EPA repeals the power plant carbon rules, then proposes it lacked the power

The Environmental Protection Agency published two documents on 17 September 2026, filed together on public inspection the day before.¹² One is a final rule repealing most of the 2024 Carbon Pollution Standards for power plants; the other is a supplemental proposal arguing that the agency lacks the statutory authority to set such standards at all.¹² Both descend from a single notice of proposed rulemaking of 17 June 2025, 90 FR 25752, which carried a primary and an alternative proposal: EPA is “not acting on those proposed determinations at this time” — the primary proposal — and is finalising the alternative while re-proposing the primary on a reframed question.¹³ Both were signed by Administrator Lee Zeldin under Docket ID No. EPA-HQ-OAR-2025-0124.

1. The final rule repeals three things, on grounds EPA describes as “distinct legal and technical.”² It repeals the emission guidelines for existing fossil fuel-fired steam generating units at 40 CFR part 60 subpart UUUUb, the 90 percent carbon-capture-based standards for coal units undertaking a large modification at subpart TTTT, and the 90 percent carbon-capture-based Phase 2 standards for new base load combustion turbines at subpart TTTTa.¹ The technical findings are that 90 percent capture and “therefore, 90 percent CCS have not been adequately demonstrated and the costs are unreasonable,” and that the required infrastructure cannot “be deployed by the January 1, 2032 compliance date.”¹ The legal finding is separate: 40 percent natural gas co-firing is not the best system of emission reduction “because 40 percent natural gas co-firing constitutes impermissible generation shifting under West Virginia and because the Agency erred in the 2024 CPS by construing West Virginia too narrowly in this respect.”¹⁴ EPA estimates compliance cost savings over 2026 to 2047 with a present value of “$160 billion using a three percent discount rate and $95 billion using a seven percent discount rate.”¹ On the other side of the record, EPA reports that “[o]ne commenter noted that the standards the Agency was proposing to repeal would reduce CO2 emissions by 1.38 billion metric tons over roughly two decades,” along with “tens of thousands of tons” of particulate matter, sulphur dioxide and nitrogen oxides.¹ The rule takes effect 16 November 2026.¹

2. The proposal runs the February vehicle argument through a different section of the same statute. It proposes “that CAA section 111 does not authorize the EPA to regulate emissions from power plants in response to global climate change concerns,” which “would also require rescinding the Administrator’s contrary findings and determinations in 2015 and repealing all associated 2015 and 2024 GHG standards for the fossil fuel-fired EGU source category.”²⁵ Section 111(b)(1)(A) carries the same operative phrase section 202(a)(1) does — “air pollution which may reasonably be anticipated to endanger public health or welfare” — and EPA proposes the same reading of it, that “air pollution” is “best read as that which itself threatens health or welfare through local or regional exposure.”² EPA says the section 111 grounds “similarly support” the conclusion it reached in February for vehicles (see EPA rescinds the endangerment finding on three independent bases).²⁶ The grounds offered are “the text, structure, and history of CAA section 111, the applicability and implications of the major questions doctrine, and the futility of power plant GHG standards in relation to the unique and global scale of the underlying problem.”² Comments are due 2 November 2026, and EPA “will hold a virtual public hearing on October 1, 2026.”²

3. The two documents interlock, and the severability language governs only the first. Within the final rule, EPA severs its own three repeals from one another: “[a]lthough the record evidence supporting each of these separate actions may overlap, particularly pertaining to 90 percent CCS, the repeal of each is supported by its own, standalone rationale and is severable from the others.”¹ The supplemental proposal contains no severability language at all. What it does say about the relationship is narrower than severance: “[w]e are not reopening that final rule. Nor are we soliciting further comment on those issues through this supplemental notice, except to the extent that commenters believe the final rule bears on the distinct questions of statutory authority addressed herein.”² The clearest illustration of the interlock is what the final rule leaves standing. It does not repeal the 2024 efficiency-based Phase 1 standards for new stationary combustion turbines, while acknowledging “commenters’ meritorious concerns” about them, and notes that the concurrent proposal, “if finalized as proposed, would resolve commenters’ concerns.”¹

4. On the science the proposal makes a claim worth reading precisely. It states that “global GHG concentrations in the upper atmosphere have continued to rise, driven primarily by increased emissions from foreign sources, all without producing the degree of adverse impacts to public health and welfare in the U.S. anticipated in the 2009 Endangerment Finding and 2015 NSPS and 2015 CPP.”² EPA offers this in support of the futility rationale; it is the agency’s position, not a finding this post adopts. The proposal also recites that the Supreme Court “largely vacated these regulatory efforts in West Virginia v. EPA,” after which EPA promulgated the 2024 standards now being repealed.²⁴