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Chapter 11

Statutory and Executive Order Reviews

Contents

11.1 Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: 

Improving Regulation and Regulatory Review .............................................................................. 2

11.2 Paperwork Reduction Act.................................................................................................... 3

11.3 Regulatory Flexibility Act ................................................................................................... 3

11.4 Unfunded Mandates Reform Act......................................................................................... 3

11.5 Executive Order 13132: Federalism .................................................................................... 3

11.6 Executive Order 13175: Consultation and Coordination With Indian Tribal Governments 5

11.7 Executive Order 13045: Protection of Children From Environmental Health Risks and 

Safety Risks .................................................................................................................................... 5

11.8 Executive Order 13211: Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution, or Use............................................................................................... 5

11.9 National Technology Transfer and Advancement Act ........................................................ 6

11.10 Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations..................................................................................... 6
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11.1 EXECUTIVE ORDER 12866: REGULATORY PLANNING AND 

REVIEW, AND EXECUTIVE ORDER 13563: IMPROVING 

REGULATION AND REGULATORY REVIEW

Comment 11.1-1: Commenters 0192 and 0222 believe that this legislation is unnecessary under 

Executive Order 13563. Commenter 0192 says that that the legislation is arbitrary, capricious, 

and not in accordance with the law because the rule "does not promote coordination, 

simplification, and harmonizing of rulemakings to avoid redundant, unnecessary, inconsistent, or 

overlapping regulation." Commenter 0222 states that the regulation's costs do not outweigh its 

benefits.

Response 11.1-1: The EPA disagrees with the commenter. This final action establishes the first 

uniform national limits on the amount of carbon pollution that modified and reconstructed EGUs 

will be allowed to emit and, thus, there is no overlap with other regulations. In addition, the EPA 

took deliberate efforts to promote coordination, simplification and harmonization of rulemakings 

and avoid redundancies and inconsistencies. Where possible, rule requirements are in accordance 

with 40 CFR part 75 requirements for monitoring, recordkeeping and reporting. Because the 

EPA has historically been notified of few units taking action under the NSPS modification or 

reconstruction provisions, the EPA does not anticipate significant costs associated with this 

standard.

Comment 11.1-2: Commenter 0186 believes that the EPA needs to perform a comprehensive 

cost-benefit analysis before it claims that the proposed rule will result in higher benefits 

than costs. The commenter also states that this ruling cannot be viewed "in a vacuum" and must 

be considered alongside the NSPS and the EPA Power Plan rulings as a whole.

Response 11.1-2: The EPA points out that it does not claim that the rule will result in higher 

benefits than costs. In fact, the EPA expects that the standards for modified and reconstructed 

EGUs will not result in any significant emission reductions, costs, or quantified benefits in the 

period of analysis. For the reasons summarized below and explained more fully in the RIA for 

the final rule, the EPA disagrees with the commenter that a comprehensive cost-benefit analysis 

must be performed.

With regard to reconstructions, the EPA is only aware of one EGU that has notified the EPA that 

it has reconstructed under the reconstruction provision of section 111(b). As a result, the EPA

anticipates that few EGUs will undertake reconstruction in the period of analysis. For this reason, 

the standards will not result in any significant emission reductions, costs, or quantified benefits 

in the period of analysis. Likewise, the agency does not anticipate any impacts on the price of 

electricity or energy supply. The rule is not expected to raise any resource adequacy concerns 

since reserve margins will not be impacted and the rule does not impose any additional 

requirements on existing facilities not triggering the reconstruction provision. There are no 

macroeconomic or employment impacts expected as a result of the standards. Due to the 

extremely limited data available on reconstructions, it is not possible to conduct a representative 

illustrative analysis of what costs and benefits might result from this rule in the unlikely case that 

a unit were to reconstruct.
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With regard to modifications, the EPA anticipates that few EGUs will take actions that would be 

considered modifications and subject to the final standards of performance during the period of 

analysis. For this reason, the standards will result in minimal emission reductions, costs, or 

quantified benefits in the period of analysis. Likewise, the agency does not anticipate any 

impacts on the price of electricity or energy supplies. The rule is not expected to raise any 

resource adequacy concerns, since reserve margins will not be impacted and the rule does not 

impose any additional requirements on existing facilities not triggering the modification 

provision. There are no macroeconomic or employment impacts expected as a result of the

standards. Due to the limited data available on past modifications and the diversity of existing 

units that could potentially modify, it is not possible to conduct a representative illustrative 

analysis of what costs and benefits might result from this rule in the unlikely case that a unit 

were to take an action that would be classified as a modification.

With regard to new construction, the EPA expects that that the standards will result in negligible 

CO2 emission changes, benefits or costs for new units constructed by 2020. U.S. DOE, EPA and 

industry projections indicate that, due to the economics of coal and natural gas, among other 

factors, new power plants that are built over the next decade or more would be expected to meet 

the standards even in the absence of the rule. Specifically, no new, unplanned conventional coalfired capacity is projected to be built in the analysis period, and, absent this rule, any new NGCC 

that may be built is expected to have an annual emission rate in compliance with the standard.

Overall, the EPA anticipates that the NSPS for newly constructed, modified, and reconstructed 

EGUs will result in minimal costs or quantified benefits in the period of analysis. A separate 

cost-benefit analysis was appropriately conducted for the CAA section 111(d) carbon pollution 

emission guidelines for existing EGUs.

11.2 PAPERWORK REDUCTION ACT

No comments received.

11.3 REGULATORY FLEXIBILITY ACT

No comments received.

11.4 UNFUNDED MANDATES REFORM ACT

No comments received.

11.5 EXECUTIVE ORDER 13132: FEDERALISM

Comment 11.5-1: Commenter 0186 believes that the EPA's position on dual applicability under 

111(b) and 111(d) is an "illegitimate rewriting of the Clean Air Act definitions." The commenter 

claims that this viewpoint is also a display of federalism, and "by holding a modified source to 

both federal standards under Section 111(b) and a state plan under Section 111(d), the EPA 

illegitimately co-opts a traditional area of state authority." According to the commenter, "the 

definitions for "new"/"modified" and "existing" sources that Congress wrote into the CAA 

defined not only different applicable statutory provisions but also marked a division of authority 
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between state and federal governments. Authority over existing sources remained with the states 

and their police power, but new and modified sources were subject to federal regulation by EPA. 

See United States v. City of Painesville, 431 F. Supp. 496, 501 n.9 (N.D. Ohio 1977), aff'd 644 

F.2d 1186 (6th Cir. 1981), cert. denied 454 U.S. 894 (1981)."

The commenter goes on to say that "The division of labor is reinforced by CAA Section 111(c), 

which permits a state to enforce federal new source performance standards (NSPS) only after the 

state submits a plan and the Administrator 'delegate[s] to such State any authority he has under 

this chapter to implement and enforce such standards.' The requirement of an explicit delegation 

indicates that states are generally to stay out of regulating new sources. Correspondingly, 

Congress explicitly left to the states the matter of regulating existing sources by directing the 

EPA Administrator to formulate a process through which states can do so, rather than directing 

the Administrator to regulate them directly. EPA can regulate existing sources directly only 

when the states fail to submit an acceptable state implementation plan. The symmetry between 

Sections 111(b)/111(c) and Section 111(d) describes the division of state and federal power."

The commenter fears that even if the legislation doesn't take away the state authority over 

existing sources, it will at least give the federal government the power to override the state action 

plan with stricter legislation. They state: "Although EPA does not immediately diminish state 

authority in so doing, it does expand its purview into an area that Congress deliberately left to the 

states, thereby disrupting the careful balance Congress struck. And where influence extends, 

preemption soon follows: should EPA and state regulations conflict, there is little doubt EPA 

would seek to wield its Supremacy Clause cudgel. See Nat'l-Southwire Aluminum Co. v. EPA, 

838 F.2d 835, 841 (6th Cir. 1988) (holding facility to federal NSPS instead of state 111(d) plan 

after state relaxed its regulations). By subjecting EGUs to both federal (Section 111(b)) and state 

(Section 111(d)) regulation, EPA gains a ratcheted power to hold EGUs to whichever regulation 

is stricter, which in turn gives EPA a directive control over state environmental policy: as EPA 

moves its standard, states must follow (and become even stricter) or lose control over their 

policy. This is the antithesis of the symmetrical division of power Congress wrote into Sections 

111(b)/111(c) and Section 111(d). EPA's counter-textual reading of Section 111 disrupts the 

balance of authority Congress wrote into the Clean Air Act." 

Response 11.5-1: The concern raised by the commenter with regard to the EPA’s position in the 

proposed CAA section 111(d) carbon pollution emission guidelines for existing EGUs regarding 

applicability under CAA sections 111(b) and (d) is addressed in the CAA section 111(d) action 

that the EPA is finalizing simultaneously with the CAA section 111(b) action. Specifically, in the 

proposed CAA section 111(d) rulemaking, the EPA proposed the interpretation that if an existing 

source is subject to a section 111(d) state plan, and then undertakes a modification or 

reconstruction, the source remains subject to the state plan, while also becoming subject to the 

modification or reconstruction requirements (79 FR 34830, 34903–4, June 18, 2014). As 

discussed in section VIII.D.2 of the preamble to the final carbon pollution emission guidelines 

for existing EGUs, the EPA is not finalizing a position on the issue, and is re-proposing and 

taking comment on the issue through the federal plan rulemaking being proposed concurrently 

with the 111(b) and (d) final actions. The EPA will propose and finalize its position on the issue 

through the federal plan rulemaking, which will be well in advance of the plan performance 
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period beginning in 2022, at which point state plan obligations on existing sources are 

effectuated.

Comment 11.5-2: Commenter 0186 feels that the proposed ruling "violates principles of 

federalism because it hides political choices and prevents accountability. It forces states to adopt 

policies that will raise energy costs and prove deeply unpopular, while cloaking those policies in 

the garb of state "choice" - even though in fact the polices are compelled by the federal 

government. The Supreme Court has condemned such arrangements, because "where the Federal 

Government directs the States to regulate, it may be state officials who will bear the brunt of 

public disapproval, while the federal officials who devised the regulatory program may remain 

insulated from the electoral ramifications of their decision." New York v. United States, 505 U.S. 

144, 169 (1992); see also Printz v. United States, 521 U.S. 898, 923 (1997) (citing need for 

"accountability" as a reason to prohibit federal government from forcing state officials to 

implement federal policy). The EPA Power Plan thumbs its nose at democratic principles by 

confusing the chain of decision-making between federal and state regulators to avoid political 

transparency and accountability."

Response 11.5-2: This comment appears to regard the CAA section 111(d) carbon pollution 

emission guidelines for existing EGUs in that the commenter refers to states adopting policies 

compelled by the federal government and to decision-making between federal and state 

regulators. Thus, a response is not provided here because the comment is outside the scope of the 

CAA section 111(b) standards of performance for GHG emissions from modified and 

reconstructed EGUs. Nevertheless, the EPA points out that CAA section 111(b) requirements 

that the EPA establishes apply directly to new, modified, or reconstructed EGUs and do not 

require states to submit implementation plans to regulate those EGUs as states will do with 

regard to existing EGUs under CAA section 111(d).

11.6 EXECUTIVE ORDER 13175: CONSULTATION AND 

COORDINATION WITH INDIAN TRIBAL GOVERNMENTS

No comments received.

11.7 EXECUTIVE ORDER 13045: PROTECTION OF CHILDREN FROM 

ENVIRONMENTAL HEALTH RISKS AND SAFETY RISKS

No comments received.

11.8 EXECUTIVE ORDER 13211: ACTIONS CONCERNING 

REGULATIONS THAT SIGNIFICANTLY AFFECT ENERGY 

SUPPLY, DISTRIBUTION, OR USE

Comment 11.8-1: Commenter 0186 believes that the EPA's approach to estimating rate 

increases is flawed. The commenter states that "Because EPA commingles rates for coaldependent states with those for coal-independent states, the overall mean rate figure is not an 

accurate portrayal of what will occur in either type of state." The commenter believes that the 

estimated rate increases are underestimated, and could rise by as much as 30%. According to the 
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commenter, "A 30% percent increase matters to low-income ratepayers. Such a spike could be 

the difference between having heat and not having heat to warm a home during winter." The 

commenter feels that "EPA has no basis for assuming that the conjectural "benefits" of the EPA 

Power Plan will outweigh its certain costs on low-income ratepayers" because the EPA has not 

considered the social costs of unaffordable electricity on low-income households. 

Response 11.8-1: This comment appears to regard the CAA section 111(d) carbon pollution 

emission guidelines for existing EGUs in that the commenter refers to electricity rate increases in 

states as a result of the EPA’s Clean Power Plan. Thus, a response is not provided here because 

the comment is outside the scope of the CAA section 111(b) standards of performance for GHG 

emissions from modified and reconstructed EGUs. Nevertheless, the EPA does not anticipate any 

impacts on the price of electricity or energy supplies as a result of the standards of performance 

for modified and reconstructed EGUs.

11.9 NATIONAL TECHNOLOGY TRANSFER AND ADVANCEMENT 

ACT

No comments received.

11.10 EXECUTIVE ORDER 12898: FEDERAL ACTIONS TO ADDRESS 

ENVIRONMENTAL JUSTICE IN MINORITY POPULATIONS AND 

LOW-INCOME POPULATIONS

No comments received.