Mandatory Greenhouse Gas 

Reporting Rule: EPA's Response 

to Public Comments 

Volume No.: 9 

Legal Issues 
September 2009 

Legal Issues

U. S. Environmental Protection Agency 

Office of Atmosphere Programs 

Climate Change Division 

Washington, D.C. 
iv

FOREWORD 

This document provides EPA’s responses to public comments on EPA’s Proposed Mandatory 

Greenhouse Gas Reporting Rule. EPA published a Notice of Proposed Rulemaking in the 

Federal Register on April 10, 2009 (74 FR 16448). EPA received comments on this proposed 

rule via mail, e-mail, facsimile, and at two public hearings held in Washington, DC and 

Sacramento, California in April 2009. Copies of all comments submitted are available at the 

EPA Docket Center Public Reading Room. Comments letters and transcripts of the public 

hearings are also available electronically through http://www.regulations.gov by searching 

Docket ID EPA-HQ-OAR-2008-0508. 

Due to the size and scope of this rulemaking, EPA prepared this document in multiple volumes, 

with each volume focusing on a different broad subject area of the rule. This volume of the 

document provides EPA’s responses to significant public comments received for Legal Issues. 

Although the other volumes provide the verbatim text of comments extracted from the original 

letter or public hearing transcript, this volume summarizes the significant, relevant legal 

comments and provides responses thereto. In some cases, EPA provided responses to specific 

comments or groups of similar comments in the preamble to the final rulemaking. Rather than 

repeating those responses in this document, EPA has referenced the preamble. 

While every effort was made to include all significant comments related to Legal Issues in this 

volume, some comments inevitably overlap multiple subject areas. For comments that 

overlapped two or more subject areas, EPA assigned the comment to a single subject category 

based on an assessment of the principle subject of the comment. For this reason, EPA 

encourages the public to read the other volumes of this document with subject areas that may be 

relevant to Legal Issues. 

The primary contact regarding questions or comments on this document is: 

 Carole Cook (202) 343-9263 

 U.S. Environmental Protection Agency 

 Office of Atmospheric Programs 

 Climate Change Division 

 Mail Code 6207-J 

 1200 Pennsylvania Avenue, NW 

 Washington, D.C. 20460 

 ghgreportingrule@epa.gov 
v 

TABLE OF CONTENTS 

Section Page

1.1 STATUTORY AUTHORITY ..........................................................................................1 

1.2 CONFIDENTIAL BUSINESS INFORMATION (CBI).................................................21 

1.3 RELATIONSHIP TO OTHER CLEAN AIR ACT PROGRAMS..................................21 

1.4 COMMENTS RELATED TO PROCEDURES ..............................................................22 

1.5 OTHER LEGAL COMMENTS ......................................................................................24 
1 

1. LEGAL ISSUES 

1.1 STATUTORY AUTHORITY 

1.1.1 Appropriations Act

Comment: Several commenters argued that the FY2008 Consolidated Appropriations 

Act (Appropriations Act) is the sole source of authority for the Reporting Rule. They contended 

that EPA’s authority to require GHG reporting stems from the Appropriations Act alone. These 

commenters note that the Joint Explanatory Statement referencing EPA’s Clean Air Act 

authority is not equivalent to statutory language and hence is not binding. Commenters cited to 

Supreme Court precedent to argue that “indicia in committee reports and other legislative history 

as to how the funds should or are expected to be spent do not establish any legal requirements on 

the agency” (citing Lincoln v. Vigil, 508 US 182, 192-93 (1993); Cherokee Nation v. Leavitt, 

543 US 631, 646 (2005) (“The relevant case law makes clear that restrictive language contained 

in Committee Reports is not legally binding.”)). 

Other commenters, on the other hand, argued that the Appropriations Act could not 

provide independent legal authorization for the reporting rule. Some argued that appropriations 

bills do not provide broad and enduring authority for agencies to create new programs. Rather, 

they continued, appropriations bills are time limited, creating funding and policy actions that 

cannot extend beyond the scope of the direction in the bill (citing e.g., Tennessee Valley 

Authority v. Hill, 437 U.S. 153, 190-91 (1978); Cobell v. Norton, 428 F.3d 1070 (D.C. Cir. 

2005)). They also pointed to the example of how for many years Congress included a 

moratorium on the development of American offshore oil and natural gas resources in 

appropriations bills – however, because of the time limited nature of the appropriations bills, the 

moratorium had to be inserted for each fiscal year. They argued that the GHG reporting 

requirement must be read in a similar context. 

Finally, still other commenters generally noted that it was not clear on what statutory 

authority EPA was relying. They pointed to interagency comments on a draft of the proposed 

rule from the last Administration to argue that EPA has recognized that the statutory language of 

the Appropriations Act “does not, in its own terms, indicate what authority EPA is to invoke in 

order to require mandatory emissions reporting of greenhouse gases or otherwise indicate a 

policy purpose for this endeavor.” (See Doc. No. EPA-HQ-OAR-2008-0508-0056.2). 

Response: As discussed in the preamble, EPA is issuing this rule under the authority of 

the Clean Air Act (CAA or Act), not the Appropriations Act. The Appropriations Act instructed 

that EPA spend a specific amount of money on a rule requiring the reporting of GHG emissions 

across the economy. It did not prohibit rulemaking unless an appropriation of funds is enacted 

each year as implied by some of the commenters. 

The Joint Explanatory Statement accompanying the Appropriations Act noted that EPA 

should use its existing CAA authority for the rule. As discussed below, EPA has ample authority 

under the CAA for this rule, and thus, did not and does not need to rely on any authority 

conveyed in the Appropriations Act for this rule. As discussed in detail below, EPA could have 

issued this rule absent the direct instruction from Congress to spend at least a certain amount of 

money on a mandatory GHG reporting rule. 
2 

Comment: Some commenters asserted various legal flaws with the rule to the extent it 

was authorized by the Appropriations Act. Some commenters took the position that the 

Appropriations Act authorized a one-time expenditure of money, and thus authorized only a onetime data collection and not a rule with annual reporting requirements across many sectors of the 

economy. They continued that the limited funds authorized by Congress rendered it impossible 

for EPA to maintain the allegedly indefinite and overly expansive reporting program proposed. 

At least one commenter made the additional argument that the one time data collection could 

occur only in the fiscal year for which the appropriation was issued. At least one commenter 

cited interagency comments on a draft of the proposed rule from the last Administration to 

support its argument that EPA recognized that “[b]y proceeding using the authority of the 

Appropriations Act, rather than the Clean Air Act, EPA would be limiting the scope and time 

period that the program would be effective, consistent with the appropriations law that made 

available the funds to create this program.” (See Doc. No. EPA-HQ-OAR-2008-0508-0056.2.) 

Moreover, because they argued that the Reporting Rule is authorized by the 

Appropriations Act, and not the Clean Air Act (CAA), commenters contended that violations of 

the Reporting Rule would not and cannot be violations of the Clean Air Act, enforceable under 

the CAA; moreover, the Appropriations Act cannot be read to provide independent enforcement 

authority. Other commenters noted that section 821 of the CAA Amendments of 1990 also is not 

part of the CAA and that to the extent the reporting rule relies on 821 it also is not enforceable 

under the CAA. Other commenters argued that the Appropriations Act language was so scarce 

and the issues related to which industry sectors to cover so important, that the Appropriations 

Act violated the nondelegation doctrine (e.g., Congress should be making the decisions that EPA 

is making in the rule). Specifically, they argued that by failing to delineate the policy behind, 

and boundaries of, this delegated authority, the Appropriations Act violates the separation of 

powers doctrine (citing St. Louis Terminal Merchants’ Bridge Ry. Co., 188 F. 181, 191 (1911); 

Railway Executives’ Ass’n v. Skinner, 934 F.2d 1096 (9th Cir. 1991); Ministretta vs. United 

States, 488 U.S. 361 (1989)). They questioned whether one sentence in the Appropriations Act is 

sufficient to meet these standards. 

At least one commenter argued that the Appropriations language authorized the reporting 

of emissions, but not the monitoring or other requirements of the proposed rule because 

appropriations legislation is to be construed narrowly. They took the position that this is a socalled Chevron Step One issue because the term “emissions” unambiguously means material that 

is actually discharged into the air. Therefore, they concluded, EPA has no authority to require 

anything more than emissions to be reported. Finally, at least one commenter argued that because 

we missed the statutory deadlines for proposing and finalizing the rule, the Appropriations Act 

no longer authorized the rule. 

Response: As discussed above, this rule is being issued pursuant to EPA’s authority 

under the CAA, not the Appropriations Act. 

The FY2008 and FY 2009 Appropriations Acts instructed EPA to spend a minimum 

amount of money on such a rule. These funds could be used for no other purpose. The funds 

appropriated were available for obligation in Fiscal Years 2008-2010. The fact that the 

Appropriations Acts cover individual fiscal years does not mean that EPA cannot write a rule 

using money from those fiscal years that requires ongoing reporting requirements. The only 

limits are on the dates by which EPA must obligate the specific appropriated funds for the 

rulemaking effort, and EPA met those requirements. Moreover, there is no limit on EPA’s ability 
3 

to write a rule that goes further than required by the instructions in the Appropriations Act, as 

long as the monies identified in the Appropriations Act are spent on the purposes indicated in the 

Appropriations Act and EPA has other authority for its actions, as is the case here. As discussed 

below EPA was authorized to develop this rulemaking under the CAA before the Appropriations 

Act was passed. The Appropriations Act merely required that EPA spend a certain amount of 

money on such an effort. As explained below, this rule is consistent with the instructions on how 

to spend the funds provided in the Appropriations Act. The fact that EPA missed the deadlines in 

the Appropriations Act for proposing and finalizing the rule did not remove any authority EPA 

has to expend the funds or to issue the rule under the authority of the CAA, anymore than EPA’s 

missing other general statutory deadlines for issuing rules strips EPA of authority to issue those 

rules, albeit late. The language in the Appropriations Act was not written in a way that removed 

EPA’s preexisting regulatory authority if the Agency missed the deadline for promulgating the 

final rule. See AMC v. Thomas, 772 F.2d 640, 643-44 (10th Cir. 1985) (1983 amendment to the 

Uranium Mill Tailings Radiation Control Act required that if EPA failed promulgate standards 

by a certain date the “authority of the Administrator to promulgate such standards shall 

terminate” in favor of the Nuclear Energy Commission.). 

This rule is being issued pursuant to the CAA, therefore, violations of this rule would be 

violations of requirements of the CAA. Because this rule is being issued pursuant to sections 

114(a) and 208 of the CAA, any concerns about whether section 821 of the 1990 CAA 

Amendments is part of the CAA and enforceable under it are irrelevant. 

Similarly, because this rule is being issued pursuant to the CAA, not the Appropriations 

Act, comments questioning whether one sentence in an Appropriations Act was a valid 

delegation of authority are irrelevant. The Appropriation Act required that EPA obligate a 

minimum amount of funds to develop the rule by September 30, 2009 and the Agency did so. 

Finally, while it is true that the Appropriations Act discusses the reporting of 

“emissions” it does not define the term, nor prohibit the collection of information necessary to 

verify the accuracy of such emissions. Assuring the accuracy of the data regarding the level of 

GHG emissions renders that information more valuable and useful. This approach is consistent 

with the definition of “emissions data” in EPA’s regulations, which recognizes that “emissions 

data” covers data elements beyond the mere level of pollutants being emitted. See 40 C.F.R. 

2.301(a)(defining emissions data to include “[i]nformation necessary to determine the identity, 

amount, frequency, concentration, or other characteristics . . . of any emission . . . .”); 56 Fed. 

Reg. 7642 (1991) (clarifying, “without attempting to be comprehensive, that information which 

the EPA generally considers to be emissions data . . . .”). See below for further discussion of 

EPA’s authority to gather information under this rule. 

 

1.1.2 Clean Air Act

Comment: Some commenters questioned the use of the Clean Air Act for any action 

related to GHG emissions, including this reporting rule. They generally argued that the Clean 

Air Act was not written or intended to deal with global issues such as climate change. They 

provided a brief review of the Clean Air Act in support of their argument that EPA lacks the 

authority for this rule regarding GHGs. Other commenters noted that EPA has previously 

indicated that the CAA is not the appropriate vehicle for regulating GHG emissions, citing the 

Advance Notice of Proposed Rulemaking (ANPR), 73 Fed. Reg. 44,354 (July 30, 2008), and 

argued that any regulation under the Act, with respect to particular sources, requires specific 

findings by EPA of the need for such regulations. They suggest using other authorities, such as 
4 

the TRI. They argue that the Joint Explanatory statement noting that EPA should use CAA 

authority is not binding and that the statute itself is ambiguous. 

Response: The Supreme Court settled the issue of whether GHGs are “air pollutants” 

that may be regulated under the CAA (in the event any requisite findings are made first). 

Comments continuing to argue to the contrary are not relevant at this point. Importantly, as 

discussed below, there are no findings required before EPA may gather information regarding 

an air pollutant under section 114 and 208, as long as that information is related to carrying out 

the CAA (as is the information being gathered by this rule). 

 Note that EPA’s gathering data under this rule to inform its analysis of whether and how 

to use various authorities under the CAA does not mean that EPA has made any final 

determinations on how to proceed. Although EPA has indicated plans to regulate GHG 

emissions under certain provisions of the CAA, see Notice of Upcoming Joint Rulemaking to 

Establish Vehicle GHG Emissions Standards and CAFE Standards, 74 Fed. Reg. 24007 (May 

22, 2009), EPA is still in the process of evaluating other authorities and considering the myriad 

of pending petitions, ongoing rulemakings and litigation regarding EPA’s use of the CAA to 

address GHG emissions and climate change. The data being gathered by this rule will inform 

those evaluations. 

Finally, as discussed in the proposed rule, the preamble for the final rule, and elsewhere 

in the record for this action, EPA is using its authority under the CAA for this rule. First, the 

Joint Explanatory Statement accompanying the Appropriations Act suggested as much, and as a 

general matter, EPA follows the advice in such statements. See“Administrative Control Of 

Appropriated Funds”, Resources Management Directive 2520, Page 1-6 (December 1, 2004). 

Second, EPA believes that the CAA is the best fit of its existing authorities. For example, the 

Toxics Release Inventory (TRI), which several commenters suggested, does not appear to 

provide adequate authority for both upstream and downstream reporting, and of course such use 

of the TRI is not consistent with the legislative history of the Appropriations Act. It does not 

appear that TRI authority supports a system for upstream source reporting (e.g., TRI could not 

be used to require fuel manufacturers to report the amount of fuels sold into the US economy 

and/or the GHG emissions that ultimately occur when these fuels are combusted in vehicles and 

at downstream stationary sources). Moreover, major GHGs (carbon dioxide, methane, and 

nitrous oxide) are not currently listed under 40 C.F.R. § 372.65 as chemicals to which the TRI 

reporting requirements apply. Finally, some GHG emitters covered by this reporting rule may 

not currently be included in the NAICS covered by TRI. 

Comment: Commenters noted that the “joint explanatory statement” which EPA 

referenced as support for the suggestion that Congress intended that EPA use existing CAA 

authority is not a joint explanatory statement of a committee of conference of the two houses of 

Congress, but rather an “Explanatory Statement” of the Chairman of the House Appropriations 

Committee. See U.S. Government Printing Office, Consolidated Appropriations Act, 2008, 

Committee Print of the Committee on Appropriations, U.S. House of Representatives, on H.R. 

2764 / Public Law 110-161, at 7 (Jan. 2008). Although they admitted that Section 4 of Public 

Law 110-161 (preceding Division A) states that such a statement “shall have the same effect 

with respect to the allocation of funds and implementation of divisions A through K of this Act 

as if it were a joint explanatory statement of a committee of conference,” they continued to 

contend that the statement is not statutory text and cannot provide statutory authority (see 

above). 
5 

 Other commenters noted that while it is likely that reporting of GHG emissions under this 

rulemaking could provide information that “is relevant to EPA’s carrying out a wide variety of 

CAA provisions” that may ultimately address the regulation of GHGs (assuming the 

Administrator has made any relevant endangerment findings), the fact is that the provisions of 

the FY08 Appropriations Act are not a part of the CAA. As such, they continued, it is not clear 

that the FY08 Appropriations Act can serve as the basis for using section 114(a)(1) for making 

reports, undertaking monitoring, sampling or otherwise providing “information” by such persons 

for purposes of sections “111, 112, or 129” of the CAA; for “determining” if any person is in 

violation of “a plan or standard”; or for “carrying out any provision” of the CAA. 

Response: EPA considers the Joint Explanatory Statement to be legislative history that 

guides its implementation of the Appropriations Act. It is EPA’s general policy to follow such 

legislative statements. See “Administrative Control Of Appropriated Funds”, Resources 

Management Directive 2520, Page 1-6 (December 1, 2004). As discussed elsewhere, we are not 

relying on the Appropriations Act itself to provide statutory authority for the rule. We are 

relying on CAA sections 114 and 208 based on our authority under those sections to collect 

information that is relevant to carrying out CAA provisions, as the commenters agree this rule 

will do. Our authority under sections 114 and 208 is not tied to or limited by the Appropriations 

Act. Rather, the Appropriation Act required that EPA obligate at least $3.5 million of 

Environmental Programs and Management funding in Fiscal Years 2008 and 2009 to develop 

this rule. Likewise, our CAA authority would have been just as available to us in the absence of 

any legislative history of the Appropriations Act. 

Comment: Several commenters argued that the proposed rule is too broad, and that 

section 114 does not authorize a rule that requires information from many sectors on an ongoing, 

indefinite basis. Such commenters questioned EPA’s authority to impose such a broad-reaching 

and onerous program, particularly where, they argued, a substantial portion of the entities 

covered are not likely to be regulated under the CAA, because they are insignificant sources with 

respect to GHG emissions. Commenters argued that none of the stated purposes for the data 

justifies the frequency and duration of the reporting requirements, the imposition of burdensome 

new measurement protocols, nor the installation of extensive and expensive instrumentation. 

Further, they continued that EPA already has in its possession and continues to collect, detailed 

GHG emissions inventory data that are sufficient to meet the stated purposes the Agency asserts 

underlie the proposed rule. 

Some commenters contended that the focus on information gathering under section 114 is 

on enforcement, not developing regulatory and nonregulatory options (citing Clarifying 

Statement, 123 Cong. Rec. H8662 (Aug. 4, 1977), as reprinted in 1977 U.S.C.C.A.N. 1502, 

1573; United States v. Louisiana Pac. Corp., 908 F. Supp. 835, 841 (D. Colo. 1995) ("Section 

7414 grants broad authority to the Administrator to ensure compliance with the CAA through 

recordkeeping, monitoring, and inspections.")). Others argued that historically EPA has not 

issued such sweeping requests for information in the form of a regulation, but rather has issued 

targeted letters to particular sources or industrial sectors. They further argued that because this 

expansive rule is a change to prior agency practice, the agency’s expansive interpretation 

underlying the rule would be entitled to minimal, if any, deference (citing Watt v. Alaska, 451 

U.S. 259, 273 (1981)). They cited to interagency comments on a draft of the proposed rule from 

the last Administration to argue that EPA itself has expressed reservations about its authority to 

interpret section 114 as broadly as the rule proposes, (See Doc. No. EPA-HQ-OAR-2008-0508-

0056.2.) Commenters also contended that even in cases where EPA was developing an actual 

regulatory proposal for emission reductions as required by the Act, EPA has previously declined 
6 

to use its authority under Section 114 or has limited such requests because requests under section 

114 can be time-consuming and costly. NRDC v. EPA, 529 F.3d 1077, 1085 (D.C. Cir. 2008). 

Commenters further argued that Congress did not envision a rule of such scope and 

duration when fashioning section 114. Indeed, they continued, for EPA to read 114 so broadly 

would render information collection authorities elsewhere in the rule superfluous. In particular, 

they noted that Congress would not have had to add section 821 of the 1990 CAA Amendments 

regarding the collection of CO2 from power plants covered by the Acid Rain Program if EPA 

were already authorized to collect such data under section 114. They also generally mentioned 

the monitoring requirements in section 112, Title IV, and Title VI of the CAA, among others. 

 

Commenters invoked the concept of “ejusdem generis” when arguing that Congress 

cannot have meant “carrying out any provision of the Act” to be as broad as EPA reads it – 

rather that phrase should be read considering the narrow examples of use of 114 authority that 

precede it (e.g. compliance and establishment of certain standards). Thus, they continued, EPA 

cannot cite to section 103 of the Act to support the information request because section 103 does 

not mention the words “monitoring” or “reporting,” only words such as “studies,” “surveys,” 

“investigations,” and similar discrete, one-time or time-limited activities. They argued that the 

expansive interpretation EPA advocates would violate this rule; thus the catch-all phrase cannot 

be understood to expand section 114 to authorize monitoring and reporting on pollutants not yet 

considered “pollutants subject to the Act.” (see below) Commenters also argued it is not 

appropriate to cite to section 103(g) because this provision relates to nonregulatory actions, and 

specifically states that section 103(g) provides that "[n]othing in this subsection shall be 

construed to authorize the imposition on any person of air pollution control requirements." 

Some commenters argued that EPA did not provide sufficient explanation of which 

provisions of the Act were tied to the information being gathered by the rule. They noted that 

while EPA claims that “it is appropriate for EPA to gather the information required by this rule 

because such information is relevant to EPA’s carrying out a wide variety of CAA provisions,” it 

also admits that it “does not yet know the specific policies that will be adopted,” citing the 

Supporting Statement Part A: Information Collection Request For The Mandatory Reporting Of 

Greenhouse Gases – Proposed Rule, at 3 (Mar. 16, 2009) (OAR-2008-0507-01 79). Commenters 

argued that generalized suppositions as to how the information might be used at some 

indeterminate time in the future provide wholly inadequate justification for an information 

request of the size, scope, and duration that EPA has proposed. They continued that EPA has a 

fundamental obligation to assert a rational basis for implementing its authority under Sections 

114 and 208, which includes in this case a particularized explanation of the reasons EPA 

actually, currently needs this information (versus a “wish list” of programs and policies that 

might be “informed” by gathering this information). 

Commenters cautioned EPA against trying to use the proposed reporting rule as a way to 

anticipate or lay the groundwork for future climate change legislation. They recommended that 

until EPA clearly identifies the policy options it will pursue with respect to greenhouse gas 

emissions, EPA should limit the proposed rule to require the collection of reasonably accurate 

and complete data using readily available sources or estimation methods. They continued that it 

would be inappropriate at this time for EPA to require the level of exquisite precision that would 

be necessary in the context of a compliance-oriented regulatory program. 

At least one commenter argued that EPA cited the CAA, rather than the Appropriations 

Act, as the legal authority for the reporting rule possibly in an effort to justify monitoring as well 
7 

as reporting requirements and to avoid limitations on the duration of the program. However, 

they go on to argue that EPA has exceeded its authority (see above re comments regarding 

Appropriations Act being sole authority for the rule). They also cited to interagency comments 

on a draft of the proposed rule from the last Administration to argue that EPA has expressed 

reservations about its authority to promulgate the proposed rule under section 114, and agrees 

that these alleged reservations are well founded. (See Doc. No. EPA-HQ-OAR-2008-0508-

0056.2.) 

At least one commenter challenged EPA’s interpretation of the “persons” who may be 

subject to an information collection request under section 114. They argued that Section 114 

must be read in light of the entire statute, which they claimed authorizes data collection only 

from certain persons that are subject to the Act’s requirements (citing 42 U.S.C. § 7414(a)(1) and 

asserting Section 114 applicability is limited to “any person who owns or operates any emission 

source, who manufactures emission control equipment or process equipment, who the 

Administrator believes may have information necessary for the purposes set forth in this 

subsection, or who is subject to any requirement of this chapter (except a provision of subchapter 

II . . .)”). Thus they claimed that the applicability of Section 114 is thus limited to entities who 

own or operate an emission source or who are subject to regulation under the CAA for a given 

air pollutant, and EPA’s attempt to collect data under Section 114 from persons who are not 

owners or operators of an emission source or who are not subject to regulation under the CAA 

exceeds Section 114’s authority and is improper 

Other commenters supported EPA’s use of section 114, agreeing that it (and section 208) 

contain broad delegations of authority to collect information, including from sources or 

pollutants not currently subject to regulation under the Act. They noted that Congress repeatedly 

expanded EPA’s authority under 114. For example, they highlighted how Congress has 

broadened its applicability and scope “to persons not previously covered by section 114" (citing 

See H.R. Conf. Rep. 95-564, Aug. 3, 1977; P.L. 93-319, § 6(a)(4) (June 22, 1974); P.L. 95-95, 

§§ 109(d)(3), 113, 305(d) (Aug. 7, 1977); P.L. 95-190, § 14(a)(22), (23) (Nov. 16, 1977); P.L. 

101-549, §§ 302(c), 702(a), (b) (Nov. 15, 1990). Indeed, they contended that the 2008 and 2009 

Appropriations Acts itself is a signal that Congress believes the CAA grants EPA broad 

information gathering authority. These commenters also supported the scope of the rule, and the 

other decisions EPA made in developing the rule (e.g., thresholds and frequency of reporting). 

Response: Section 114 generally authorizes EPA to gather information from any person 

who owns or operates an emissions source, who is subject to a requirement of the CAA, who 

manufacturers control or process equipment, or who the Administrator believes has information 

necessary for the purposes of section 114(a). EPA may gather information for purposes of 

establishing implementation plans or emissions standards, determining compliance, or 

“carrying out any provision” of the Clean Air Act. For these reasons, the Administrator may 

request that a person, on a one-time, periodic or continuous basis, establish and maintain 

records, make reports, install and operate monitoring equipment and, among other things, 

provide such information the Administrator may reasonably require. This language has been 

interpreted to grant EPA broad authority. See, e.g., Dow Chemical Co. v. U.S., 467 U.S. 227, 

233 (1986) (“Regulatory and enforcement authority generally carries with it all modes of 

inquiring and investigation traditionally employed or useful to execute the authority granted.”). 

While it is true that in the past EPA has generally used its information gathering 

authority under section 114 in a more targeted manner, typically sending information collection 

request letters to specific sources for enforcement purposes, or particular industrial sectors for 
8 

regulatory purposes, there is nothing in section 114 that precludes this broader, yet still 

targeted, rulemaking. Nor can interagency comments on drafts of the proposed rule from the 

prior Administration indicate a prior final agency position to the contrary or otherwise 

undermine the deference accorded to EPA when interpreting the statute it was delegated 

authority to implement. Section 114 clearly authorizes the collection of information for purposes 

of carrying out any provision(s) of the Clean Air Act. It is not limited to enforcement or 

compliance assurance activities, as noted by the language clearly indicating that it was 

appropriate to gather information under section 114 to develop implementation plans and 

standards, as well as carry out any provision of the Act. It is not surprising that the enforcement 

case cited by commenters, United States v. Louisiana Pac. Corp., 908 F. Supp. 835, 841 (D. 

Colo. 1995), highlights EPA’s enforcement authority under section 114, but that does not mean 

that EPA does not have authority to gather information for other reasons under that section. As 

explained below, because EPA is analyzing broadly how best to address the problem of climate 

change under the CAA, including both regulatory and nonregulatory options, a rule that 

requests detailed information from a broad spectrum of sources is reasonable. 

 Moreover, EPA is not issuing this rule pursuant to the CAA versus the Appropriations 

Act in order to avoid alleged limitations in the supposed authority granted by the Appropriations 

Act. As discussed in the proposed rule and elsewhere in this document, Congress indicated its 

intent that we use existing authority under the CAA to issue this rule. EPA agreed that the CAA 

was the best legal authority. Regarding commenters’ argument that in an earlier draft of the 

proposed rule EPA “expressed reservations” about its CAA authority, that document does not 

support commenters’ position. First, the interagency review materials placed in the docket 

pursuant to section 307(d)(4)(B)(ii), are not part of the record on review, CAA 307(d)(7)(A) . 

More importantly, the document in question reflects comments from another agency under the 

last Administration – it does not, as commenters alleged, reflect concerns that EPA has 

regarding its CAA authority. It is entirely appropriate for EPA to issue this rule under the CAA 

in that it gathers information to allow a comprehensive assessment of how to best use the CAA to 

address GHG emissions and climate change. 

 Regarding the comments discussing the “persons” who may be asked to provide 

information under section 114, the commenter focused on a subset of the persons listed under 

114. Congress repeatedly broadened the scope of persons subject to 114 – first adding any 

person subject to the CAA in 1977, and then expanding it to include manufactures of control 

equipment and any person “who the Administrator believes may have information necessary for 

the purposes” of section 114. See H.R. Conf. Rep. 95-564, Aug. 3, 1977; P.L. 95-95, §§ 

109(d)(3), 113, 305(d) (Aug. 7, 1977); P.L. 95-190, § 14(a)(22), (23) (Nov. 16, 1977); P.L. 101-

549, §§ 302(c), 702(a), (b) (Nov. 15, 1990); see also CED’s Inc. v. EPA, 745 F.2d 1092, 1097 

(7th Cir.), cert. denied, 471 U.S. 1015 (1984). Thus, section 114 is not limited to persons who 

own or operate an emission sources or are otherwise subject to regulation under the CAA. We 

note, however, that the vast majority of sources reporting under this rule are sources of 

emissions. See below for more discussion on this topic. 

 It is true that EPA has never issued a reporting rule of this scope under section 114 

before. It is also true, however, that EPA has never undertaken such a comprehensive 

evaluation of how to address an air pollution problem under the CAA from the outset. And EPA 

has never undertaken such a comprehensive evaluation of emissions for pollutants like GHGs 

(which are long lived and therefore become well mixed in the atmosphere), and to address a 

phenomenon like climate change (which while global in nature, has regional impacts. Thus, it is 

not surprising that EPA is undertaking a unique approach to gathering and evaluating 
9 

information to allow it to thoroughly analyze how best to address GHG emissions and climate 

change under the CAA. Rather than proceeding piecemeal, gathering information from only 

certain sources, or using the information already available in whatever form, EPA is 

undertaking an effort to gather a consistent, comprehensive and accurate set of data to allow a 

full appraisal of the possible ways to tackle this unique issue. 

 In the proposed and final preambles to this rule, EPA briefly describes some of the 

numerous provisions of the CAA the implementation of which would benefit from the information 

being gathered by this rule. See NPRM, 74 FR 16454-55. In July 2008, EPA discussed potential 

regulations of GHG under the CAA more broadly in an Advance Notice of Proposed Rulemaking 

(ANPR). Regulating Greenhouse Gas Emissions Under the Clean Air Act, 74 Fed. Reg. 44354 

(July 30, 2008). In that ANPR, EPA discussed the various CAA provisions that may be 

applicable to regulation of GHGs, examined the issues that regulating GHGs under those 

provisions might raise, and provided information regarding potential regulatory approaches and 

technologies for reducing GHG emissions. The ANPR contains a long list of provisions of the 

CAA that EPA could potentially use to regulate GHG emissions. For stationary sources, these 

include the National Ambient Air Quality Standard and State Implementation Plan programs 

under sections 107-110 of the Act, New Source Performance Standards (NSPS) under section 

111, National Emission Standards for Hazardous Air Pollutants (NESHAP or MACT) under 

section 112, standards for solid waste combustion under section 129, and the preconstruction 

new source review programs under sections 160-169 and 171-173. The ANPR also discussed 

the various provisions under title II of the Act regarding mobile sources and the fuels used by 

them –- motor vehicles under section 202, nonroad engines under section 213, aircraft under 

section 231, fuels under section 211. 

While, as acknowledged in the ANPR, some of these provisions appear to provide better 

options than others, EPA is in the process of a thorough evaluation of how to best address GHG 

emissions, and the problem of climate change, under the Clean Air Act. The comprehensive 

information being collected in this rulemaking regarding GHG emissions and their origin will 

allow EPA to fully evaluate the options before it, without having to decide to narrow its options 

at the outset. The more targeted approach advocated by some commenters would require some 

level of decision making without the benefit of the information gathered to be by this rule. 

More specifically, in the proposed rule EPA discussed how the information should inform 

decisions about whether and how to use section 111 to establish NSPS for various source 

categories emitting GHGs, including whether there are any additional categories of sources that 

should be listed under section 111(b). There are several pending decisions before EPA 

regarding the use of section 111 to address GHG emissions. For example, EPA has been sued 

regarding our failure to perform the 8-year periodic review of the NSPS for two source 

categories (e.g., nitric acid plans and oil and natural gas production); in the Notices of Intent 

(NOI) to sue for those lawsuits, the plaintiffs specifically mentioned that they believed EPA 

should be establishing GHG standards for those categories as part of the periodic review. The 

Agency has also received a similar NOI regarding the NSPS for landfills. EPA currently has 

pending before it a petition to reconsider the 2008 revisions to the refinery NSPS in part 

regarding EPA’s decision to not establish GHG emissions standards as part of that review. In at 

least two ongoing NSPS reviews (Portland cement and coal preparation plants) stakeholders 

have argued that EPA must include standards for GHG emissions from those source categories. 

EPA also has before it a remand in a judicial challenge to EPA’s decision not to establish GHG 

emissions standards as part of the 2006 review of the industrial, commercial, institutional and 

electric steam generating boilers NSPS. State of New York, et al. v. EPA, No. 06-1322 (D.C. 
10 

Cir) (September 24, 2007 order remanding the case “to EPA for further proceedings in light of 

Massachusetts v. EPA”). Finally, EPA also has in-house a pending petition requesting that EPA 

regulate GHG emissions under numerous mobile source and stationary source CAA provisions, 

including section 111, due to concerns regarding the impact of climate change on the Arctic. 

Regarding permitting programs, in the ANPR, EPA discussed potential revisions to the 

Prevention of Significant Deterioration (PSD) program and title V operating permit program 

regarding GHG emissions. 73 Fed. Reg. at 44497-516. EPA discussed the concept of proposing 

revisions to the applicability thresholds and streamlining options for GHG emissions in order to 

allow the effective and prudent implementation of these programs once they are triggered by 

regulation of GHGs under other provisions of the CAA. The ANPR included a discussion of the 

legal theories of administrative impossibility and absurd results and their relevance to whether 

EPA could immediately apply the statutory applicability thresholds of 100 and 250 tons per year 

(tpy) for GHGs due to the sheer number of sources that could newly be covered by those 

programs at those levels. For example, in the ANPR EPA estimated that the number of PSD 

major sources could increase ten-fold, and title V major sources could increase by a factor of 

more than 30, once GHGs are regulated pollutants under these programs. Utilization of these 

legal arguments would involve an analysis of the number and type of sources that would be 

covered under various thresholds, as well as possible options for streamlining implementation of 

the programs. The information gathered through this rulemaking will assist EPA in continuing 

to evaluate how to best administer the PSD and title V programs consistent with the statute. For 

example, information regarding the amount of fuel sold into commerce will help us evaluate the 

percentage of emissions addressed under various applicability thresholds. The information 

collected under this rule should also prove useful when evaluating technology options for 

sources that trigger the PSD program – by collecting information from a variety of sources 

within a source category, EPA will be able to look closer at sources with lower emissions to see 

what types of emission reduction opportunities exist for other sources. Moreover, the 

geographic distribution, production volumes and characteristics of various fuel types and 

subtypes may also prove useful is setting NSPS or Best Available Control Technology limits for 

some combustion sources. One idea under investigation by EPA is whether lifecycle emissions 

could be relevant to setting stationary source standards (e.g., do certain biomass have lower 

lifecycle CO2 emissions than fossil fuels). In addition, transportation distances from fuel 

sources (e.g., suppliers) to end users may be useful in evaluating cost effectiveness of various 

fuel choices, increases in transportation emissions that may be associated with various fuel 

choices, as well as the overall impact on energy usage and availability. 

As discussed in the proposal, the information required of manufacturers of mobile 

sources should support decisions regarding treatment of those sources under sections 202, 213 

or 231 of the CAA. As with stationary sources, there are several pending petitions requesting 

that EPA regulate GHGs from mobile sources and fuels used by mobile sources. In addition to 

the petition regarding motor vehicles under section 202(a) on remand to EPA after the Supreme 

Court’s decision in Massachusetts v. EPA, there are nine petitions requesting that EPA regulate 

GHG emissions from nonroad engines (e.g., locomotives, marine engines, construction 

equipment) under section 213, rebuilt heavy-duty diesel engines under section 202(a)(3)(D), 

aircraft under section 231, and/or fuels under section 211. The information from fuel suppliers 

would be relevant in analyzing whether to proceed, and particular options for how to proceed, 

under section 211(c) regarding fuels. 

The proposed rule discusses one particular CAA provision that was not raised in the 

ANPR. Section 103 of the Clean Air Act generally authorizes EPA to establish a national 
11 

research and development program for the prevention and control of air pollution. As one 

Congressman noted while debating the 1990 amendments to section 103, 

Research and development is essential in the characterization of the adverse 

effects of air pollution, the development and evaluation of control technologies, 

and the generation of cost effective solutions. We believe that a firm base of 

scientific knowledge provides the foundation for sound and effective policy 

decisions. 

A Legislative History of the Clean Air Act Amendments of 1990 at 1249 (Congressman Roe 

during House Debate on Conference Report). A firm understanding of GHG emissions, from 

both upstream and downstream sources, similarly provides a sound foundation for effective 

research and development actions. 

Under the auspices of this section EPA’s Office of Research and Development has 

conducted and continues to conduct research on both criteria pollutants and greenhouse gas 

emissions. The National Risk Management Research Laboratory evaluates different possible 

energy futures dependent upon potential energy technology development and activity to 

understand emissions of sulfur dioxide, oxides of nitrogen and carbon dioxide (for more 

information see http://www.epa.gov/appcdwww/apb/globalchange). Improved emissions data 

will enable more accurate baseline estimates and a better understanding of how those emissions 

might change under future energy scenarios. Moreover, EPA has issued a variety of grants 

under section 103, indicating the breadth of activities covered by this section. For example, a 

team of researchers are exploring the possible impact of smart growth development practices on 

criteria air pollution and greenhouse gas emissions (see 

http://cfpub.epa.gov/ncer_abstracts/index.cfm/fuseaction/display.abstractDetail/abstract/7405/re

port/0). Another example is the current solicitation for projects to develop and improve air 

pollution emission inventories (http://epa.gov/ncer/rfa/2009/2009_star_air_pollution.html ). 

EPA is interested in supporting research that will advance scientific understanding leading to 

improvements in air pollution emissions information since emission inventories are relied on 

both to develop effective control strategies and reliable information about air quality trends for 

accountability, and to help produce accurate air quality forecasts. The greater our 

understanding regarding the level of emissions, as well as the differences within and between 

source categories, the better our ability to identify and prioritize research and development, as 

well as program, needs. 

Moreover, EPA has implemented several voluntary programs under the authority of CAA 

section 103(g) of the CAA. That subsection states that in carrying out 103(a), 

the Administrator shall conduct a basic engineering research and technology 

program to develop, evaluate, and demonstrate non regulatory strategies and 

technologies for air pollution prevention. . . . . Such program shall include the 

following elements: 

(1) Improvements in nonregulatory strategies and technologies for preventing or 

reducing multiple air pollutants, including . . . . carbon dioxide, from stationary 

sources, including fossil fuel power plants. Such strategies and technologies shall 

include improvements in the relative cost effectiveness and long-range 

implications of various air pollutant reduction and nonregulatory control 

strategies such as energy conservation, including end-use efficiency, and fuelswitching to cleaner fuels. Such strategies and technologies shall be considered 
12 

for existing and new facilities. 

Pursuant to this language, EPA has launched a variety of nonregulatory programs aimed 

at reducing emissions of GHGs, including Climate Leaders, ENERGY STAR, AgSTAR, the 

Coalbed Methane Outreach Program, the Natural Gas STAR Program, the Landfill Methane 

Outreach Program, as well as voluntary partnerships with particular industries to reduce high 

GWP GHG emissions. More information about these and other nonregulatory programs aimed 

at reducing GHG emissions can be found at http://www.epa.gov/climatechange/index.html. 

The information gathered by this rule will improve EPA’s research and development 

program as it relates to GHGs and climate change, as well as the Agency’s nonregulatory 

approaches to preventing or reducing air pollutants. For example, information from direct 

emitters will inform our consideration of energy conservation, end-use efficiency and fuelswitching as possible strategies for reducing overall emissions. Additional data will also 

enhance EPA’s implementation of various programs aimed at encouraging voluntary reductions 

in GHG emissions. This additional data which will be from many of the nation's largest sources 

of GHG emissions, fuel suppliers, and suppliers of industrial gases will help EPA by providing 

more detailed information on possible sources and industrial sectors for EPA to work with in the 

context of these programs and by providing important information that can be used to develop 

and enhance GHG management tools for key sectors, improve consumer oriented programs and 

information, perform quality assessments of existing tools, and measure progress in reducing 

emissions from key sectors. 

 As discussed below, it is entirely appropriate for EPA to gather information for purposes 

of carrying out section 103 in this rule, and doing so is not inconsistent with the language stating 

that nothing in 103(g) should be construed as authorizing the imposition of control requirements. 

That language in 103(g) is best read to mean that EPA must still make whatever requisite 

findings may be required under other sections of the CAA before imposing control requirements, 

even as EPA investigates non-regulatory options for reducing emissions. 

The Agency does not agree that the doctrine of ejusdem generis requires that EPA 

interpret the language of section 114 as narrowly as some commenters advocate (e.g., limited to 

provisions involving emissions standards and for pollutants EPA had decided to control, and not 

research or nonregulatory strategies as mentioned in section 103). The doctrine of ejusdem 

generis is not strictly applied. Courts will not apply the rule where it would defeat or subvert the 

legislative intent or purpose in enacting the statute. See,U.S. v. Alpers, 338 U.S. 680, 682 (1950) 

(The rule of ejusdem generis “is to be resorted to not to obscure and defeat the intent and 

purpose of Congress, but to elucidate its words and effectuate its intent. It cannot be employed to 

render general words meaningless.”). Moreover, it “is only an instrumentality for ascertaining 

the correct meaning of words when there is uncertainty.” Harrison v. PPG Industries, Inc., 446 

U.S. 578 , 588 (1980) (citation omitted). The application of the ejusdem generis rule here would 

frustrate Congressional intent. As discussed further below, it simply would not make sense to 

interpret section 114 to prohibit gathering information on an air pollutant until a decision was 

made regarding whether to control emissions of that air pollutant. The very information being 

gathered under section 114 would assist in that evaluation (e.g.,. does a source category 

“significantly contribute” to air pollutant which endangers under section 111(b)). Thus, even 

reading the listed purposes for gathering information narrowly to include only development of 

emissions standards and implementation plans, or ensure compliance with either, as some 

commenters argue, would not preclude the collecting of information for purposes of evaluating 

whether to use these provisions to address GHGs. 
13 

Moreover, Congress repeatedly expanded EPA’s authority under section 114. The fact 

that Congress highlighted certain potential uses of the information gathered under 114 does not 

mean it limited EPA’s authority to gather information for other purposes. Given the breadth of 

authority granted to EPA in the CAA, it is not surprising that rather than listing each and every 

possible use of information, Congress relied on a catch-all phrase such as “carrying out any

provision” of the Act (emphasis added). See State of New York v. EPA, 443 F.3d 880, 887 (D.C. 

Cir. 2006) (“Only in a Humpty Dumpty world would Congress be required to use superfluous 

words while an agency could ignore an expansive word that Congress did use.”) (footnote 

omitted). 

Indeed, Congress’ use of “any” indicates that it did not intend to limit EPA’s authority to 

only certain kinds of provisions or only regulated air pollutants. See, e.g., Massachusetts v. 

EPA, 549 U.S. 497, 529 n. 26 (2007) (indicating that section 302(g) definition of air pollutant 

was a “sweeping statutory provision” in part because of the use of the term “any” in the 

definition); State of New York v. EPA, 443 F.3d at 885 (noting that in “a series of cases, the 

Supreme Court has drawn upon the word ‘any’ to give the word it modifies an ‘expansive 

meaning’ when there is ‘no reason to contravene the clause's obvious meaning.’”). Indeed, the 

language in section 114(a)(1) is similar to the language in section 307(b)(1) that the Supreme 

Court evaluated in Harrison v. PPG Industries. In that case, the Supreme Court refused to apply 

the doctrine of ejusdem generis to the phrase “any final agency action” in part because the 

Court did not find any uncertainty in the meaning of the phrase “any other final action.” The 

Court noted that when Congress amended 307(b)(1), “it expanded its ambit to include not simply 

‘other final action,’ but rather ‘any other final action.’” 446 U.S. at 588-89 (emphasis in 

original). As with the use of “any” in the phrase “any other final agency action” in 307(b)(1), 

the use of “any” in the phrase “any provision [of the CAA]” also “offers no indication whatever 

that Congress intended the limiting construction” commenters urge. Id. at 589. We similarly 

construe “any provision” to mean exactly what it says, namely, any provision of the Clean Air 

Act. See also Abdus- Shahid M. S. Ali v. Federal Bureau of Prisons et al., 552 U.S. 214 (2008) 

(following reasoning of Harrison when interpreting other statutory language “any other law 

enforcement officer.”). 

Thus, commenters are in error in trying to narrow the reading of “any provision” of the 

Act to include only those provisions that involve emissions standards or air pollutants for which 

certain findings had already been made. Indeed, EPA has a variety of duties in the CAA that 

extend beyond the regulatory, and limiting the scope of section 114 as commenters urge would 

hinder EPA’s ability to implement those provisions, and subvert Congressional intent. See, e.g.,

CAA §103(a)(the Administrator shall establish a national research and development program 

for the prevention and control of air pollution); CAA § 105 (regarding grants in support of air 

pollution planning and control programs); CAA §108(h) (establishment of RACT/BACT/LAER 

clearinghouse); CAA §117 (establishment of advisory committees); CAA §130(establishment of 

emissions factors); CAA § 166(a) (study regarding pollutants hydrocarbons, carbon monoxide, 

photochemical oxidants, and nitrogen oxides and prevention of significant deterioration); CAA § 

169A(a)(3) (study regarding visibility); CAA §183(g) (study regarding the methodology in use 

for establishing a design value for ozone); CAA § 202(a)(3)(D)(study regarding the practice of 

rebuilding heavy-duty engines). There is no indication that Congress intended such limiting 

construction of the Act. See Harrison v. PPG Ind., 446 U.S. at 589.

Nor does reading section 114 to authorize EPA to gather the information required by this 

rule render other parts of the CAA or 821 of the 1990 CAA amendments surplusage. The fact 
14 

that as part of the 1990 CAA Amendments Congress specifically required that EPA gather CO2 

emissions from EGUs subject to the Acid Rain program does not mean that Congress believed 

that EPA did not have any authority to collect that information absent section 821 of the 1990 

CAA Amendments. Rather, it signifies that Congress wanted to mandate that EPA gather such 

information from certain sources, rather than leave it to EPA’s discretion. See, e.g., A 

Legislative History of the Clean Air Act Amendments of 1990 at 2986 (Congressman Moorehead 

noting during House debate that EPA “does not” collect data on CO2 emissions, versus stating 

that EPA can not collect such information); see also NRDC v. EPA, 529 U.S. 1077, 1085 (D.C. 

Cir. 2008) (“But section 114 is not a mandatory provision – it only states that EPA ‘may’ 

require sources to supply data.”). Commenters also generally mention “monitoring 

requirements” in other sections of the Act in support of their argument, but they do not quote or 

cite to specific language in those sections that they believe is rendered surplusage, or otherwise 

indicate how EPA’s interpretation is at conflict with or duplicative with language in those 

sections. Indeed, EPA often uses its authority under section 114 to gather information for 

purposes of administering those provisions. See, e.g., 63 Fed. Reg. 17406 (1998) (information 

collection request no. 1858.01 gathering information on mercury emissions from power plants); 

69 Fed. Reg. 52403 (citing section 114 authority to obtain information on methyl bromide 

stockpiles for purposes of issuing “critical use” exemptions under CAA section 604). The fact 

remains that the language in section 114 clearly authorizes EPA to gather information for 

purposes of carrying out these, and other provisions, of the CAA, and commenters have not 

demonstrated how EPA’s interpretation specifically renders any such language superfluous; 

mere general allegations will not suffice. 

EPA does not believe that as a legal matter it has to have “picked” particular 

approaches before it can gather the information under this rule. The point of gathering 

information is to inform decisions regarding the legal, technical and policy viability of various 

options. To require a narrowing of those options beforehand would be putting the decisional 

cart before the informational horse. 

In addition, the variety of purposes for gathering this information justifies the level of 

accuracy in reporting that the rule strives to achieve, as well as the ongoing annual reporting 

requirements. We disagree with commenters who believe that a less robust reporting program is 

appropriate now merely because we may require more stringent requirements (e.g., greater use 

of CEMs) in the event EPA establishes emissions standards or other requirements. An accurate 

baseline is essential when undertaking the comprehensive review regarding how best to tackle 

the critical issue of climate change. This rule establishes national methods for reporting 

emissions from similar facilities within industrial categories, and the data collected will enable a 

better understanding of emissions within particular sectors as well as across sectors. That type 

and level of detailed information is not available now. Importantly, if and when EPA does move 

forward to address GHG emissions under the CAA, it may revise this rule as appropriate. For 

instance, the requirements for reporting in this rule may meet the requirements for reporting 

under an emission standard in order to ensure compliance, negating the need to promulgate 

separate reporting requirements in the emission standards. On the other hand, EPA may move 

the reporting requirements from this rule to the emission standard. For example, rather than 

include the requirements for manufacturers of light duty vehicles in this final rule, EPA plans to 

address these reporting requirements as part of an EPA proposal to set GHG emissions 

standards for light duty motor vehicles. Thus, while this rule is written to require the annual 

reporting by sources that meet the applicability threshold (unless they meet the test for ceasing 

reporting in 40 CFR 98.2(i)), EPA is well aware that it may become appropriate to revise this 

rule in the future to reflect subsequent activities or requirements. However, given the breadth of 
15 

potential uses of the information (see above), the scope of the effort before EPA regarding 

evaluating how to address GHG and climate change under the CAA, and the current dearth of 

facility-level information (see discussion in general provisions response to comments (RTC) 

regarding the appropriate level of reporting), EPA believes that it is appropriate at this time to 

gather this information on a continuous basis. 

Finally, we note that the Appropriations Act which instructed EPA to spend monies on a 

GHG reporting rule covering “all sectors of the economy” and the accompanying legislative 

language directed EPA to include upstream and downstream sources, and to consider thresholds 

and frequency of reporting. See also FY 2009 Omnibus Appropriations Act, PL 111-8, 123 Stat. 

524, 729 (Mar. 11, 2009)(instructing that “not less than $6,500,000 shall be used for activities to 

develop and publish a final rule . . to begin implementation, to require mandatory reporting of 

greenhouse gas emissions above appropriate thresholds in all sectors of the economy . . . as 

required by Public Law 110-161 .”). This language shows that Congress had in mind a broad 

rule gathering information from a wide variety of sources. As noted above, Congress stated its 

intent that EPA issue this broad rule using our existing authority under the CAA, indicating that 

Congress believed EPA had the authority under the CAA for a rule of this scope. Congress’ 

understanding of EPA’s broad authority demonstrates the reasonableness of EPA’s 

interpretation. 

The Supreme Court has recognized that research and information gathering efforts fit 

with an evaluation of regulatory efforts. Massachusetts v. EPA, 549 U.S. at 530 (“collaboration 

and research do not conflict with any thoughtful regulatory effort; they complement it.”). The 

above discussion shows how a comprehensive inventory of GHG emissions, from both direct 

emitters and suppliers, will allow EPA to undertake a thorough and holistic evaluation of how to 

utilize existing authority under the CAA, both regulatory and nonregulatory, to address GHG 

emissions and climate change. Additional discussions regarding comments on particular sectors 

or data elements may be found elsewhere in this RTC or other RTC in the docket for this action. 

Comment: EPA did not receive many general comments challenging its legal authority 

to gather information from downstream direct emitters of GHGs. Comments questioning the 

necessity of particular data elements under specific subparts generally are addressed in the 

response to comments documents for those subparts. 

One commenter did challenge EPA’s explanation for imposing regulations on the Lead 

Production sector. The commenter argued that because both primary lead smelters and secondary 

lead smelters are already subject to NSPS, and to date EPA has declined to regulate GHG 

emissions under these NSPS, EPA has no reason to include the sector in this reporting rule. 

They also pointed to arguments EPA has made in recent NSPS rulemakings on the topic of 

EPA’s discretion regarding the establishment of GHG standards for existing listed source 

categories as a limit on EPA’s ability to establish GHG standards for lead production (thus, 

making collection of the information under this rule irrelevant). The commenter argued that 

EPA already has sufficient information to find that facilities in the Lead Production sector do not 

warrant regulation of GHGs under Section 111 of the CAA, pointing to EPA’s GHG inventory 

estimates of CO2 emissions from Lead Production to be between 0.2 and 0.3 teragrams of carbon 

dioxide equivalents (Tg CO2 Eq.) at the 95 percent confidence level. EPA, Inventory of U.S. 

Greenhouse Gas Emissions and Sinks: 1990-2007, at 4-56 (Apr. 15, 2009) (hereinafter referred 

to as "EPA GHG Inventory"). They argued that these emissions are 0.00279% to 0.00419% of 

the total emissions estimated from the U.S. in 2007 (7,150.1 Tg CO2 Eq.). They further noted 

that while GHG emissions in the U.S. has generally increased since 1990, EPA found that total 
16 

 

emissions from the Lead Production sector decreased by six percent since 1990, largely due to a 

decrease in primary production (68 percent since 1990) and a transition within the U.S. from 

primary lead production to secondary lead production, which is less emissive than primary 

production, although the decrease leveled off in 2005. Thus, they concluded that because this 

information must be interpreted to not support a finding that emissions of GHGs from this sector 

contribute significantly to air pollution that may reasonably be anticipated to endanger public 

health or welfare, under section 111(b)(1), EPA cannot establish an NSPS for GHG from lead 

product, or gather information related to such a potential standards under this rule. 

Response: In connection with its decision to not regulate GHG emissions from 

refineries, EPA indicated that while it believes it has the discretion during the 8-year NSPS 

reviews to limit its review to those air pollutants for which it already established an emission 

standard, EPA also has the discretion to expand the NSPS to cover additional pollutants as well 

where appropriate.1

 Indeed, the Agency noted that on a number of occasions, including in 

connection with the refineries NSPS, it had in fact added additional pollutants. Thus, the fact 

that EPA has not issued NSPS for GHG emissions from lead production (or any other NSPS 

source category) does not mean that EPA cannot do so in the future. 

Regarding the more specific argument that EPA already knows enough about GHG 

emissions from lead production to eliminate the possibility of an NSPS standard, EPA disagrees. 

The goal of a comprehensive, nationwide GHG emissions profile is to better understand the 

origin and distribution of GHG emissions in the United States. As noted in the preamble to the 

proposed and final rule, national inventory uses top-down methods to develop estimates of entire 

sectors. As a result, they lack detail on specific facilities within sectors, which is critical to the 

policy issues before EPA. At this time EPA has not made any final decisions about issuing (or 

not) emission standards for any existing NSPS source categories, nor has EPA indicated how it 

would make such a decision. Moreover, as noted above, the emissions information will assist in 

carrying out other provisions of the CAA as well. 

 Comment: Some commenters argued that EPA fails to cite any specific provision of the 

CAA giving it authority to require reporting by upstream sources of industrial GHGs such as 

producers and importers of these gases. They stated that CAA § 114 relates primarily to statutory 

programs relevant to emissions of pollutants from stationary sources. 

Some commenters noted that, to date, some fluorinated gases such as HFCs are not 

regulated as pollutants under the CAA. They argued that the existing authority for reporting of 

ozone depleting substances ("ODS"), such as HCFCs, is found in Title VI of the CAA, which is 

not specifically referenced by CAA § 114. Consequently, they continued, it is far from clear that 

EPA has authority under the CAA to require reporting from producers and manufacturers of 

HFCs and other unregulated fluorinated GHGs. For these same reasons, they questioned whether 

a violation of the Reporting Rule, particularly regarding suppliers of unregulated industrial 

GHGs such as HFCs, can be enforceable under the CAA. 

Regarding subpart MM, Suppliers of Petroleum Products, some industry commenters 

argued that EPA is exceeding its authority granted under the 2008 Appropriations Act to collect 

greenhouse gas emissions data. They contended that "emissions" mean material that is actually 

discharged into the air, and thus, EPA does not have authority to collect product emissions, or 

1 We note that the Agency's decision not to regulate GHGs form refineries is currently the subject of a pending 

petition for reconsideration. That petition questions EPA's conclusion that the decision to add addition pollutants is 

discretionary, not mandatory.
17 

production and distribution information, in this rule. On the other hand, another commenter took 

the position that reporting of fuel production information is a reasonable requirement and 

relevant to EPA’s mission under the CAA, as acknowledged in the proposed rule in anticipation 

of needing “useful information to EPA to assess the lifecycle GHG emissions associated with 

petroleum refining.” 

Response: As noted above, section 114 authorizes EPA to gather information from any 

person who is subject to a requirement of the Act (other than engine manufacturers) or who may 

have information the Administrator believes is necessary for purposes of section 114(a) (which 

in turn references carrying out any provision of the Act). Many suppliers of petroleum products 

are subject to requirements under section 211 of the Act and thus are covered by section 114. In 

addition, the Administrator believes that other upstream suppliers have information that is 

necessary for purposes of carrying out an evaluation of how to use the CAA to address GHG 

emissions and climate change. As discussed above, emissions data are not limited to information 

regarding the actual level of emissions from a smokestack. Moreover, as also discussed above, 

EPA is issuing this rule under section 114 of the CAA, which allows EPA to gather any 

information it deems necessary for carrying out any provision of the Act. 

The information gathered from suppliers of fossil fuels, in particular petroleum products, 

is relevant to an evaluation of possible regulation of fuels under title II of the CAA, as well as for 

potential efforts to address GHG emissions at downstream sources. Note that some vehicles use 

natural gas as a fuel, and that there is interest in expanding the use of natural gas as a 

transportation fuel, thus information from natural gas suppliers will assist EPA in its evaluation 

of whether to undertake possible programs to promote natural gas as a transportation fuel. 

Information regarding fuel supply will also allow EPA to evaluate potential options for 

downstream emitters. For example, fuel switching and the use of clean fuels are possible 

technologies to be evaluated for stationary source standards and technologies. As standard fuels 

become more expensive and more scarce, stationary sources may consider burning less 

traditional fuels. Knowing the volume of the various types of fuels and their distribution will 

help EPA evaluate options. For example, knowing the US inventory of natural gas will help us 

evaluate which stationary source sectors using natural gas to prioritize for potential NSPS 

standards based on the percentage of the natural gas inventory they represent. It will help us 

evaluate which categories of sources and what size units in those categories make sense from an 

emissions standards perspective. 

This information will also help EPA evaluate whether this rule does collect information 

from the vast majority of combustion sources, or whether there may be downstream pockets of 

missing data we should consider collecting. We also are requesting information about non-fuel 

products made from the same feedstocks as the fuels from suppliers to allow us to verify the fuel 

production numbers (e.g., will allow us to utilize mass balance approach to verify calculations) . 

Information from suppliers of industrial greenhouse gases is relevant to understanding 

the quantities and types of gases being supplied in the economy, in particular those that could be 

emitted downstream which will aid in evaluating action under CAA section 111, as well as 

various sections of title VI (e.g., 609 and 612) that address substitutes to ozone depleting 

substances. For example, information regarding HFC production will assist us in calibrating the 

model we use to estimate HFC emissions from air conditioning units. If and when we go final 

with regulations covering users (and therefore direct emitters) of these industrial GHGs (e.g., 

electronics manufacturing), the information from suppliers will help us quality assure the 
18 

information from direct emitters and determine if there are additional sources of emissions from 

which we need to gather information. In the meantime, it will give us a picture of the amount of 

such GHGs in commerce, and used by such direct emitting categories. 

We note that although section 114 does not list title VI explicitly, the requirements of title 

VI are clearly provisions of the CAA and covered by the phrase “any provision” of the Act 

discussed above. If Congress had intended to exclude title VI from section 114, it would not 

have used such a broad phrase, and it could have made an explicit exclusion. Indeed, EPA has 

repeatedly used its authority under section 114 to carry out various provisions of Title VI. For 

example, prior to promulgating a rule establishing the critical use exemption program under 

section 604(d)(6) of the Clean Air Act, EPA relied on section 114 as authority for collecting 

information on the amount of methyl bromide held in inventory (69 FR 52403). 

Regarding the collection of information related to nitrogen-based fertilizers from sources 

already reporting under the rule, this data will help EPA evaluate the use of fertilizers as a 

source of N2O emissions. Such information will also inform potential upstream emissions 

analysis undertaken for fuels under section 211. EPA may subsequently gather additional 

information to hone its analysis, but EPA believes that this information, from sources such as 

ammonia and nitric acid manufacturing, will provide a good foundation for further evaluation of 

this source of GHG emissions. 

The response to comments documents on specific subparts may provide additional 

rationale supporting the collection of specific data elements. 

Comment: At least one commenter argued that sections 114 and 208 of the Clean Air 

Act do not authorize the reporting of data under proposed subpart DD regarding SF6 from 

electrical equipment. In particular, they challenged our ability to require reporting of SF6 

nameplate capacity. 

Other commenters challenged EPA’s authority to gather information from coal suppliers 

under proposed subpart KK. In particular, they argued that coal supplier reporting is not 

necessary to accomplish this goal of GHG data collection in all sectors of the economy because 

EPA's proposed regulations also require direct reporting by virtually all sources in the economy 

that combust coal, including electric generating units ("EGUs") and other industrial sources. As a 

result, they continued, data collected through coal supplier reporting would be almost completely 

duplicative of data collected through direct reporting by those who actually combust the coal. 

Another commenter questioned EPA’s ability to require coal exporters to provide carbon content 

of shipments, in part because the GHG emissions would be generated outside the U.S. One 

commenter argued that as a threshold requirement for including this category, EPA must supply 

an interpretation of the critical term "appropriate," set forth the factors it considered in applying 

the "appropriateness" standard, and explain how and why these factors led it to conclude that a 

particular reporting category should be required (citing Motor Vehicles Man. Ass''n v. State 

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). 

At least one commenter questioned the need for data on electricity purchases, which they 

argued was far removed from the statutory language regarding collection of emissions data. 

Response: As discussed in the final rule preamble, at this time, EPA is not going final 

with proposed subparts DD or KK, or with gathering information on electricity purchases. Thus, 

we are not responding to the comment regarding our legal authority for those subparts now. As 
19 

EPA considers next steps, we will be reviewing the public comments and other relevant 

information. 

Comment: Some commenters argued that 114 can be used only for the collection of 

information related to pollutants that EPA has already regulated. For example, they argued that 

EPA could not gather information on GHGs until after it had finalized the proposed 

endangerment finding under section 202(a). Others similarly argued that EPA could gather 

information only from regulated sources, only after regulations were issued. 

 More specifically, they pointed out that section 114 cites to the development of 

implementation plans under section 110, and emissions standards under sections 111 and 112, to 

support their argument that certain findings regarding pollutants have to occur before those 

actions can occur, and hence before information regarding those pollutants can be gathered. For 

example, they argued that before standards can be developed under Section 110, a NAAQS must 

be set, yet because EPA has yet to determine if GHGs are a regulated pollutant under the Act or 

develop a standard under Section 110 that would be a NAAQS determination, section 114 could 

not be used to “develop or assist in the development” of an implementation plan. They made a 

similar argument regarding sections 111 and 112. Until those activities take place, commenters 

argued, GHGs are not subject to the CAA and cannot be the subject of a 114 information request. 

Response: As discussed earlier and in the preamble to the final rule, we disagree with 

commenters who argue that we cannot use sections 114 or 208 of the CAA to gather information 

on a pollutant until we have issued an endangerment finding for that pollutant, or actually 

decided to regulate it under the CAA. As discussed above, the statute is not so inflexible. For 

example, the information collected under sections 114 and 208 could inform the contribution 

element of endangerment determinations (e.g., whether emissions from the relevant sector 

contribute to air pollution which may reasonably be anticipated to endanger public health or 

welfare). Similarly, information gathered under these sections could inform decisions on 

whether to regulate a pollutant or source category. Indeed, section 112(b)(4) clearly states that 

“the Administrator may use any authority available” to acquire additional information when 

evaluating whether to modify the list of hazardous air pollutants under section 112(b), indicating 

that Congress anticipated EPA would gather information on a pollutant before deciding, indeed 

as part of deciding, whether the pollutant poses a danger. Commenters’ interpretation would 

prevent EPA from gathering information that could be critical to key decisions until after those 

decisions are made. EPA does not agree with, and will not adopt, such an interpretation. 

1.1.3 Miscellaneous

Comment: Commenters argued that the rule is unjustifiably complex and exceeds EPA's 

statutory authority as intended by Congress. Specifically, they stated that the rule seems to be 

based on the California Climate Registry program and the United Nations' Intergovernmental 

Panel on Climate Change GHG emission estimation methodology, rather than on the statutory 

language authorizing EPA to promulgate a GHG reporting rule. They proposed that as an 

alternative to the current proposal, EPA easily could have satisfied its obligation under the 2008 

bill by simply requiring that emissions of carbon dioxide, methane, nitrous oxide and the other 

GHGs be reported under the TRI program or a similar program established under the Clean Air 

Act. 

Response: Commenters do not specify exactly how they believe EPA exceeded its 
20 

authority, or why drawing on accepted existing emission estimation methodologies in the 

development of the requirements in this final rule is inappropriate – rather they merely claim 

that EPA went beyond the bare minimum necessary to satisfy the language in the Appropriations 

Act. EPA has developed a rule that will generate the type and level of information the Agency 

believes is appropriate for purposes of undertaking a comprehensive evaluation of whether and 

how to utilize the CAA to address GHG emissions and climate change. Generally, although EPA 

reviewed existing methodologies when developing the proposed rule, it based the rule on those 

methodologies that were appropriate for CAA purposes. The proposed rule and the final rule 

talk at length about EPA’s analysis of existing methodologies and how we developed the 

requirements of the final rule. See elsewhere for a discussion regarding use of the TRI. 

Comment: Commenters argued that the relevant Appropriations Act language is best 

interpreted to require that EPA consider both upstream and downstream sources, but that it had 

to pick between collecting data from upstream or downstream sources. In other words, that EPA 

was not authorized to collect data from both entities (e.g., to “double” count emissions). They 

argued that in many cases, it is needlessly costly and burdensome for EPA to require reporting of 

the same unit of GHG at the point of emission and further upstream. If there are compelling 

policy reasons in specific situations that would justify the collection of both upstream production 

and downstream sources, they continued, those situations and policies need to be clearly 

identified. 

Response: We disagree with commenters’ position that the language of either the 

Appropriations Act or the joint explanatory statement limits EPA’s authority to gather 

information from both upstream and downstream sources, even when that information may cover 

the same eventual GHG emissions. Language in the joint explanatory statement directs EPA to 

include reporting from “upstream production and downstream sources.” (Emphasis added). 

The language does not say upstream production or downstream sources, indicating that 

information from both types of sources could be collected “to the extent the Administrator deems 

it appropriate.” The language is clearly authorizes EPA to collect information from both 

upstream and downstream sources, as long as the Administrator believes it is appropriate. 

In response to numerous specific comments on methods for monitoring and calculating 

GHG emissions, reporting requirements, and other comments related to the burden estimated for 

this rule, EPA made many changes to the rule to clarify and simplify the requirements and to 

reduce burden. Thus, EPA has already undertaken efforts to address the burden concern 

underlying this comment. 

As discussed above and in other response to comment documents, the information being 

gathered by this rule will inform a wide variety of regulatory and nonregulatory CAA options 

under consideration. While EPA may be gathering information from both upstream and 

downstream sources, it is not “double counting” them to the extent it is not merely adding the 

totals provided by all parties to arrive at a single total for the country. As explained elsewhere, 

the data from upstream suppliers will provide information relevant to carrying out the CAA, 

either by helping verify downstream source information, or providing details of fuel and 

industrial gas supplies that cannot be garnered in the same level of accuracy from downstream 

sources covered by this rule. EPA has undertaken efforts to minimize the burden on all 

reporting entities and concludes that we have a balance regarding the information requested and 

the burden on the regulated community. 
21 

 Comment: At least one commenter argued that the decisions by EPA regarding which 

businesses and what sectors of the economy would be required to measure and report greenhouse 

gas emissions, as related to which sectors may become subject to regulation, involved choices 

which will affect different industries and regions of the nation in different ways and that these 

choices are best made by elected representatives through Congressional hearings, markups and 

legislative efforts. They note that the legislative process for addressing climate-change, while 

dormant in recent years, has begun, and urge EPA to cede the legislative initiative. The 

commenter took the position that while authority for the proposed rule may exist in the Clean Air 

Act, the rule is not required by the FY2008 Consolidated Appropriations Bill, and that the stated 

purpose of providing information for additional policy decisions is not pressing. 

Response: President Obama and Administrator Jackson have both indicated their 

preference for comprehensive legislation to address the challenge of climate change. 

Nonetheless, especially in the absence of such legislation, EPA must move forward in its 

evaluation of existing authority under the CAA. EPA must address the numerous pending 

petitions, remands, ongoing rulemakings and litigation before it. Moreover, the issue of climate 

change is too important to delay the gathering of information critical to development of any 

future programs. 

 

1.2 CONFIDENTIAL BUSINESS INFORMATION (CBI)

Comment: EPA received numerous comments addressing the issue of CBI. Industry 

commenters generally expressed concern that much of the information reported under this rule 

would be CBI (e.g., production and process data). Many commenters also presented arguments 

regarding why certain information would not be “emissions data” under the CAA. Among the 

various recommendations were that the final rule (i) not require the reporting of such information 

at all, (ii) require only that the source maintain such information on site, but not report it to EPA, 

and/or (iii) clearly state that some classes of information are CBI. Some commenters expressed 

concern about EPA’s ability to maintain the confidentiality of CBI, and thus suggested that EPA 

should provide further detail regarding how we will protect CBI from disclosure. The 

agricultural industry expressed particular concerns about making information about the location 

of facilities public due to concerns about biosecurity and other potential threats. Other 

commenters favored the wide dissemination of information, and argued that the information 

gathered under this rule should be “emissions data” and hence not protected as CBI. 

Response: Please see section II.N of the final rule preamble for a response to these 

comments. 

1.3 RELATIONSHIP TO OTHER CLEAN AIR ACT PROGRAMS

 Comment: We received numerous comments on EPA’s statements in the proposed rule 

that a final rule requiring the monitoring and reporting of GHG emissions would not render 

greenhouse gases “regulated pollutants” under the Clean Air Act. See, e.g., ‘EPA’s 

Interpretation of Regulations that Determine Pollutants Covered By Federal Prevention of 

Significant Deterioration (PSD) Permit Program (Dec. 18, 2008) (“PSD Interpretive Memo). 

Some commenters agreed with the PSD Interpretive Memo, while others objected to the position 

in the memorandum. Many commenters asked EPA to state clearly that this final rule does not 

make GHGs regulated pollutants. At least one commenter suggested that EPA complete its 
22 

reconsideration of the PSD Interpretive Memo prior to finalizing any greenhouse gas emissions 

reporting rule. 

Response: At this time, this reporting rule would not make GHGs pollutants subject to 

regulation under the Act, as it does not provide for actual control of emissions. See, e.g., The 

PSD Interpretive Memo. While EPA is reconsidering the PSD Interpretive Memo, it did not stay 

the effect of the memorandum. At this time that memorandum reflects EPA’s current position, 

and hence, this final rule does not make GHGs subject to regulation under the Act. We are not 

responding to any comments submitted in this rulemaking on the merits of the Agency’s current 

position because they are outside the scope of this rulemaking. As we noted in the proposal, 

EPA is reconsidering the PSD Interpretive Memo and will be seeking public comment on the 

issues raised in it. That proceeding, not this rulemaking, is the appropriate venue for submitting 

comments on the substantive issue of whether monitoring regulations under the CAA should 

trigger PSD. 

Comment: EPA also received numerous comments about whether the requirements 

imposed by this rule are “applicable requirements” under the title V operating permit program. 

The majority of the comments took the position that the current definitions of “applicable 

requirement” at 40 CFR 70.2 and 71.2 do not include a rule such as this, promulgated under 

section 114(a)(1) and 208 of the CAA. Commenters requested that EPA confirm their 

interpretation of the regulations. One commenter apparently presumed that title V permits would 

have to be revised to include the parametric monitoring requirements of this rule, and requested 

that additional time be allowed for this transition. 

Response: EPA agrees that as currently written, the definition of "applicable 

requirement" in 40 CFR 70.2 and 71.2 does not include a monitoring rule such this final 

reporting rule, which is promulgated under CAA sections 114(a)(1) and 208. 

 Comment: Some commenters noted statements by the Administrator regarding the 

25,000 tpy CO2e threshold in this rule as evidence of how the Agency would target any future 

CAA programs. These commenters questioned EPA’s ability to set PSD applicability thresholds 

higher than the statutory levels of 100 and 250 tpy and urged EPA to prepare and publish for 

public review and comment a supplemental statement of its intent on this issue before it takes 

any further action. 

Response: This comment is beyond the scope of this rulemaking. However, as discussed 

above, EPA is considering options addressing this issue and the public will have the opportunity 

to comment on any proposal. 

1.4 COMMENTS RELATED TO RULEMAKING PROCEDURES

1.4.1 Inadequate notice and comment 

 Comment: Some commenters argued that the comment period for the rule was 

inadequate, especially considering the complexity of the rulemaking, and therefore rendered the 

rule arbitrary and capricious as a legal matter. Specifically, they contended that by denying 

requests for an extension of the comment period, EPA has failed to “allow interested parties to 

comment meaningfully,” as required under the Administrative Procedures Act (APA). 5 U.S.C. § 

553. Commenters discussed how notice and comment requirements are designed to (1) ensure 
23 

that agency regulations are tested via exposure to diverse public comment, (2) ensure fairness to 

affected parties, and (3) give affected parties an opportunity to develop evidence in the record to 

support their objections to the rule and thereby enhance the quality of judicial review. They 

noted that EPA has a duty to give full and fair consideration to such comments (citing ACLU v. 

FCC, 823 F.2d 1554, 1581 (D.C. Cir. 1987) (“Notice and comment rulemaking procedures 

obligate the [agency] to respond to all significant comments, for ‘the opportunity to comment is 

meaningless unless the agency responds to significant points raised by the public’”); Rodway v. 

USDA, 514 F.2d 809, 817 (D.C. Cir. 1975) (agencies have a duty to “respond in a reasoned 

manner to the comments received, to explain how the agency resolved any significant problems 

raised by the comments, and to show how that resolution led the agency to the ultimate rule.”)). 

Commenters compared this rule to a rule in which the court held that EPA had failed to 

provide adequate notice and opportunity to comment when it revised its definition of “electricity 

generating unit” in a rulemaking with only a 60-day comment period, because the revised 

definition was highly technical, had never been used in a prior regulatory context, and after many 

commentators stated that the comment period was inadequate. Michigan v. EPA, 213 F.3d 663 

(D.C. Cir. 2000). Commenters argued that this proposed rule is vastly more complicated than the 

redefinition of a single term (as in Michigan), and thus that the court’s reasoning in Michigan 

applies all the more to the NPRM. 

Response: The official public comment period on the proposed rule was adequate. 

Notably, commenters did not allege that EPA did not meet the minimum CAA statutory 

requirements for public comment and the opportunity for a public hearing. Prior to developing 

the proposal EPA undertook an extensive, if not unprecedented, public outreach effort, talking 

with more than 300 people, representing more than 100 industries and interest groups. Thus, 

before EPA had even proposed the rule it had discussed the concepts and ideas and technical 

matters with dozens of stakeholders. Moreover, while the public comment period closed 60 days 

after the proposal was published in the Federal Register, that date was 90 days after the rule in 

its entirety was available on EPA’s webpage. Thus, in addition to the opportunities provided to 

stakeholders to discuss the issue with EPA before the proposal was signed, the public essentially 

had 90 days in which to review and comment on the proposal. Indeed, EPA received over 

16,800 comments on the proposal. In addition, since the proposal was signed, EPA has talked to 

more than 4000 people, representing over 150 groups. Thus, interested stakeholders have had 

ample opportunity to present their positions to EPA. 

Moreover, while the rule is comprehensive and covers many industrial sectors, most 

industry commenters would need to review only certain portions of the rule. Finally, the 

extensive response to comments documents in the docket demonstrate EPA’s careful 

consideration of the significant comments received on the proposal. Indeed, EPA has made 

several changes to the final package in response to those comments. 

EPA also disagrees that Michigan v. EPA stands, either explicitly or implicitly, for the 

proposition that a 60-day comment period is insufficient as a legal matter for complex rules. 

That case involved the definition of “EGU” (electric generating unit) which was relevant for 

regulatory purposes. As the court noted, throughout the rulemaking process EPA defined EGU 

as it did under the CAA Acid Rain program. However, two months after adopting that definition 

in the final rule, which was issued in October 1998, EPA issued a “Corrections Rule” that, 

among other things, redefined EGU and provided an opportunity for public comment on the new 

issues in the Corrections Rule. In response to comments on the revised definition, EPA claimed 
24 

that a May 1998 Supplemental Notice provided the public with notice of the new definition and 

allowed for 60-days to comment. The court rejected EPA’s claim that the new definition was a 

logical outgrowth of the proposed rule because the definition in the supplemental notice 

concerned a different regulatory purpose. Additionally, the court held that the comment period 

on the Corrections Rule was inadequate for purposes of the redefinition because EPA rejected 

comments on this issue primarily by claiming that the May 1998 Supplemental Notice provided 

sufficient notice to the public of the new definition. 213 F.3d at 691-93. Thus, the court did not 

address whether a comment period of any sufficient length was adequate, but rather whether 

EPA’s proposal (including any supplemental proposal) gave the public adequate notice of the 

approach it ultimately adopted in the final rule. There is nothing in the opinion to support a 

claim a 60-day public comment period is inadequate for any purpose. 

 EPA’s denial of the requests for extension of the comment was entirely reasonable in 

light of the above extensive outreach efforts and opportunity for public comment, and especially 

considering the statutory deadline for issuing the final rule (June 2009) and Congressional 

interest that we begin collecting data in 2010. 

1.4.2 Inadequate explanation and consideration of alternatives

Comment: Some commenters argued that EPA’s proposed rule was illegal because it 

contained inadequate explanation of its decision making process and/or it failed to adequately 

consider alternatives. Specifically, at least one commenter argued that the rule fails to 

demonstrate a rational consideration of the key issues, as well as alternatives to its preferred 

approach, citing the Administrative Procedures Act and Citizens of Overton Park v. Volpe

(1972). They argued that as proposed, the rule does not consider alternative regulatory reporting 

thresholds that could achieve its primary objectives at significantly lower cost and burden to 

covered sources. Commenters continued that without consideration of the Clean Air Act’s wellestablished structure of federal and state permitting roles—the rule creates a new, “hybrid” 

category of sources that are not “major” for Title V purposes, but are effectively deemed major 

GHG emissions sources. 

Response: As is demonstrated in the proposal package (including the FR notice, RIA 

and Technical Support Documents) and the final rule package (including the FR notice, RIA, and 

Response to Comment Documents), EPA considered and solicited comment on a variety of 

options and alternatives for each element of the reporting rule as a whole, and within the 

individual sectors. For example, EPA explained the various thresholds it considered, both in 

metric and levels (e.g. capacity versus emissions, and 10,000 tpy vs, 25,000 tpy). There are 

hundreds, if not thousands, of pages setting forth EPA’s decision making process, including its 

consideration of alternatives. Commenters’ general allegations do not indicate how this robust 

discussion of the decision making process somehow failed to meet statutory or judicial 

requirements. As for the comment that EPA has created a “hybrid” definition of major 

stationary source that is at odds with the statutory definition for various permitting programs, 

this rule does not define major source at all. Rather, it establishes a general threshold above 

which source should report GHG emissions information. 
25 

1.5 OTHER LEGAL COMMENTS

1.5.1 Information Quality Act 

 Comment: One commenter submitted comments alleging that EPA has not complied 

with the Information Quality Act (IQA) in the proposed rule. Specifically, it asserted that EPA 

had failed to “include a review of the data quality” in the preamble to the proposed rule. The 

commenter requested that EPA include a review of data quality in the mandatory GHG reporting 

rule in “IX. Statutory and Executive Order Reviews.”" It noted that “collected GHG emissions 

information must be of high quality to assure public confidence as well as information reliability 

in respect to all uses for which the collected data are intended,” and suggested that “attention to 

assuring information quality” for the data EPA would collect under this rule “is one aspect of the 

proposed rule.” The commenter also expressed concern that some groups will use the data 

submitted under this rule to “castigate and vilify ‘non-performers’” and that nobody “should be 

subjected to such treatment on the basis of poor quality, unreliable data.” Finally, it stated that 

“the quality of GHG emissions data that is disseminated to the public must be assured.” 

Response: EPA has fully complied with the requirements of the Information Quality Act 

(IQA). The IQA is designed to “ensur[e] and maximize[e] the quality, objectivity, utility, and 

integrity of information (including statistical information) disseminated by Federal agencies.” 

Public Law 106-554; 44 U.S.C. 3516, note. Following guidelines issued by the Office of 

Management and Budget, EPA released its own guidelines to carry out the objectives of the IQA 

(http://www.epa.gov/QUALITY/informationguidelines/documents/EPA_InfoQualityGuidelines.pd

f). EPA’s Information Quality Guidelines (EPA IQG) provide a detailed administrative process 

to address any challenges to data quality issues in data disseminated by EPA. These guidelines 

would apply to information collected pursuant to this rule which is made public by EPA. 

 The IQA does not require EPA to include a review of data quality in the preamble to this 

rule. As noted by the commenter, the IQA only requires that the agency “issue guidelines” 

ensuring data quality: EPA issued such guidelines in 2002. These guidelines established a 

thorough administrative mechanism under which the agency may review data quality once it has 

data available to review. To the extent that the comments suggest that the IQA is the only 

mechanism that affords the public an opportunity to examine the quality and reliability of data, 

we disagree. For example, the notice and comment rulemaking procedures for any future 

rulemaking based on the information collected by this rule would provide the public with an 

opportunity to examine the quality and reliability of data underlying that decision. 

 EPA believes the reporting system established by the GHG reporting rule is consistent 

with the EPA IQG. To the extent that the commenter is requesting that EPA review data 

submitted under the final GHG reporting rule, EPA intends to do so using the existing processes 

described in the EPA IQG. As noted in the preamble for the proposed rule, and consistent with 

the IQA and the EPA IQG, the dissemination of the collected data is intended to facilitate 

greater transparency and to maximize quality. The preamble and other response to comment 

documents discuss how EPA plans to verify and quality assure the information submitted under 

this rule generally, and specifically before it is shared with the public. EPA agrees that accurate 

and timely information on GHG emissions is essential for informing many future climate change 

policy decisions. This consideration is one reason supporting EPA's decision regarding the 

appropriate level of monitoring, recordkeeping and reporting in this rule, as well as the data 

systems and EPA verification process. As discussed in this RTC, there are a wide variety of 

possible uses of this information under the CAA, and EPA is committed to collecting, and using, 
26 

high quality data for these efforts. EPA encourages interested parties to raise any concerns 

within the Agency’s existing data quality review framework at an appropriate time. 

 EPA is not interested in data of poor quality, and encourages the entities submitting data 

under the GHG reporting system to provide data of the highest quality possible. In addition, as 

noted in the EPA IQG, though we cannot be responsible for how data is used by others, EPA is 

committed to ensuring the quality of the data and will use the procedures described in the EPA 

IQG to achieve that goal 

1.5.2 Agriculture concerns 

Comment: Some members of the agricultural industry commented that their industry is 

unique and that therefore, rather than being folded into this regulatory reporting program, they 

should be subject to individual 114 information requests to the extent appropriate. They 

generally requested that EPA rethink using the CAA for GHG emissions from agricultural 

activities. They were worried that while the rule may set forth reasonable terms for other sectors 

of the U.S. economy to report emissions, the proposal would have the perverse effect of steering 

pork producers toward activities that, on balance, will actually cause more environmental harm, 

including increased emissions (e.g., the reluctance to improve the performance of a farm’s 

manure management systems to enhance water quality because it would trigger the increased 

reporting burden associated with the current proposal; rejection of EPA’s Ag Star program 

encouragement to install of manure digesters). 

Commenters also recommended that any agricultural programs be referenced to the U.S. 

Department of Agriculture (USDA) due to their experience with farmers regarding agricultural 

practices, as well as their statutory authority under various statutes (e.g., the 2008 Farm Bill). 

 Members of the agricultural industry also argued that nothing in the Clean Air Act or the 

Consolidated Appropriations Act authorizes a rulemaking that limits GHG reporting to 

anthropogenic (or derived from human activities) emissions (e.g., exempting enteric 

fermentation). They appeared to disagree with EPA’s considering emissions from manure 

management systems as anthropogenic. They argued that EPA seems to pick and choose 

"emissions" making some C02e emissions reportable and other C02e emissions not reportable, 

without justification or analysis. 

Response: We considered the comments submitted by the agricultural community, and 

are requiring manure management systems at large livestock operations that exceed the 

reporting threshold to report under the final rule. The rationale for the decision to include 

manure management and exclude other agricultural sources is described in the preamble to the 

rule and response to comments documents on Source Categories Covered (Vol.1) and Subpart JJ 

(Manure Management) (Vol. 46). EPA has coordinated the manure management provisions 

with the USDA and we continue to work with them on issues involving agriculture. 

1.5.3 SEC Filing Concerns 

Comment: At least one commenters noted concern about how the rule could have 

significant unforeseen consequences for publicly-traded corporations subject to filing 

requirements mandated by the SEC in the event the data reported under the NPRM would be 

considered material information for these SEC reports. They referenced a petition for a 

rulemaking requiring SEC-regulated businesses to disclose their carbon footprint that is pending 
27 

with the SEC. See Coalition for Environmentally Responsible Economies – Petition for 

Interpretive Guidance on Climate Risk Disclosure, filed Sept. 18, 2007. They also noted that a 

publicly traded company recently agreed to a settlement with the New York State Attorney 

General that requires the company to disclose GHG emissions data in connection with SEC 

Regulation S-K filings. See Dominion Resources Form 10-K for fiscal year ending December 

31, 2008 (filed Feb. 26, 2009 with the SEC). They expressed concern that these developments 

raise questions as to how data generated under the NPRM should be reported under SEC 

requirements, if at all. They recommended that EPA delay finalization of the NPRM until it has 

coordinated with the SEC and interested stakeholders on public disclosure requirements of GHG 

emissions data generated under the NPRM for publicly-traded companies. 

Response: Concerns about SEC reporting responsibilities are beyond the scope of this 

rulemakings. EPA, stakeholders and Congress have an interest in having this rule become 

effective for reporting year 2010, and delaying the rule further per this recommendation would 

preclude finalizing the rule in time for that reporting year. 

1.5.4 Preemption of State Reporting Programs 

Comments: Numerous commenters expressed an opinion about whether this federal 

GHG reporting rule should preempt State and local reporting programs. As a general matter, 

industry commenters supported preemption, while state and NGO commenters opposed it. 

Commenters in favor of preemption noted the existence of numerous State and local 

GHG reporting programs. They raised concerns about duplicative and conflicting reporting 

requirements. In particular, they wanted to avoid different verification, monitoring, and 

emissions estimation procedures, and that would be inefficient and time consuming for the 

regulated entities and is likely to result in inconsistent data. Some commenters alleged that EPA 

has experienced such difficulties with the National Emission Inventory database, which is used 

to model national air quality trends, and argued that EPA should avoid similar difficulties 

regarding GHG reporting. Commenters generally noted that multiple reporting programs will 

make integration of databases and information sharing more difficult. Some commenters argued 

that federal preemption would be consistent with the President’s May 20, 2009 Memorandum for 

the Heads of Executive Departments and Agencies on Preemption because this rule is so 

comprehensive it could be seen as “occupying the field” in terms of collection of GHG emission 

data. They argued that because the information proposed to be collected would be available to 

state or local regulators, state or local regulators could not have a need for any additional data 

sufficient to justify additive, non-uniform GHG emission reporting requirements in some states. 

These commenters essentially believed there should be one consistent, harmonized, 

nationally applied emission reporting system to increase the integrity of the data and avoid 

duplication of effort at the source level. Some commenters recommended a limited, conditional 

federal preemption policy and procedure (e.g., preempt where industries, thresholds and reported 

information are similar; allow states to adopt different thresholds but require adherence to same 

measurement protocols). Other commenters were in favor of complete and permanent 

preemption of State and local programs. Still others suggested that if EPA did not preempt State 

and local programs, it should accept information submitted to those programs under the federal 

rule, or vice versa. Some suggested immediate preemption, while others recommended 

sunsetting of the State and local programs. 
28 

 Commenters opposed to preemption urged EPA to add a ‘savings’ clause to the final rule, 

disavowing any attempt to preempt regional, state, and local programs. They requested a plain, 

explicit savings clause in the rule itself to prevent unnecessary litigation and avoid substantial 

disruption in the vital state programs. They argued that the reporting arena is ideal for state 

experimentation which the federal government can then learn from, and EPA should make 

certain that its federal rule does no harm to state programs. 

Response: As stated in the preamble to the final rule, EPA is not intending that this 

federal GHG reporting rule preempt state programs. There are several existing State and 

Regional GHG reporting and/or reduction programs, summarized in Section II of the proposal 

preamble (74 FR 16457, April 10, 2009). These are important programs that not only led the 

way in reporting of GHG emissions before the Federal government acted but also assist in 

quantifying the GHG reductions achieved by various reduction policies. Many of these 

programs collect different or additional data as compared to this rule. For example, State 

programs may establish lower thresholds for reporting or request information on areas not 

addressed in the EPA reporting rule (e.g., electricity use or emission related to other indirect 

sources). States collecting additional information have determined that these data are necessary 

to implement their specific climate policies and programs. EPA agrees that State and regional 

programs are crucial to achieving emissions reductions, and this rule does not preempt any 

other programs. 

 EPA’s GHG reporting rule is a specific single action that was specifically developed in 

response to the Appropriations Act, and therefore is targeted to accomplish the purpose of the 

language of the Appropriations Act and serve EPA’s purposes under the CAA. As State 

experience has demonstrated, we recognize that in order to address the breadth of climate 

change issues there will likely be a need to collect additional data from sources subject to this 

rule as well as other sources. The timing and nature of these additional needs will be dependent 

on the types of programs and actions the Agency has underway or may develop and implement in 

response to future policy developments and/or new requests from Congress. Addressing climate 

change will require a suite of policies and programs and this reporting rule is just one effort to 

collect information to inform those policies. 

 EPA is committed to working with State and regional programs to coordinate 

implementation of reporting programs, reduce burden on reporters, provide timely access to 

verified emissions data, establish mechanisms to efficiently share data, and harmonize data 

systems to the extent possible. 

 We note that EPA’s position that this rule does not preempt State programs is consistent 

with both the President’s May 20, 2009 Memorandum on Preemption and the preemption 

provisions of Executive Order 13132, Federalism (August 4, 1999), which the Memorandum 

cites with approval. The memorandum stated President Obama's policy that “preemption of 

State law by executive departments and agencies should be undertaken only with full 

consideration of the legitimate prerogatives of the States and with a sufficient legal basis for 

preemption. Executive departments and agencies should be mindful that in our Federal system, 

the citizens of the several States have distinctive circumstances and values, and that in many 

instances it is appropriate for them to apply to themselves rules and principles that reflect these 

circumstances and values.” Moreover, the preemption provisions of EO 13132 on Federalism 

state that agencies should construe federal statutes as preempting state law or issue regulations 

authorizing preemption only where the statute contains an express preemption provision, there is 

clear evidence that Congress intended to preempt state law, or the exercise of state authority 
29 

conflicts with the exercise of federal authority. EO 13132, Section 4 (a)-(b). Finally, it appears 

that EPA lacks the legal authority to preempt state law in this case; such authority exists only 

when Congress has evidenced an intent to occupy a given field, or state law either actually 

conflicts with federal law or stands as an obstacle to the accomplishment of its full purposes and 

objectives. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984). None of those 

requirements is met in this case. 

 For the reasons stated above, preemption is not appropriate in these circumstances.