Summary of the brief supporting rescission of one of the Biden EPA’s pretextual “suite of rules,” the MATS revision, below. You can read the brief here.
A coalition of states and environmental activist groups have sued in this Court to challenge a final regulation of the Environmental Protection Agency (“USEPA” or “the Agency”), “National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units: Final Repeal,” published at 91 Fed. Reg. 9088 (Feb. 24, 2026) (“the Rule”). The Rule at issue rescinds an unlawful 2024 rule which established more stringent standards of certain covered emissions from certain power plants. EPA rescinds on the grounds that the previous rule revising the hazardous air pollutant (“HAP”) standards came as part of a Technology Review in response to a “climate crisis” Executive Order,[1] at massive cost.[2] Yet the 2012 standards in place at the time already offered (and still offer) requisite protections. Petitioners seek a determination that the 2026 Rule (the rescission) is unlawful, arbitrary and capricious, and must be vacated.
Information in this brief established that the underlying rule which EPA has now rescinded was otherwise unlawful for reasons additional to those cited in EPA’s rescission. This independently affirms that rescission of that improper rule was proper and necessary. The Administrator of Respondent EPA at the time the 2024 standard was adopted, Michael Regan (“Regan”), announced prior to imposing that revision that a “suite of rules”[3] were forthcoming to reduce airborne GHG emissions under various authorities regulating solid waste, water, and non-GHG air emissions (infra). This was to advance a “climate” policy agenda by making certain forms of energy production cost prohibitive, forcing changes in America’s energy mix through premature retirement of certain types of generation so as to reduce greenhouse gas emissions (“GHGs”).[4] The Agency sought to compel “expedited retirement” of facilities because its position was that forcing facilities to close prematurely is “the best tool for reducing greenhouse gas emissions.”[5] Then-Administrator Regan declared this was intended to make the regulated community come around to the administration’s view of “the future. And that future is clean energy.”[6] Meanwhile, after the Supreme Court ruled against generation shifting as an acceptable goal in West Virginia v. EPA, 597 U.S. 697 (2022), the EPA modified its claimed objective, dismissing in its administrative record commenters’ concerns that the promised result of widespread premature retirements would occur.[7]
Critically, EPA first publicly expressed (but then formally denied in the record) that the MATS rule was an attempt to force “generation shifting,” making the underlying rule being rescinded a violation of the relevant Clean Air Act provision; it similarly violates the Major Questions Doctrine, both when standing alone and when properly considered as a part of the “suite of rules” with which the underlying rule was announced as a collective effort to do indirectly what the Supreme Court mere weeks later, in West Virginia,[8] affirmed the Agency cannot through a single rule do directly. That is to implement an administration policy of generation shifting that Congress never empowered the Agency to implement.
Second, this history makes the EPA’s administrative record woefully incomplete. By denying its own previously admitted, unlawful rationale of forcing premature retirements, EPA left the underlying rule in violation of the APA as arbitrary and capricious. This is additional grounds for the Agency’s rescission now at issue here.
Finally, the described pretext admitted to by the previous administration should doom the underlying rule being rescinded as a violation of the rule against pretext and thereby arbitrary and capricious, further supporting rescission.
This Court should uphold the Rule rescinding the 2024 revisions, or at minimum remand the Rule to a Special Master for discovery into the Agency’s state of mind and pretextual reasoning at the time it imposed the 2024 underlying rule, and supplement the record accordingly.
[1] 89 Fed. Reg. 38,508 (May 7, 2024), acknowledging the impetus was Exec. Order No. 13,990, 86 Fed. Reg. 7,037 (Jan. 25, 2021), which EO focused on forcing changes in the country’s electricity generation mix. EO 13990 has since been revoked by Exec. Order No. 14,148, 90 Fed. Reg. 8,237 (Jan. 28, 2025).
[2] “The D.C. Circuit has held that the CAA section 112(d)(6) requirement to periodically review and revise CAA section 112 emission standards “as necessary” is not limited to the consideration of “developments in practices, processes and control technologies.” Rather, “the operative standard is ‘revise as necessary,’ with the parenthetical pointing to a non-exhaustive list of considerations.” The Supreme Court also emphasized in Michigan v. EPA that unless the statute provides otherwise, broad terms such as “necessary” direct the relevant agency to consider all relevant factors, including by assessing the cost of an action relative to the anticipated benefits. That decision is particularly relevant here because the Court was interpreting a related provision of CAA section 112 that instructs the Administrator to determine whether it is “appropriate and necessary” to regulate HAP emissions from EGUs. Thus, under relevant case law, when the EPA is deciding whether it is “necessary” to revise standards pursuant to CAA section 112(d)(6), the Agency can consider the costs of any developments in practices, processes, and control technologies.” 91 Fed. Reg. 9088, 9092 (Feb. 24, 2026) (citations omitted).
[3] Jean Chemnick & Mike Lee, What the EPA’s New Plans for Regulating Power Plants Mean for Carbon, Sci. Am. (Mar. 11, 2022), https://www.scientificamerican.com/article/what-the-epas-new-plans-for-regulating-power-plants-mean-for-carbon/.
[4] “Reducing Emissions and Accelerating Clean Energy: President Biden and Vice President Harris have mobilized a whole-of-government effort in every sector of the economy – taking executive actions that will reduce greenhouse gas emissions, accelerate clean energy production and deployment, and create good-paying jobs that strengthen the economy.” President Biden’s Historic Climate Agenda, White House (archived Dec. 27, 2024), https://web.archive.org/web/20241227073552/https://www.whitehouse.gov/climate/.
[5] Chemnick & Lee, supra note 3.
[6] EPA Administrator Michael Regan Discusses Supreme Court Ruling on Climate Change, PBS NewsHour (June 30, 2022), https://www.pbs.org/newshour/show/epa-administrator-michael-regan-discusses-supreme-court-ruling-on-climate-change.
[7] National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units Review of the Residual Risk and Technology Review, 89 Fed. Reg. 38,508, 38,524–27 (May 7, 2024).
[8] 597 U.S. 697 (2022). In West Virginia, the Court concluded that Agency regulation to force generation shifting, in that case the Clean Power Plan invoking Section 111(d) (providing authority to set emissions levels for pollutants not covered by the NAAQS or Hazardous Air Pollutant programs), poses a major question and that USEPA pointed to no clear congressional grant of authority to pursue that goal.