid reductions occur in

September (very likely almost a 13

percent decrease per decade between

1979 and 2018) and are unprecedented

in at least 1,000 years.40 Humaninduced climate change has led to

heatwaves and heavy precipitation

becoming more frequent and more

intense, along with increases in

agricultural and ecological droughts 41

in many regions.42

The assessment literature

demonstrates that modest additional

amounts of warming may lead to a

climate different from anything humans

have ever experienced. The 2022 CO2

concentration of 419 ppm is already

higher than at any time in the last 2

million years.43 If concentrations exceed

450 ppm, they would likely be higher

than any time in the past 23 million

years: 44 at the current rate of increase of

more than 2 ppm per year, this would

occur in about 15 years. While GHGs are

not the only factor that controls climate,

it is illustrative that 3 million years ago

(the last time CO2 concentrations were

above 400 ppm) Greenland was not yet

completely covered by ice and still

supported forests, while 23 million

years ago (the last time concentrations

were above 450 ppm) the West Antarctic

ice sheet was not yet developed,

indicating the possibility that high GHG

concentrations could lead to a world

that looks very different from today and

from the conditions in which human

civilization has developed. If the

Greenland and Antarctic ice sheets were

37 IPCC, 2021.

38 USGCRP, 2018: Impacts, Risks, and Adaptation

in the United States: Fourth National Climate

Assessment, Volume II [Reidmiller, D.R., C.W.

Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis,

T.K. Maycock, and B.C. Stewart (eds.)]. U.S. Global

Change Research Program, Washington, DC, USA,

1515 pp. doi:10.7930/NCA4.2018.

39 IPCC, 2018.

40 IPCC, 2021.

41 These are drought measures based on soil

moisture.

42 IPCC, 2021.

43 Annual Mauna Loa CO concentration data

2

from https://gml.noaa.gov/webdata/ccgg/trends/

co2/co2_annmean_mlo.txt, accessed September 9,

2023.

44 IPCC, 2013.

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Federal Register / Vol. 89, No. 91 / Thursday, May 9, 2024 / Rules and Regulations

to melt substantially, sea levels would

rise dramatically.

The NCA4 found that it is very likely

(greater than 90 percent likelihood) that

by mid-century, the Arctic Ocean will

be almost entirely free of sea ice by late

summer for the first time in about 2

million years.45 Coral reefs will be at

risk for almost complete (99 percent)

losses with 1 °C (1.8 °F) of additional

warming from today (2 °C or 3.6 °F since

preindustrial). At this temperature,

between 8 and 18 percent of animal,

plant, and insect species could lose over

half of the geographic area with suitable

climate for their survival, and 7 to 10

percent of rangeland livestock would be

projected to be lost.46 The IPCC

similarly found that climate change has

caused substantial damages and

increasingly irreversible losses in

terrestrial, freshwater, and coastal and

open ocean marine ecosystems.

Every additional increment of

temperature comes with consequences.

For example, the half degree of warming

from 1.5 to 2 °C (0.9 °F of warming from

2.7 °F to 3.6 °F) above preindustrial

temperatures is projected on a global

scale to expose 420 million more people

to frequent extreme heatwaves at least

every five years, and 62 million more

people to frequent exceptional

heatwaves at least every five years

(where heatwaves are defined based on

a heat wave magnitude index which

takes into account duration and

intensity—using this index, the 2003

French heat wave that led to almost

15,000 deaths would be classified as an

‘‘extreme heatwave’’ and the 2010

Russian heatwave which led to

thousands of deaths and extensive

wildfires would be classified as

‘‘exceptional’’). It would increase the

frequency of sea-ice-free Arctic

summers from once in 100 years to once

in a decade. It could lead to 4 inches of

additional sea level rise by the end of

the century, exposing an additional 10

million people to risks of inundation as

well as increasing the probability of

triggering instabilities in either the

Greenland or Antarctic ice sheets.

Between half a million and a million

additional square miles of permafrost

would thaw over several centuries.

Risks to food security would increase

from medium to high for several lowerincome regions in the Sahel, southern

Africa, the Mediterranean, central

Europe, and the Amazon. In addition to

food security issues, this temperature

increase would have implications for

human health in terms of increasing

ozone concentrations, heatwaves, and

45 USGCRP, 2018.

46 IPCC, 2018.

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vector-borne diseases (for example,

expanding the range of the mosquitoes

which carry dengue fever, chikungunya,

yellow fever, and the Zika virus or the

ticks which carry Lyme, babesiosis, or

Rocky Mountain Spotted Fever).47

Moreover, every additional increment in

warming leads to larger changes in

extremes, including the potential for

events unprecedented in the

observational record. Every additional

degree will intensify extreme

precipitation events by about 7 percent.

The peak winds of the most intense

tropical cyclones (hurricanes) are

projected to increase with warming. In

addition to a higher intensity, the IPCC

found that precipitation and frequency

of rapid intensification of these storms

has already increased, the movement

speed has decreased, and elevated sea

levels have increased coastal flooding,

all of which make these tropical

cyclones more damaging.48

The NCA4 also evaluated a number of

impacts specific to the U.S. Severe

drought and outbreaks of insects like the

mountain pine beetle have killed

hundreds of millions of trees in the

western U.S. Wildfires have burned

more than 3.7 million acres in 14 of the

17 years between 2000 and 2016, and

Federal wildfire suppression costs were

about a billion dollars annually.49 The

National Interagency Fire Center has

documented U.S. wildfires since 1983,

and the 10 years with the largest acreage

burned have all occurred since 2004.50

Wildfire smoke degrades air quality,

increasing health risks, and more

frequent and severe wildfires due to

climate change would further diminish

air quality, increase incidences of

respiratory illness, impair visibility, and

disrupt outdoor activities, sometimes

thousands of miles from the location of

the fire. Meanwhile, sea level rise has

amplified coastal flooding and erosion

impacts, requiring the installation of

costly pump stations, flooding streets,

and increasing storm surge damages.

Tens of billions of dollars of U.S. real

estate could be below sea level by 2050

under some scenarios. Increased

frequency and duration of drought will

reduce agricultural productivity in some

regions, accelerate depletion of water

supplies for irrigation, and expand the

distribution and incidence of pests and

diseases for crops and livestock. The

NCA4 also recognized that climate

change can increase risks to national

47 IPCC, 2018.

48 IPCC, 2021.

49 USGCRP, 2018.

50 NIFC (National Interagency Fire Center). 2021.

Total wildland fires and acres (1983–2020).

Accessed August 2021. https://www.nifc.gov/

fireInfo/fireInfo_stats_totalFires.html.

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Frm 00013

security, both through direct impacts on

military infrastructure and by affecting

factors such as food and water

availability that can exacerbate conflict

outside U.S. borders. Droughts, floods,

storm surges, wildfires, and other

extreme events stress nations and

people through loss of life,

displacement of populations, and

impacts on livelihoods.51 The NCA5

further reinforces the science showing

that climate change will have many

impacts on the U.S., as described above

in the preamble. Particularly relevant

for these rules, the NCA5 states that

climate change affects all aspects of the

energy system-supply, delivery, and

demand-through the increased

frequency, intensity, and duration of

extreme events and through changing

climate trends.’’ 52

EPA modeling efforts can further

illustrate how these impacts from

climate change may be experienced

across the U.S. EPA’s Framework for

Evaluating Damages and Impacts

(FrEDI) 53 uses information from over 30

peer-reviewed climate change impact

studies to project the physical and

economic impacts of climate change to

the U.S. resulting from future

temperature changes. These impacts are

projected for specific regions within the

U.S. and for more than 20 impact

categories, which span a large number

of sectors of the U.S. economy.54 Using

51 USGCRP, 2018.

52 Jay, A.K., A.R. Crimmins, C.W. Avery, T.A.

Dahl, R.S. Dodder, B.D. Hamlington, A. Lustig, K.

Marvel, P.A. Méndez-Lazaro, M.S. Osler, A.

Terando, E.S. Weeks, and A. Zycherman, 2023: Ch.

1. Overview: Understanding risks, impacts, and

responses. In: Fifth National Climate Assessment.

Crimmins, A.R., C.W. Avery, D.R. Easterling, K.E.

Kunkel, B.C. Stewart, and T.K. Maycock, Eds. U.S.

Global Change Research Program, Washington, DC,

USA. https://doi.org/10.7930/NCA5.2023.CH1.

53 (1) Hartin, C., et al. (2023). Advancing the

estimation of future climate impacts within the

United States. Earth Syst. Dynam., 14, 1015–1037,

https://doi.org/10.5194/esd-14-1015-2023. (2)

Supplementary Material for the Regulatory Impact

Analysis for the Final Rulemaking, Standards of

Performance for New, Reconstructed, and Modified

Sources and Emissions Guidelines for Existing

Sources: Oil and Natural Gas Sector Climate

Review, ‘‘Report on the Social Cost of Greenhouse

Gases: Estimates Incorporating Recent Scientific

Advances,’’ Docket ID No. EPA–HQ–OAR–2021–

0317, November 2023, (3) The Long-Term Strategy

of the United States: Pathways to Net-Zero

Greenhouse Gas Emissions by 2050. Published by

the U.S. Department of State and the U.S. Executive

Office of the President, Washington DC. November

2021, (4) Climate Risk Exposure: An Assessment of

the Federal Government’s Financial Risks to

Climate Change, White Paper, Office of

Management and Budget, April 2022.

54 EPA (2021). Technical Documentation on the

Framework for Evaluating Damages and Impacts

(FrEDI). U.S. Environmental Protection Agency,

EPA 430–R–21–004, https://www.epa.gov/cira/

fredi. Documentation has been subject to both a

public review comment period and an independent

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this framework, the EPA estimates that

global emission projections, with no

additional mitigation, will result in

significant climate-related damages to

the U.S.55 These damages to the U.S.

would mainly be from increases in lives

lost due to increases in temperatures, as

well as impacts to human health from

increases in climate-driven changes in

air quality, dust and wildfire smoke

exposure, and incidence of suicide.

Additional major climate-related

damages would occur to U.S.

infrastructure such as roads and rail, as

well as transportation impacts and

coastal flooding from sea level rise,

increases in property damage from

tropical cyclones, and reductions in

labor hours worked in outdoor settings

and buildings without air conditioning.

These impacts are also projected to vary

from region to region with the

Southeast, for example, projected to see

some of the largest damages from sea

level rise, the West Coast projected to

experience damages from wildfire

smoke more than other parts of the

country, and the Northern Plains states

projected to see a higher proportion of

damages to rail and road infrastructure.

While information on the distribution of

climate impacts helps to better

understand the ways in which climate

change may impact the U.S., recent

analyses are still only a partial

assessment of climate impacts relevant

to U.S. interests and in addition do not

reflect increased damages that occur due

to interactions between different sectors

impacted by climate change or all the

ways in which physical impacts of

climate change occurring abroad have

spillover effects in different regions of

the U.S.

Some GHGs also have impacts beyond

those mediated through climate change.

For example, elevated concentrations of

CO2 stimulate plant growth (which can

be positive in the case of beneficial

species, but negative in terms of weeds

and invasive species, and can also lead

to a reduction in plant

micronutrients 56) and cause ocean

acidification. Nitrous oxide depletes the

levels of protective stratospheric

expert peer review, following EPA peer-review

guidelines.

55 Compared to a world with no additional

warming after the model baseline (1986–2005).

56 Ziska, L., A. Crimmins, A. Auclair, S. DeGrasse,

J.F. Garofalo, A.S. Khan, I. Loladze, A.A. Pérez de

León, A. Showler, J. Thurston, and I. Walls, 2016:

Ch. 7: Food Safety, Nutrition, and Distribution. The

Impacts of Climate Change on Human Health in the

United States: A Scientific Assessment. U.S. Global

Change Research Program, Washington, DC, 189–

216. https://health2016.globalchange.gov/low/

ClimateHealth2016_07_Food_small.pdf.

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ozone.57 Methane reacts to form

tropospheric ozone.

Section XII.E of this preamble

discusses the impacts of GHG emissions

on individuals living in socially and

economically vulnerable communities.

While the EPA did not conduct

modeling to specifically quantify

changes in climate impacts resulting

from these rules in terms of avoided

temperature change or sea-level rise, the

Agency did quantify climate benefits by

monetizing the emission reductions

through the application of the social

cost of greenhouse gases (SC–GHGs), as

described in section XII.D of this

preamble.

These scientific assessments, the EPA

analyses, and documented observed

changes in the climate of the planet and

of the U.S. present clear support

regarding the current and future dangers

of climate change and the importance of

GHG emissions mitigation.

IV. Recent Developments in Emissions

Controls and the Electric Power Sector

In this section, we discuss

background information about the

electric power sector and controls

available to limit GHG pollution from

the fossil fuel-fired power plants

regulated by these final rules, and then

discuss several recent developments

that are relevant for determining the

BSER for these sources. After giving

some general background, we first

discuss CCS and explain that its costs

have fallen significantly. Lower costs

are central for the EPA’s determination

that CCS is the BSER for certain existing

coal-fired steam generating units and

certain new natural gas-fired

combustion turbines. Second, we

discuss natural gas co-firing for coalfired steam generating units and explain

recent reductions in cost for this

approach as well as its widespread

availability and current and potential

deployment within this subcategory.

Third, we discuss highly efficient

generation as a BSER technology for

new and reconstructed simple cycle and

combined cycle combustion turbine

EGUs. The emission reductions

achieved by highly efficient turbines are

well demonstrated in the power sector,

and along with operational and

maintenance best practices, represent a

cost-effective technology that reduces

fuel consumption. Finally, we discuss

key developments in the electric power

sector that influence which units can

57 WMO (World Meteorological Organization),

Scientific Assessment of Ozone Depletion: 2018,

Global Ozone Research and Monitoring Project—

Report No. 58, 588

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