1899 L Street, N.W.

, 12
Washington, D.C. 20036

Comments of the Competitive Enterprise Institute on
Clean Air Act §111(b) Carbon Pollution Standards

Docket No. EPA-HQ-OAR-2013-0495

May 9, 2014

Recognizing that the development of next-generation clean-coal technology is
essential to ensuring America’s energy future, the Energy Policy Act of 2005
provided financial assistance to companies who voluntarily took on the burden of
developing such technology. To avoid the possibility that its financial assistance
could lead to counterproductive regulations that would retard the development of
this clean-coal technology, Congress forbade the Environmental Protection Agency
(“EPA”) to set control technology standards under the Clean Air Act based on
facilities that received assistance under the Energy Policy Act. But EPA ignored
Congress’s restrictions on its authority when it proposed new standards for coal-
fired power plants that leveraged Congressionally subsidized technology into
stringent emission standards that threaten to effectively bar the construction of
new coal-fired plants in the United States. Rather than perpetuate this unlawful
and erroneous course of action, EPA should take a step back and use its
information-gathering powers under the Clean Air Act to determine definitively the

status of Energy Policy Act assistance for the facilities under consideration, rather
than rushing to promulgate an unlawful and arbitrary emission standard.

The Energy Policy Act of 2005
promotes the development of cutting-edge
technologies to produce cleaner energy from traditional fossil fuels, particularly
from coal. The Act thereby “accelerates market penetration for clean coal
technologies.” H.R. Rep. No. 109-215, at 169 (2005). As President George W. Bush
observed while signing it into law, the Act “authorizes new funding for research into
cutting-edge technologies that will help us do more with less energy. . . . [T]his bill
will allow America to make cleaner and more productive use of our domestic energy
resources, including coal . . . . The challenge is to develop ways to take advantage of
our coal resources while keeping our air clean.” 1 Legislative History of P.L. 109-58
Energy Policy Act of 2005, Tab 2, at 1264-65 (Weekly Compilation of Presidential
Documents, Vol. 41, No. 32) (Presidential Remarks on Signing the Energy Policy
Act of 2005 in Albuquerque, New Mexico, Aug. 8, 2005).
Specifically, Congress provided two significant financial incentives for “clean
coal” technology. First, in the Act’s Clean Coal Power Initiative, Congress provided
grants for coal gasification and other clean-coal technology projects.
Second, as
part of the Act’s Energy Policy Tax Incentives program, Congress created a
“qualifying advanced coal project” investment tax credit that applies to new or
retrofitted power plants that employ advanced coal-based technology. Because
these direct and tax subsidies allowed facilities to go well beyond what is currently
technologically and financially viable, Congress did not want to give with one hand

Pub. L. No. 109-58, 119 Stat. 594 (Aug. 8, 2005).
These grants are of considerable size, amounting in multiple instances to hundreds of millions of dollars for an
individual project. See, e.g., http://energy.gov/fe/clean-coal-power-initiative-round-iii (describing grants ranging
from $100 million to $350 million) (last visited May 1, 2014).

and take with the other. It therefore barred EPA from predicating more stringent
emission and technology standards under the Clean Air Act on facilities that were
subsidized by the Energy Policy Act.
EPA first proposed carbon dioxide new source performance standards for fossil-
fuel power plants in April 2012 (the “Original Proposal”). EPA did not consider the
Energy Policy Act in this Proposal. EPA did, however, receive comments explaining
that Congress had restricted EPA’s ability to rely on technologies subsidized under
the Energy Policy Act when setting standards under the Clean Air Act. EPA thus
had eighteen months’ notice of this problem, but inexplicably ignored it when
revising and re-issuing its proposal. Due to other serious technical and legal
problems related to EPA’s proposal to treat coal-fired power plants as being
identical to natural gas-fired power plants for standard-setting purposes, EPA
threw out the proposal and started from scratch the next year.
In September 2013, EPA released a new version of its carbon dioxide
performance standards for fossil-fuel power plants. The agency proposed a
performance standard for fossil fuel-fired electric utility steam-generating units
based on the emission performance that EPA estimated would be achieved through
the application of integrated gasification combined cycle technology, coupled with
the partial capture of carbon dioxide emissions, which EPA then estimated would be
used for enhanced oil recovery purposes.
EPA’s new proposal (the “Revised Proposal”) ignored the comments that the
agency had previously received regarding the Energy Policy Act’s restrictions on the

use of subsidized projects in Clean Air Act standard-setting proceedings. The
Proposal also failed to identify, among the facilities it relied on in determining that
its proposed standard had been demonstrated in the field and was not unduly
costly, those facilities that received financial assistance because they were deemed
by the Secretary of Energy to represent cutting-edge, undemonstrated technology or
that received tax credits under the Energy Policy Act.
This error is significant
because EPA’s proposal relies heavily on facilities that received one or both types of
assistance—for example, the Kemper, Texas Clean Energy, and Hydrogen Energy
California projects—as the backbone of its proposal.

But Congress noticed EPA’s mistake. House Energy and Commerce Committee
Chair Fred Upton promptly explained the Energy Policy Act’s restrictions to
Administrator McCarthy, noting that EPA had ignored those restrictions, and
requesting that EPA withdraw the Revised Proposal to “ensure that the agency does
not propose standards beyond its legal authority” and “that stakeholders and the
public will not have to incur additional costs to respond to a proposal that
contravenes applicable law.”

EPA did generally refer to “DOE grants” received by the Kemper, Texas Clean Energy, and Hydrogen Energy
California projects in both the September 20, 2013 draft version and the Revised Proposal, see 79 Fed. Reg. at
1,478. But in direct contravention of the Energy Policy Act, EPA suggested that this factor made the projects a
more appropriate basis for standard-setting because of the possibility that future projects could also receive
government assistance. See id. at 1,478-79.
See, e.g., 79 Fed. Reg. at 1,434; see also Technical Support Document Appendix (identifying these and other
facilities considered in the Revised Proposal as having received assistance under the Energy Policy Act).
Rep. Upton’s letter is available at
(last visited May 1, 2014).

The rulemaking docket shows that EPA was aware of Congress’s letter within
Nonetheless, EPA published the Revised Proposal without material change,
see 79 Fed. Reg. 1,430, then waited another month to issue a Notice of Data
Availability and accompanying Technical Support Document acknowledging for the
first time the Energy Policy Act’s implications for the agency’s rulemaking
authority. In that Document, EPA provided an incomplete list of the projects
considered in the Revised Proposal that received financial assistance or tax credits
under the Energy Policy Act, suggested how it would attempt to obtain additional
information regarding which facilities considered in the Revised Proposal received
such help, and assumed that a facility which does not provide this information has
not received any assistance or tax credits under the Act.

See Email correspondence between Nathan Frey, OMB, and Robert Wayland, U.S. EPA, re: NSPS, Nov. 19,
2014. EPA-HQ-OAR-2013-0495-0054.

I. EPA’s Proposed Interpretation of the Energy Policy Act
Contradicts Congress’s Unambiguously Expressed Intent
In the Energy Policy Act, Congress restricted significantly EPA’s ability to rely
on information from facilities that received financial assistance under the Act in
setting Clean Air Act performance standards. Congress intended this limitation on
EPA’s authority to ensure that the development of cutting-edge clean-coal
technology is not thwarted by EPA regulation. But EPA’s proposed interpretation
of the Energy Policy Act provisions turns that statute on its head by doing just that:
setting national standards based nearly entirely on facilities that received
assistance under the Energy Policy Act. Furthermore, EPA’s interpretations are
not entitled to deference.
Congress’s motive in limiting EPA authority through the Energy Policy Act is
plain on the face of the statute. The Energy Policy Act provides direct financial
assistance and tax credits for projects that advance clean-coal technology well
beyond what is currently technically and financially feasible. But because, while
clean-coal technology is important for the nation’s energy future, such nascent,
next-generation technology is not an appropriate basis on which to develop
generally applicable standards, Congress prevented EPA seizing on that
development to promulgate new source performance standards applicable to all new
facilities, including those that will not receive Energy Policy Act help. Moreover, by
erecting a barrier between assistance under the Energy Policy Act and new source
performance standard rulemaking under the Clean Air Act, Congress reassured
stakeholders that they could accept such assistance and develop critical technology

without the creation of counterproductive new regulations that would directly
impact the facilities Congress had just helped pay for.

Congress restricted EPA’s ability to rely on data from facilities that receive such
help when setting standards in two separate parts of the Energy Policy Act.
Specifically, in the Clean Coal Power Initiative portion of the Act, Congress
restricted EPA’s authority to leverage the technical or financial assistance provided
under that Act when the agency sets generally applicable environmental standards
under the Clean Air Act:
No technology, or level of emission reduction, solely by reason of the
use of the technology, or the achievement of the emission reduction, by
1 or more facilities receiving assistance under this Act, shall be
considered to be—
(1) adequately demonstrated for purposes of section 7411 of this title;
(2) achievable for purposes of section 7479 of this title; or
(3) achievable in practice for purposes of section 7501 of this title.
Energy Policy Act § 402(i), 42 U.S.C. § 15962(i). This provision ensures that the
Administrator does not erroneously make a finding for purposes of the Clean Air
Act that a particular technology “has been adequately demonstrated” when “taking
into account the cost of achieving such reduction” based solely on this
Congressionally subsidized technology, 42 U.S.C. § 7411(a)(1) (emphasis added)
(defining “standard of performance”).
Congress’s intent to establish a meaningful restriction on what data EPA could
consider under Clean Air Act Section 111 is confirmed by examining the entirety of
Energy Policy Act Section 402(i). The restriction in Section 402(i) applies not only

The House Energy and Commerce Committee’s report on the Act noted that “uncertainty over future
environmental requirements” is among the obstacles facing the development of new coal-fired generation in the
United States. H.R. Rep. No. 109-215, at 171 (2005).

to new source performance standards rulemakings under Section 111, but also to
best available control technology determinations under the prevention of significant
deterioration program, Clean Air Act § 169, 42 U.S.C. § 7479, and lowest achievable
emission rate determinations under the nonattainment new source review program,
42 U.S.C. § 7501. These standards use applicable new source performance
standards as a “floor,” and are designed to go beyond that floor and ensure
deployment of more stringent and technologically sophisticated controls. See 42
U.S.C. §§ 7479(3), 7501(3). If EPA is restricted from using the data at issue in
making even those other determinations, it follows that EPA must not use the data
in setting new source performance standards, which are intended to be less
stringent and less “technology-forcing” than best available control technologies and
lowest achievable emission rates.

In this regard, the plain language of Section 402(i) demonstrates that Congress
intended to limit EPA’s consideration of “facilities receiving assistance” to a
corroborative role. If the data from facilities that did not receive assistance is
insufficient to demonstrate the availability and effectiveness of a technology, with
the availability and effectiveness of that technology being demonstrated by
reference to data from facilities that did receive such assistance, then EPA may not
set a new source performance standard at the level of emissions commensurate with
application of the technology. Only once a technology is determined to be
adequately demonstrated on the basis of data from facilities that did not receive

This same point applies to Energy Policy Act § 1307(b), 26 U.S.C. § 48A(g), which likewise imposes its
limitation on new source performance standard, best available control technology, and lowest achievable
emission rate determinations.

assistance may EPA look to facilities that did receive assistance to corroborate its
determination. Otherwise, EPA would violate Congress’s clear textual command
and thwart Congress’s purpose in enacting it: data from assisted facilities would be
permitted to distort EPA’s new source performance standard rulemaking, the
precise threat Congress wished to prevent.

Congress also sought to incentivize the development of cutting-edge clean-coal
technology by offering tax credits to power plants employing advanced coal-based
technology. Congress’s bar on the use of this technology in Clean Air Act standard-
setting is even more absolute than the bar in Section 402(i): “No use of technology
. . . by or at one or more facilities with respect to which a credit is allowed under
this section, shall be considered to indicate that the technology is . . . adequately
demonstrated.” Energy Policy Act § 1307(b), 26 U.S.C. § 48A(g). If a tax credit is
allowed with respect to one or more facilities, use of a technology by or at that
facility or facilities shall not be considered in a new source performance standard
rulemaking. EPA simply may not consider data from those facilities, whether
initially or to confirm an independently grounded determination.

The reason that Congress imposed an absolute restriction on EPA’s
consideration in the new source performance standard-setting process of data from

The Revised Proposal shows signs of just such distortion. See 79 Fed. Reg. at 1,479 (“In some instances, the
costs of CCS can be defrayed by grants or other benefits provided by the DOE . . . .”); see also 77 Fed. Reg. at
22,399 (Original Proposal) (“The prospect of declining CCS costs, in conjunction with the possibility of continued
availability of additional funding mechanisms (e.g. demonstration funding such as Department of Energy (DOE)
grants [and] tax credits[)] . . . indicates that CCS may well be sufficiently accessible in the near term . . . .”).
Because it did not know about, or chose to ignore, the Energy Policy Act’s restrictions, EPA in its new source
performance standard proposal did exactly what Congress sought to prevent: it considered Department of
Energy grants and tax credits as evidence that carbon capture and storage is financially achievable.
For this reason, it is all the more crucial that EPA obtain complete and accurate information regarding which
facilities received tax credits under the Energy Policy Act, as discussed below, to ensure that those facilities are
not considered in the new source performance standard-setting process in any manner.

facilities receiving tax credits, in contrast with its permitting EPA to corroborate a
determination that a technology is adequately demonstrated by reference to data
from facilities receiving (only) financial assistance,
is due to differences in the
eligibility criteria and selection process under the respective programs.
Under the Clean Coal Power Initiative,
“project[s] [that] advance” efficiency,
environmental, and economic goals are eligible for financial assistance. Energy
Policy Act, § 402(a). Financial assistance is thus available to a broader universe of
projects than those eligible for the Act’s tax credits. The tax credits are available
only to “qualifying advanced coal projects,” which are defined more narrowly to
include only new or retrofitted, large-scale, electricity-generating coal-fired plants
located in the United States, see § 1307(b). In other words, the facilities that are
eligible for tax credits are essentially the same facilities that would be subject to an
eventual new source performance standard for coal-fired power plants. Congress
therefore took care to forbid EPA from considering facilities receiving tax credits
when the agency sets new source performance standards, while allowing a limited,
corroborative role for the broader range of “projects” eligible for financial assistance.
EPA’s proposed interpretations of these provisions of the Energy Policy Act
directly contradict Congress’s intent. First, seizing on Section 402(i)’s use of the
word “solely,” the agency proposes to interpret the Act to mean that the agency may
set new source performance standards relying on projects that received assistance
under the Energy Policy Act “if there is additional evidence supporting such a

A facility that received both direct financial assistance and a tax credit would be subject to the absolute
prohibition of Section 1307(b).
Title IV, Subtitle A of the Energy Policy Act.

Technical Support Document at 6. Under this reading, EPA
could determine that a technology is adequately demonstrated by considering data
from 19 facilities which received assistance under the Energy Policy Act, so long as
it also considers data from 1 facility which did not. This would eviscerate
Congress’s intent: EPA could thereby find a technology to be adequately
demonstrated almost entirely on the basis of facilities that received grants, so long
as it mentions at least one other facility among those considered in the Revised
Proposal—some of which date back 40 years and operate on a much smaller scale
than those facilities which are known to have been funded under the Energy Policy
Act, see Technical Support Document Appendix at 32. But if these older, smaller
facilities could support a technology as adequately demonstrated, Congress would
not have needed to incentivize the development of new technologies under the
Energy Policy Act. Using information from facilities assisted under that Act when
setting new source performance standards in EPA’s preferred manner—as the
primary informational ingredient, leavened by a pinch of consideration of decades-
old demonstration projects—would render Section 402(i)’s prohibition nugatory.
Second, EPA seeks to water down the Energy Policy Act by interpreting its
prohibition as “relat[ing] only to the technology or emissions reduction for which the
assistance was given.” Technical Support Document at 6. But this restriction
violates the plain text of Section 402(i), which applies to information regarding a

It is not clear what “additional evidence” EPA proposes to consider, although the agency later mentions “a
wide range of information” including literature reviews, pre-Energy Policy Act facilities, and foreign facilities.
What is undisputed is that many of the facilities considered in the Revised Proposal—including all but one of
what EPA identifies as the “key projects” it considered that employ pre-combustion carbon capture—received
assistance under the Act. See Technical Support Document Appendix. This directly contradicts the Act’s

“technology, or level of emission reduction” from a facility, regardless of whether the
assistance was targeted at developing that specific technology. Congress’s broad
restriction here is the only way to effect its intent because money is fungible. A
facility that receives a grant to develop technology A can invest more funds to
further the development of technologies B and C. A grant with respect to one
technology thus pushes the development of all three technologies beyond what is
otherwise commercially viable. This renders data from the entire facility
inappropriate for use in setting new source performance standards.

Third, EPA proposes to interpret Sections 402(i) and 1307(b) identically,
allowing the agency to disregard Section 1307(b)’s absolute bar in favor of the
approach it uses for Section 402(i). Technical Support Document at 13. But EPA’s
justification of its interpretation of Section 1307(b) as “parallel[ing] the meaning of
the related provision[]” in Section 402(i) is contrary to the provisions’ different texts
and cannot be squared with Section 1307(b)’s absolute bar on using technology at
facilities that received a tax credit in its proposal. Contrary to EPA’s reading, these
provisions’ different wording reflects their different intent.
It is well settled that
where Congress “‘uses certain language in one part of the statute and different
language in another . . . different meanings were intended.’” Sosa v. Alvarez-
Machain, 542 U.S. 692, 711 n.9 (2004) (quoting 2A N. Singer, Statutes and

This same point applies to EPA’s attempt to limit the reach of Section 1307(b)’s restriction, Technical Support
Document at 13-14.
EPA further proposes to interpret this provision to mean that the agency can consider facilities that receive
tax credits, so long as it considers them before the taxable property is “placed in service,” see Technical Support
Document at 14-15. Again, this interpretation contradicts both Section 1307(b)’s plain language (which makes
no reference to time, but flatly prohibits EPA from considering “facilities with respect to which a [tax] credit is
allowed under this section”) and Congress’s unambiguous intent. At every turn, EPA seeks to tear down the
barriers Congress placed on its consideration of facilities assisted under the Energy Policy Act.

Statutory Construction § 46:06, p. 194 (6th rev. ed. 2000)); see also Recording Indus.
Ass’n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1235 (D.C. Cir.
2003) (“[W]here different terms are used in a single piece of legislation . . . Congress
intended the terms have different meanings.”) (alteration in original) (internal
quotation marks omitted); Transbrasil S.A. Linhas Aereas v. Dep’t of Transp., 791
F.2d 202, 205 (D.C. Cir. 1986) (same). Put simply, Section 402(i) and
Section 1307(b) use different language and have different meanings, and EPA
cannot ignore the statutory language to arrive at its desired conclusion.
Fourth, EPA’s attempt to justify its interpretation by reference to an
unreasonable interpretation of the Energy Policy Act’s purpose is meritless. EPA
claims that “the apparent purpose of [26 U.S.C.] § 48A—as well as the other types of
assistance in [the Energy Policy Act]—[] is to encourage the development of
technology so that it can be used on a widespread commercial basis . . . . [Clean Air
Act] § 111 is an important vehicle for promoting widespread commercial use of
technology.” Technical Support Document at 13. But if EPA’s theory were correct,
Congress would not have imposed any informational barriers between Energy
Policy Act assistance and Clean Air Act determinations, because such barriers
inevitably impede Clean Air Act Section 111’s promotion of technology use. EPA
cannot wish these barriers away, yet its proposed interpretations would effectively
read them out of existence.

Fifth, EPA’s proposed interpretation of Section 402(i) conflicts with the Energy
Policy Act’s criterion for determining which projects are eligible to receive
assistance under the Clean Coal Power Initiative:
To be eligible to receive assistance under this subtitle [i.e., the
Initiative], a project shall advance efficiency, environmental
performance, and cost competitiveness well beyond the level of
technologies that are in commercial service or have been demonstrated
on a scale that the Secretary determines is sufficient to demonstrate
that commercial service is viable as of [the Energy Policy Act’s effective
Energy Policy Act, § 402(a).
In other words, the Secretary of Energy must determine what already existing
technologies have been sufficiently demonstrated as commercially viable; only
projects which will advance technology “well beyond” those existing technologies are
eligible to receive assistance under Section 402. This is precisely why Congress
imposed the limit in Section 402(i), 42 U.S.C. § 15962(i), on EPA’s considering
facilities that receive this assistance when the agency sets new source performance
standards. The whole predicate of a grant of assistance under Section 402(a) is that
the project goes “well beyond” current technology. Congress erected an
informational barrier under Subsection (i) to prevent a feedback loop whereby
projects getting grants under Subsection (a) would be considered by EPA to
“adequately demonstrate” a technology for new source performance standard-
setting purposes. Likewise, under Section 402(a) the Secretary determines what
facilities are eligible for financial assistance; Section 402(i) prevents information

from those facilities from distorting EPA’s view of what is financially achievable
when the agency sets new source performance standards.
The Secretary of Energy makes eligibility determinations under Section 402(a)
through an independent exercise of discretion, not in consultation with EPA.
Compare § 402(a) (“a scale that the Secretary determines is sufficient”) with, e.g.,
§ 402(b)(3) (directing the Secretary to consult with the EPA Administrator prior to
setting technical milestones for projects receiving funding). EPA’s proposed
interpretation of Section 402(i) would undermine the Secretary’s discretionary
determinations: EPA, in determining that a technology is financially achievable,
would be able to rely heavily on facilities which the Secretary has already
determined go well beyond commercial viability.
Finally, EPA’s interpretations of provisions of the Energy Policy Act are not
entitled to deference. EPA asserts that its interpretations of Energy Policy Act
provisions “would be accorded deference” because the provisions in question
“involve[] the meaning of the Clean Air Act,” Technical Support Document at 6 &
n.8; see also id. at 13 n.21, but this is incorrect. Under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984), an agency may
be entitled to deference regarding its “construction of a statutory scheme it is
entrusted to administer,” and for this reason it is well established that EPA is
entitled to deference in its interpretation of the Clean Air Act. E.g., Sierra Club v.
EPA, 294 F.3d 155, 160 (D.C. Cir. 2002). But an agency is not entitled to deference
in its interpretation of a statute which is it not “entrusted to administer.” E.g., City

of Olmsted Falls v. FAA, 292 F.3d 261, 270 (D.C. Cir. 2002) (“[W]hen we are faced
with an agency’s interpretation of a statute not committed to its administration, we
give no deference.”) (citing Ass’n of Civilian Technicians v. Fed. Labor Relations
Auth., 269 F.3d 1112, 1115-16 (D.C. Cir. 2001)); Dep’t of Treasury v. Fed. Labor
Relations Auth., 837 F.2d 1163, 1167 (D.C. Cir. 1988) (“[W]hen an agency interprets
a statute other than that which it has been entrusted to administer, its
interpretation is not entitled to deference.”).
EPA is not the agency “entrusted to administer” the Energy Policy Act. Instead,
that Act generally, and Section 402 in particular, are administered by the Secretary
of Energy. See Energy Policy Act § 2(4) (“‘Secretary’ means the Secretary of Energy”
except as provided otherwise); § 401(a) (authorizing appropriations “to the
Secretary to carry out the activities authorized by this subtitle,” i.e., Title IV
(“Coal”), Subtitle A (“Clean Coal Power Initiative”)). Similarly, the tax credit
regime at issue here is administered not by EPA, but rather by the Secretary of
Energy and the Secretary of the Treasury acting jointly. See Technical Support
Document at 7 (citing 26 U.S.C. § 48A(d)(1)).
Neither the financial-grant
provisions of Title IV of the Energy Policy Act nor the tax-credit provisions in Title
XIII delegate any rulemaking authority to EPA, a sine qua non for the invocation of
See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (holding

Note that when certain environmental organizations (unsuccessfully) sought to enjoin the tax-credit program,
they properly sued the Treasury and Energy Departments—not EPA. Appalachian Voices v. Bodman, 587 F.
Supp. 2d 79, 83 (D.D.C. 2008) (“The defendants, the Department of Treasury (‘DOT’) and the Department of
Energy (‘DOE’), are responsible for administering programs established by the [Energy Policy Act] that provide
tax credits to companies that use clean coal technology.”) (emphasis added).
In a pending challenge to the Revised Proposal brought by the State of Nebraska, EPA has expressly conceded
that “[n]o provision of the [Energy] Policy Act provides” it with rulemaking authority. Reply Memorandum in
Support of EPA’s Motion to Dismiss at 3 n.1, Nebraska v. EPA, No. 14-3006 (D. Neb. Apr. 21, 2014).

that an agency is entitled to Chevron deference only when “Congress delegated
authority to the agency generally to make rules carrying the force of law, and [] the
agency interpretation claiming deference was promulgated in the exercise of that
authority”); City of Olmsted Falls, 292 F.3d at 270 (“It is because of this delegation,
express or implied, that we give deference to an agency’s statutory interpretation.”).
Simply put, EPA in its construction of the Energy Policy Act is not offering an
interpretation of the words of a statute it has been entrusted to administer.
Accordingly, that construction is not entitled to deference.
* * *
“The EPA’s self-serving misinterpretation of Congress’s mandate is too clever
by half and an obvious effort to protect its regulatory process at the expense of
Congress’s clear intention. Put simply, that dog won’t hunt.” Avenal Power Ctr.,
LLC v. U.S. EPA, 787 F. Supp. 2d 1, 4 n.2 (D.D.C. 2011). Congress unambiguously
restricted EPA’s consideration of data from facilities receiving financial assistance
under the Energy Policy Act to only a corroborative role in the new source
performance standard rulemaking process, and entirely prohibited EPA from
considering data from facilities receiving tax credits. EPA deliberately ignored
these restrictions when it drafted the Revised Proposal, even in the face of a clear
warning from Congress in the form of Rep. Upton’s letter. Its proposed
interpretation of the Energy Policy Act provisions is an obvious attempt to protect
its regulatory process by rendering those provisions nugatory. That dog won’t hunt.

II. EPA’s Attempt To Address the Energy Policy Act’s
Restrictions Is Deficient and Prejudices the Public’s Ability
To Comment
In order to abide by the restrictions imposed on its rulemaking process by the
Energy Policy Act, EPA must determine whether a facility under consideration has
received financial assistance or tax credits under that Act. In order to meaningfully
comment whether the Revised Proposal was proper, stakeholders also must be
presented with this information. But EPA’s proposed method of obtaining this
information is inadequate, preventing the agency from ensuring that it abides by
the Energy Policy Act and prejudicing the public’s ability to comment.
In the Technical Support Document, EPA proposes to presume that a facility did
not receive financial assistance or tax credits under the Energy Policy Act unless
the agency receives information to the contrary. Technical Support Document at 7,
15-16. In other words, EPA will undertake no investigation whatsoever to
determine if a facility has received financial assistance or tax credits under the Act,
and if a facility does not affirmatively declare that it received such assistance and
EPA does not receive information from any other source—which seems likely, given
that EPA proposes no method of collecting the information other than its non-
compulsory request for information directed to the facilities—EPA will treat that
facility’s silence as affirming that it did not receive assistance under the Act.
This method of attempting to obtain the information is destined to fail.
Significantly, EPA’s request for the information does not carry any legal
compulsion. Facilities which have already received financial assistance or tax
credits might reasonably decide not to respond to EPA’s non-compulsory request,

because they will enjoy a significant advantage if their performance is used to set a
generally applicable standard which their unsubsidized competitors must also meet.
Second, the facilities’ owners and operators may not be monitoring the rulemaking
docket and the Federal Register, and may be entirely unaware of EPA’s informal
“request”—especially those facilities which may not even be subject to the new
source performance standard if and when it is finalized.

Additionally, EPA requests that this information be provided “during the
comment period,” Technical Support Document at 7. This suggests that the agency
will not, prior to finalization, provide the public with further opportunity to
comment on the Revised Proposal in light of whatever information EPA receives.
EPA thus proposes to set a rule knowing full well that critical information will not
be available to the public. Such a process would deny “affected parties an
opportunity to develop evidence in the record to support their objections.” Small
Ref. Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983).
Indeed, in this case it appears that EPA’s process is specifically designed to deny
affected parties that opportunity. This will compel the public to move for
reconsideration on the issue of Energy Policy Act compliance; meanwhile, the rule
will go into effect. This odious method of rulemaking “undermin[es] the aims of
meaningful participation and informed decisionmaking.” Horsehead Resource
Development Co., Inc. v. Browner, 16 F.3d 1246, 1268 (D.C. Cir. 1994).

E.g., a “pilot-scale CCS demonstration at [American Electric Power’s] Mountaineer Plant in New Haven, WV,”
79 Fed. Reg. at 1,435; see Technical Support Document Appendix (listing this project as having received
funding, but not a tax credit, under the Energy Policy Act).
Failure to fully collect the necessary information and enter it into the administrative record will also prevent
a court reviewing future challenges to the rulemaking from determining whether EPA observed the limitations

The arbitrary nature of EPA’s proposed method of obtaining the relevant
information is made even more obvious by considering the statutory information-
gathering tool which EPA conspicuously declines to invoke here. Under Section 114
of the Clean Air Act, 42 U.S.C. § 7414(a)(1)(G), EPA is expressly empowered to
require owners and operators of emission sources “who the Administrator believes
may have information necessary for the purposes set forth in this subsection”
(which includes setting new source performance standards under Section 111) to
provide “such information as the Administrator may reasonably require.”
EPA’s powers under Section 114 are broad. See generally Dow Chem. Co. v.
United States, 476 U.S. 227, 233-34 (1986) (“Regulatory or enforcement authority
generally carries with it all the modes of inquiry and investigation traditionally
employed or useful to execute the authority granted,” and Section 114 specifically
“appears to expand, not restrict, EPA’s general powers to investigate”); Ced’s Inc. v.
EPA, 745 F.2d 1092, 1099-1100 (7th Cir. 1984) (Section 114 authorizes EPA to copy
any records of any person subject to any requirement of the Clean Air Act,
regardless of whether EPA has previously required those records to be maintained).
But EPA not only does not propose to use these powers to obtain the needed
information—it does not mention Section 114 in the Technical Support Document.
EPA must determine whether the facilities considered in the Revised Proposal
received assistance or tax credits under the Energy Policy Act. To do so, it is
obliged to use all means available to it, including Section 114. At the very least, if

imposed by the Energy Policy Act. This will frustrate the court’s consideration of whether the rulemaking was
proper under 42 U.S.C. § 7607(d)(9) (standard of review for challenges to Clean Air Act Section 111

EPA does not use Section 114, it must justify why it declines to do so and offer an
opportunity for the public to comment on its justification.

Regarding the receipt of financial assistance under the Energy Policy Act, there
is simply no reason why EPA could not use Section 114 to ascertain whether or not
the sources on which it has proposed to base its new source performance standards
have received financial assistance under the Energy Policy Act. Contrary to EPA’s
intimations, receipt of grant money under the Energy Policy Act is not even
arguably subject to privacy concerns. Where EPA gives no explanation for its
failure to use an available statutory power that would ensure the collection of
necessary information, and proposes to treat a failure to report as a statement that
there is nothing to report, it is fair to infer that the agency is acting arbitrarily in
not attempting to obtain the information.
Regarding the receipt of tax credits, although EPA still does not mention Section
114, the agency’s general position is that, “[b]ecause of [taxpayer privacy] rights,
there is a limited amount of information about the facilities affected by [26 U.S.C.]
§ 48A that is available to EPA.” Technical Support Document at 15. But EPA does
not identify the source of the taxpayer privacy rights it mentions, which frustrates

Natural Resources Defense Council v. EPA, 529 F.3d 1077 (D.C. Cir. 2008), is not to the contrary. In that
case, the D.C. Circuit held that it was “not unreasonable for [EPA] to decline to invoke its section 114 authority
when more efficient data-collection methods were available,” id. at 1085. But there, the data in question were
sought to inform EPA’s “analysis of the residual health risks from facilities that use or produce synthetic
organic chemicals,” id. at 1084. Such an analysis does not require a 100% response rate. Rather, it requires
merely a high enough response rate to ensure reliability of a risk assessment, see id. at 1085, and is not
necessarily fatally undermined by “some gaps in the data,” id. The question here, by contrast, is whether the
individual facilities considered by EPA in the Revised Proposal did or did not receive assistance under the
Energy Policy Act. This is not a question of “efficien[cy]” or representativeness. It requires that EPA be
informed whether each facility received assistance or tax credits; a “gap” in that data makes it impossible to tell
whether EPA has obeyed the Energy Policy Act’s restrictions. Only by invoking Section 114 can EPA ensure
that it will obtain the necessary information. Therefore, in this case it is “unreasonable for the agency to decline
to invoke its section 114 authority,” since no other adequate “data-collection method[] [is] available,” id.

the public’s ability to comment on the substance of the agency’s privacy concerns
and the adequacy of its proposed method of data collection in light of those concerns,
see id. (“solicit[ing] comment on a set of issues that arise due to taxpayer privacy
Presuming that EPA intended to refer to 26 U.S.C. § 6103(a), a federal statute
concerning certain tax privacy issues, it seems clear that this statute does not
preclude EPA from using Section 114 to obtain the information necessary to
ascertain the fact of a facility’s receipt of a tax credit. Section 6103(a) provides that
tax returns and return information “shall be confidential” and that governmental
officers and employees, and others accessing returns or return information as
authorized under the statute, shall not disclose any information so accessed. But
Congress’s mandate in Energy Policy Act Section 1307(b) clearly requires EPA to
determine whether a facility has received tax credits under that section before
relying on data from that facility when setting new source performance standards:
“No use of technology . . . by or at one or more facilities with respect to which a
credit is allowed under this section, shall be considered . . . .”
Congress would not have forbidden EPA to consider information from facilities
that received tax credits without envisioning that EPA would be able to use its
statutory powers to determine whether a given facility had in fact done so. To the
extent two statutes arguably conflict, they must be harmonized, and effect must be
given to both to the extent possible. EPA must know whether facilities have
received tax credits, and it is therefore “reasonabl[e],” 42 U.S.C. § 7414(a)(1)(G), for

the Administrator to require at least a yes-or-no answer to that question. And the
“overriding purpose of the confidentiality provisions of § 6103” is to protect abuse of
tax returns and tax information by government, particularly “for partisan political
purposes,” McSurely v. McAdams, 502 F. Supp. 52, 56 (D.D.C. 1980). In invoking
Section 114 to determine the mere fact of receipt of tax credits, EPA would not be
engaging in partisan abuse, but rather would be honoring Congress’s intent in
enacting the restrictive provisions of the Energy Policy Act.
Further, “return information” is defined by the statute by reference to
information intended for the Treasury Secretary:
The term ‘return information’ means . . . . a taxpayer’s identity, the
nature, source, or amount of his . . . credits . . . or any other data,
received by, recorded by, prepared by, furnished to, or collected by the
Secretary with respect to a return or with respect to . . . liability (or
thereof) of any person under this title . . . .
26 U.S.C. § 6103(b)(2)(A) (emphasis added). EPA’s inquiry under Section 114 would
be posed directly to the facilities’ owners and operators, whose response need not
take the form of copies of returns or other “return information” as prepared in the
normal course for transmission to the IRS. The information that EPA would
require under Section 114 therefore is likely not covered by Section 6103 at all.

EPA at the very least owes the commenting public an explanation of why it has
declined to use means much more likely to elicit a full and timely provision of the
necessary information. (Again, these privacy concerns do not apply at all to

Cf. Lomont v. O’Neill, 285 F.3d 9, 15 (D.C. Cir. 2002) (“An element of ‘return information’ is that it be
‘received by, recorded by, prepared by, furnished to, or collected by the Secretary.’ 26 U.S.C. § 6103(b)(2). Yet
here state and local officers obtain the information from the person seeking to make a firearm before the ‘return’
is filed with the Secretary. Thus, no employee of the federal government is disclosing a ‘return’ or ‘return
information’ ‘received by, recorded by, prepared by, furnished to, or collected by the Secretary’ in violation of
§ 6103(b)(2).”).

information regarding receipt of financial assistance under Energy Policy Act
Section 402.)
Finally, EPA solicits comment on whether it may treat a facility’s failure to
respond as an indication that the facility did not receive assistance or tax credits
under the Energy Policy Act. Technical Support Document at 7, 15-16. It may not.
The Energy Policy Act restricts EPA’s consideration of data from “facilities receiving
assistance under this Act,” § 402(i), and forbids it from considering data from
“facilities with respect to which a [tax] credit is allowed,” § 1307(b)—not data from
“facilities responding in the affirmative to EPA’s request for information.” To treat
failure to respond as a response in the negative, especially when the request for
information does not invoke EPA’s statutory authority to request information, is
contrary to the plain language of the Energy Policy Act and is arbitrary and
Congress restricted EPA’s ability to set Clean Air Act standards based on the
clean-coal technology employed at facilities that received assistance under the
Energy Policy Act. It did so because it feared that, without these restrictions,
information from those facilities would distort EPA’s view of what is technologically
and financially achievable. EPA ignored these restrictions, and its recent new
source performance standards proposal relies heavily on precisely those facilities
which Congress intended to limit or eliminate its ability to consider. This proposal
violates the plain text and unambiguous intent of the Energy Policy Act’s

restrictions. EPA now attempts to conceal its violation by proposing erroneous
interpretations of a statute that it does not administer, along with an arbitrary,
inadequate means of collecting necessary information. EPA’s proposals in the
Technical Support Document do not honor Congress’s intent, nor do they respect the
public’s right to offer informed comment on the Revised Proposal.

Respectfully submitted,

William Yeatman, Senior Fellow, Competitive Enterprise Institute, Washington
Darin R. Bartram, Partner, BakerHostetler, Washington, D.C.
Justin J. Schwab, Associate, BakerHostetle, Washington, D.C.

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