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The Environmental Protection Agency (EPA) finalized greenhouse gas emission limits for existing coal-fired and new natural gas-fired power plants in May 2024. These limits were issued under authority from Section 111 of the Clean Air Act. Policy Integrity submitted an amicus brief in merits litigation before the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit). Policy Integrity's amicus brief addresses the relationship between regulation of new and existing sources under Section 111 of the Clean Air Act and the applicability of this Court’s past decisions reviewing EPA’s discretion on technical findings under Section 111.

EPA first began to regulate pollution from stationary sources under Section 111 in the early 1970’s. Under Section 111, EPA must identify a "best system of emission reduction" that is “adequately demonstrated” and use the performance of that system to inform development of an “achievable” standard. Beginning with the earliest Section 111 regulations, the D.C. Circuit has reviewed challenges concerning EPA’s determinations of adequately demonstrated systems of emission reduction and achievable standards. Each time the D.C. Circuit has recognized that these determinations are technical judgments within EPA’s discretion and, accordingly, reviewed only whether these determinations conform with reasoned decisionmaking.

Part I of the brief explains why the D.C. Circuit's longstanding case law applies to regulation of both new and existing sources because the cases concern the definition of a “standard of performance” which applies to both types of regulation. Part II of the brief reviews the D.C. Circuit’s relevant case law, including how the Court has reviewed prior challenges to EPA’s technical determinations under Section 111 for whether they conform with reasoned decisionmaking. It then summarizes what has been recognized as reasoned decisionmaking in past cases and demonstrates that the current Rule more than satisfies the bar for reasoned decisionmaking set by the D.C. Circuit in past cases.