March 28, 2023
Brielle A. Brown
MGKF Litigation Blog
EPA’s Clean Air Act (“CAA”) rulemakings directed at power plants are often the target of regulatory challenges in federal court. EPA’s latest rulemaking regulating Hazardous Air Pollutant (“HAP”) emissions from coal- and oil-fired electric utility steam generating units (“EGUs”) is unlikely to be an exception. 88 Fed. Reg. 13956 (Mar. 6, 2023). In the now final rule, EPA has revoked an earlier action taken in 2020, in which the agency declined to regulate HAP emissions from EGUs after comparing the costs of compliance relative to the benefits of regulation, relying at the time on the Supreme Court’s decision in Michigan v. EPA, 576 U.S. 743 (2015). Id. at 13957; see also 85 Fed. Reg. 31286. Now, just three years later under a new administration, the agency has backtracked, finding that it is appropriate and necessary to regulate HAP emissions from EGUs based on new data regarding the costs and benefits of regulating HAP emissions. EPA claims that its latest decision is actually more in line with the statutory factors identified in Michigan for determining whether it is “appropriate and necessary” to regulate HAP emissions from EGUs under the CAA.
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