May 12, 2025
Office of Management and Budget
Washington, DC
Response to Notice of Request for Information, April 11, 2025
By Regulations.gov Portal
In response to OMB’s solicitation of ideas for deregulation, specifically rules to be rescinded and detailed reasons for their rescission, Government Accountability & Oversight submits the following:
I. Rules for rescission:
New Source Performance Standards for Greenhouse Gas Emissions From New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions From Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule, Environmental Protection Agency, 40 CFR Part 60 [EPA-HQ-OAR-2023-0072; FRL-8536-01-OAR], RIN 2060-AV09, May 9, 2024
National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units Review of the Residual Risk and Technology Review, Environmental Protection Agency, 40 CFR Part 63 [EPA-HQ-OAR-2018-0794; FRL-6716.3-02-OAR], RIN 2060-AV53, May 7, 2024
Supplemental Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, Environmental Protection Agency, 40 CFR Part 423 [EPA-HQ-OW-2009-0819; FRL-8794-02-OW], RIN 2040-AG23, May 9, 2024
Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments, Environmental Protection Agency, 40 CFR Parts 9 and 257 [EPA-HQ-OLEM-2020-0107; FRL-7814-04-OLEM], RIN 2050-AH14, May 8, 2024
Importantly, these were proposed collectively by the Environmental Protection Agency as a “Suite of Standards to Reduce Pollution from Fossil Fuel-Fired Power Plants”[1]
Reconsideration of the National Ambient Air Quality Standards for Particulate Matter, Environmental Protection Agency, 40 CFR Parts 50, 53, and 58 [EPA-HQ-OAR-2015-0072; FRL-8635-02-OAR], RIN 2060-AV52, 89 Fed. Reg. 16, 202 (Mar. 6, 2024)
Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, Environmental Protection Agency, 40 CFR Chapter I [EPA–HQ–OAR–2009–0171; FRL–9091–8] RIN 2060–ZA14 Docket ID No. EPA-HQ-OAR-2009-0171 December 15, 2009
Violation of the Major Questions Doctrine (applied to the “suite of standards individually and as proposed, i.e., collectively), and Rule Against Pretext (the agency should confess to error of the previous administration in promulgating rules on a pretextual basis).
III. Applicable precedents:
Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019), Michigan v. EPA, 576 U.S. 743 (2015), West Virginia v. EPA, 597 U.S. 697 (2022), Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
IV. Discussion:
Summary
The Environmental Protection Agency (EPA) has no authority to determine how Americans get their electricity. Also, regulators are not permitted to lie about their reason for imposing some final agency action, or to keep the administrative record incomplete or inaccurate to protect the agency from litigation relating to the lawfulness of a rule. The rules cited for rescission, above, reflect EPA rules unlawfully transgressing on all three counts.
What the previous administration called its 2024 “suite of standards”[2] was expressly aimed to force the premature retirement of power generation facilities as a means of reducing greenhouse gas emissions.[3] As former Administrator Michael Regan said when announcing his intention to publish these rules:
“The industry gets to take a look at this suite of rules all at once and say, ‘Is it worth doubling down on investments in this current facility or operation, or should we look at the cost and say no, it’s time to pivot and invest in a clean energy future?”
Taking former Administrator Regan at his word that the entire “suite of rules” was issued to force generation shifting for reasons of climate policy, all of these rules individually and collectively run afoul of West Virginia v. EPA. Unfortunately, the courts were not presented with the evidence necessary to confront this because the prior administration hid the ball. The administrative record does not reveal what Administrator Regan confessed was the agency’s true motivation for enacting these rules, and the courts were therefore not permitted a factually accurate record upon which they could review the regulations. Similarly, litigants were not permitted to raise arguments because the administrative record was incomplete or inaccurate, and those who would have commented on the relevant regulations were deprived of the ability to submit comments addressing the agency’s true motivations.
The record also unlawfully excludes information we have learned EPA was provided by the Department of Energy refuting a claimed basis for one of these rules, its greenhouse gas (GHG) standard.
Finally, records and privilege logs obtained in Freedom of Information Act or FOIA litigation with EPA suggest, and at minimum provide detailed places to begin an examination whether, GHG “Endangerment Finding”[4] was impermissibly the product of unalterably closed minds. Further, the logs and emails raise questions about what EPA told the Office of Inspector General about the origins and timeline of the Endangerment Finding, when that Office’s inquiry concluded the Endangerment Finding failed certain procedural requirements.[5] That is, there is a sound basis for believing there was no realistic chance the process would achieve any other outcome, in violation of the Administrative Procedure Act.
Detailed Overview
The previous administration, via EPA Administrator Michael Regan, openly advertised its purpose of “generation shifting” (forcing a switch from “fossil fuel” generation to “renewables”) behind its use not just of the Clean Air Act but also a solid waste statute (Resource Conservation and Recovery Act (RCRA)), and the Clean Water Act (CWA), “marry[ing] a range of EPA authorities” to coerce the premature retirement of politically disfavored generation.[6] Not only is that facially impermissible given the latter two provide no authority to force reduction of airborne greenhouse gas emissions[7] but, within weeks of Mr. Regan’s confession, the United States Supreme Court in West Virginia v. EPA, 142 S. Ct. 2587 (2022), declared there is no evidence that Congress has granted the EPA the profound authority to “determin[e] how Americans get their energy.” That is, “generation shifting” was not a “best available system of emission reductions,” nor a permissible objective for using the Agency’s regulatory authority.
EPA under Mr. Regan nonetheless followed through on the promised rules and approach, what the Agency called its “suite of standards.”[8] The published rules cited for rescission, supra, did not admit to the previously admitted objectives—which of course would have doomed the rules under, inter alia, West Virginia. In fact, to the extent the rules spoke to “generation shifting” they denied that it would be a result of the rules.[9]
Regardless, such gamesmanship should only seal the rules’ fate, as Mr. Regan’s admission nonetheless is fatal under Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) (remanding the case back to the agency where the evidence tells a story that does not match the secretary’s explanation for his decision).
For these reasons, all of these rules violate the major questions doctrine and rule against pretext. The flagship among this “suite of rules,” the GHG standard has another fatal deficiency. Justice Kagan’s dissent in West Virginia suggested the majority would accept either fuel switching (to ‘clean hydrogen’) or carbon capture and sequestration (CCS) as the best available system of emission reductions. The Biden rule replacing that Obama EPA regulation limiting carbon dioxide emissions from power plants (“Clean Power Plan”) vacated in West Virginia (and, technically, the CPP’s successor rule published under the first Trump Administration), required either fuel switching to hydrogen or CCS; EPA then dropped the hydrogen option (i.e., required CCS as a BSER). Records GAO has obtained show that EPA not only should have known, but did in fact know—via comments transmitted to it by the Department of Energy, which the Agency then buried—that the Agency’s assertions that carbon capture and storage (CCS) had been “adequately demonstrated” were demonstrably untrue.[10]
These facts show that EPA’s “suite of rules,” and its particulate matter standard similarly designed to force premature retirement of coal-fired generation and achieve GHG reductions, violate the Major Questions doctrine as affirmed in West Virginia, both individually given their impermissible objective, and collectively (as they were proposed). Further, they violate the rule against pretext as affirmed in Dep’t of Commerce v. New York. The pretext led to incomplete and inaccurate rulemaking records. For these reasons, the Trump Administration should rescind these rules a) pursuant to Executive Order 14219, February 19, 2025, b) pursuant to the Presidential Memorandum “Directing the Repeal of Unlawful Regulations,” April 9, 2025, and c) confess error to all appropriate courts, seeking vacatur.
Challengers to EPA regulations have raised major questions violations, or the admission of impermissible pretext. But only the Agency itself can confess error and address the fatally flawed administrative record built by bureaucrats on a foundation of pretext.
Confessing error is a practice by which government attorneys inform a court that the state has misstepped such that annulment of an agency’s judgment or proceeding is warranted. The court chooses whether to grant the request to vacate the action. A change in administration philosophy or interpretation is insufficient. A confession of error of law, fact or procedure that is supported by documents, illustrating the admitted wrongdoing, would almost certainly be accepted by the courts.[11] Based on records made public through FOIA, there is already a strong indication that the Agency possesses contemporary written discussions of the publicly admitted plan to use these rules collectively to force generation shifting.[12]
The evidence in the sources referenced herein overwhelmingly suggests that the Agency would succeed.
Failing to take this path carries risks. Rescinding a regulation requires going through the same lengthy process necessary to impose a rule. That also is then subject to judicial review, and the courts frequently send aspiring reformers back to the drawing board. This tendency by the courts to find procedural fault in regulations rescinded only by way of the Federal Register promises years of litigation and uncertainty in for your efforts to reconsider or rescind EPA regulations.[13] Even when reversals eventually succeed, delay through litigation can often prove fatal; the previous Trump administration’s experience with re-permitting the Keystone XL pipeline comes to mind. The Agency should nonetheless pursue this course.
It is true that the Supreme Court has increasingly rejected initiatives for which there was no clear congressional grant of authority. This trend indicates a strong likelihood of reversal by the courts of many of the outgoing administration’s major rules, possibly by mid-2026. Meanwhile, the costs mount. For example, electricity reliability organizations warn of the increasing threat of blackouts due to early retirement of perfectly functional power plants thanks to this very regulatory assault.
This is why the Administration needs to move aggressively to identify and confess error to courts hearing challenges to the Biden EPA’s most problematic regulatory expansions. Fortunately, much of the necessary work has been done for this reform effort to build from.
A story re-posted by EPA Administrator Lee Zeldin reminds us that the Agency is the custodian of the entire record of unlawfulness, to the extent it was not created “off book” (e.g., Signal, WhatsApp, Slack channels, text messaging never preserved).[14] Here, we point the Agency, and OMB, to the record as we know of it at this time. Some of the evidence provides a prima facie case to rescind, protinus, pursuant to the aforementioned Presidential Memorandum. Other of the below, e.g., a heavily redacted slide show presented by EPA to the White House Climate Office immediately after the 2021 transition, and FOIA’d records and privilege logs pertaining to the “Endangerment Finding,” provide sufficient reason to examine what lies beneath for this purpose.
References:
Brief of Government Accountability & Oversight as Amicus Curiae in Support of Petitioners, Kentucky et al. v EPA et al., D.C. Cir. 24-1050 Document #2048332 April 5, 2024 (identifying records); https://govoversight.org/wp-content/uploads/2024/04/24-1050_Documents-GAO-Motion-and-Brief.pdf; see also discussion of same, https://govoversight.org/release-transparency-in-government-group-files-amicus-brief-exposing-epa-flouting-doctrine-against-pretextual-rulemaking/.
Christopher Horner, “Trump Will Want to ‘Confess Error’,” Wall Street Journal, Nov. 17, 2024, https://www.wsj.com/opinion/trump-will-want-to-confess-error-deregulation-agencies-06b5cb2b.
Christopher Horner, “EPA’s Deceptive Climate Regulations Won’t Stand in Court,” Wall Street Journal, May 1, 2024, https://www.wsj.com/opinion/bidens-climate-deception-wont-stand-in-court-suite-west-virginia-pretext-regan-0fae5111.
Christopher Horner, “The EPA Defies the Supreme Court,” Wall Street Journal, Aug. 17, 2023, https://www.wsj.com/opinion/epa-environmental-protection-supreme-court-regulation-unconstitutional-climate-change-administrative-state-biden-42f31ce3.
“Law Whispering is Dead. Long Live Law Whispering!,” February 28, 2023, https://govoversight.org/law-whispering-is-dead-long-live-law-whispering/, and Power Point slide show linked therein, at https://govoversight.org/wp-content/uploads/2023/02/October-2022-Release-ED_006414_00000550_Formal_RWR.pdf.
“Archive: Emails, Privilege Logs Suggest EPA’s Endangerment Finding Was Unlawfully Predetermined, Review Needed,” March 11, 2025, https://govoversight.org/archive-emails-privilege-logs-suggest-epas-endangerment-finding-was-unlawfully-predetermined/
[1] https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-suite-standards-reduce-pollution-fossil-fuel
[2] https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-suite-standards-reduce-pollution-fossil-fuel. The Agency’s Biden-era overreaches include the tightened “MATS” standard and its replacement rule for the Clean Power Plan (following the Obama EPA’s regulation limiting carbon dioxide emissions from power plants being vacated by the Supreme Court in West Virginia v. EPA, 142 S. Ct. 2587 (2022)). This campaign of using a cascade of rules to force “expedited retirement” of power plants also includes EPA’s tightened PM NAAQS, See Commonwealth of Kentucky, et al v. EPA, et al. (D.C. Cir. Case #24-1050, Document #2058290, June 6, 2024; EPA-89FR16202, litigation over EPA’s “Reconsideration of the National Ambient Air Quality Standards for Particulate Matter,” 89 Fed. Reg. 16202 (Mar. 6, 2024)). They also include and coal ash and water effluent standards under non-Clean Air Act regimes. This is despite the Supreme Court’s admonitions in Michigan v. EPA, 576 U.S. 743 (2015) against revising public-health regulation for climate-policy reasons, and particularly when seeking to force generation-shifting which, per West Virginia, is an improper objective for EPA.
[3] “The industry gets to take a look at this suite of rules all at once and say, ‘Is it worth doubling down on investments in this current facility or operation, or should we look at the cost and say no, it’s time to pivot and invest in a clean energy future?’” Regan told reporters after his keynote address.” Jean Chemnick, Mike Lee, “What the EPA’s New Plans for Regulating Power Plants Mean for Carbon: Administrator Michael Regan argues regulation of mercury, ozone, water and coal ash will also curb greenhouse gases,” Scientific American, March 11, 2022, https://www.scientificamerican.com/article/what-the-epas-new-plans-for-regulating-power-plants-mean-for-carbon/.
[4] Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act, December 7, 2009, Docket ID No. EPA-HQ-OAR-2009-0171, https://www.epa.gov/sites/default/files/2021-05/documents/federal_register-epa-hq-oar-2009-0171-dec.15-09.pdf.
[5] U.S. EPA Office of Inspector General, Procedural Review of EPA’s Greenhouse Gases Endangerment Finding Data Quality Processes, Sept. 26, 2011, https://www.epa.gov/sites/default/files/2015-10/documents/20110926-11-p-0702.pdf.
[6] “Administrator Michael Regan, Remarks to CERAWeek About EPA’s Approach to Deliver Certainty for Power Sector and Ensure Significant Public Health Benefits, As Prepared for Delivery,” https://web.archive.org/web/20220503220839/https://www.epa.gov/speeches/administrator-michael-regan-remarks-ceraweek-about-epas-approach-deliver-certainty-power. See also Jean Chemnick, Mike Lee, “What the EPA’s New Plans for Regulating Power Plants Mean for Carbon: Administrator Michael Regan argues regulation of mercury, ozone, water and coal ash will also curb greenhouse gases,” Scientific American, March 11, 2022, https://www.scientificamerican.com/article/what-the-epas-new-plans-for-regulating-power-plants-mean-for-carbon/ (last visited April 4, 2024).
[7] Imposing coal ash and water effluent standards defies the Supreme Court’s admonitions in Michigan v. EPA, 576 U.S. 743 (2015) against revising public-health regulation for climate-policy reasons.
[8] https://www.epa.gov/newsreleases/biden-harris-administration-finalizes-suite-standards-reduce-pollution-fossil-fuel. This campaign of using a cascade of rules to force “expedited retirement” of power plants also includes EPA’s tightened PM NAAQS. See the Commonwealth of Kentucky, et al v. EPA, et al. (D.C. Cir. Case #24-1050, Document #2058290, June 6, 2024; EPA-89FR16202, litigation over EPA’s “Reconsideration of the National Ambient Air Quality Standards for Particulate Matter,” 89 Fed. Reg. 16202 (Mar. 6, 2024)).
[9] As such, EPA does apparently grasp that the opinion in West Virginia prohibits the practice which admirers call “law whispering”—or “teaching old laws new tricks”—particularly on major questions like contriving changes in our energy mix. Gone are Agency paeans to inventively coercing plants to retire. With a newfound modesty, the administrative record published for these non-GHG rules disputed claims of causing “a significant number of retirements” (https://www.epa.gov/system/files/documents/2024-04/6716-3_2060-av53_mats_rtr_20240417_admin.pdf) and attributed any generation shifting to “Inflation Reduction Act” subsidies (https://www.epa.gov/system/files/documents/2024-04/prepublication_ow_supplemental-steam-electric-elg_final_frn_20240422_admin.pdf).
[10] See, “Bookmark This: Buried Biden-admin Bombshell 2.0,” April 22, 2025, https://govoversight.org/bookmark-this-buried-biden-admin-bombshell-2-0/.
[11] For example, the Obama administration famously asked a court to remand and vacate a late-hour Bush administration regulation of mining activities near streams. In NPCA v Salazar, 660 F. Supp. 2d 3 (D.D.C. 2009), the D.C. District Court declined, stating that while the new Secretary confessed error he did so “point[ing] to no new evidence.” See Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.D.C. 1993) (holding that where there was significant new evidence, a remand was appropriate).
[12] We note that heavily redacted records suggesting this approach, called “law whispering” by its practitioners and which began almost immediately upon the previous administration assuming office, identify places to begin the Agency’s review. See “Law Whispering is Dead. Long Live Law Whispering!,” February 28, 2023, https://govoversight.org/law-whispering-is-dead-long-live-law-whispering/, and Power Point slide show linked therein, at https://govoversight.org/wp-content/uploads/2023/02/October-2022-Release-ED_006414_00000550_Formal_RWR.pdf. Also, amicus curiae have identified records in amicus briefs, e.g., in Kentucky et al. v. EPA(FN3, supra).
[13] We also note the industry dedicated to ensuring such delays, through litigation. See, e.g., Daniel Lyons, “The Administrative Law of Deregulation: The Long Road for the Trump Administration to Undo Obama-Era Regulations,” Boston Bar Association, August 9, 2017, https://bostonbar.org/journal/the-administrative-law-of-deregulation-the-long-road-for-the-trump-administration-to-undo-obama-era-regulations/; Telis Demos, Jinjoo Lee, David Wainer, “Not All Trump 2.0 Regulatory Initiatives Will Survive—Here’s Why,” Wall Street Journal, Nov. 24, 2024, https://www.wsj.com/politics/policy/not-all-trump-2-0-regulatory-initiatives-will-surviveheres-why-aab33ab3. See also Department of Homeland Security v. Regents of Univ. of Cal., 591 U.S. 1 (2020) (DACA).
[14] See, “FOIA’d docs expose, as we’ve been saying, the Biden EPA “gold bars” scheme was riddled with self-dealing and conflicts of interest, unqualified recipients, and reduced oversight. An honest person might even call this sourced documentation “evidence”.” X.com post by Administrator Lee M. Zeldin, May 11, 2025, https://x.com/epaleezeldin/status/1921726467534131221. See also, Christopher Horner, “Transparency for Thee, but Not for the SEC,” Oct. 10, 2022, https://www.wsj.com/articles/transparency-securities-exchange-commission-sec-ferc-foia-fra-records-keeping-transparency-biden-white-house-11665440298