Require predicate findings before regulating a new pollutant under CAA 111

Research notes

Resolved — the 2026-09-17 documents do not reach this ask, and the event drafted on them was withdrawn (reviewed 2026-09-23). A 2026-09-17 partial event was drafted resting on EPA’s final partial repeal of the Carbon Pollution Standards (FR 2026-19071) and the supplemental proposal published beside it (FR 2026-19072), written from the documents’ abstracts and left open. Both were read in full at https://www.govinfo.gov/content/pkg/FR-2026-09-17/html/2026-19071.htm and https://www.govinfo.gov/content/pkg/FR-2026-09-17/html/2026-19072.htm. Neither advances the position this Quote asks be restored, and an event carries the same burden as the ask, so the event could only have been not started — and a not started event after the 2025-06-17 partial would read as a downward move that did not happen. The event was never made part of the record, so it was removed rather than rewritten. The Status is unchanged: partial from 2025-06-17.

• The final rule sets the predicate question aside. It repeals the existing-source emission guidelines, the CCS-based large-modification standards and the Phase 2 turbine standards “based on a reevaluation of the best system of emission reduction”, effective 2026-11-16. Of the June 2025 proposal’s predicate-findings determinations it says: “The EPA is not acting on those proposed determinations at this time.” In answer to commenters it adds that EPA “remains concerned that it lacks the requisite statutory authority” and that “other commenters urged that the EPA must resolve this predicate question before promulgating additional or different standards”, and it leaves that question to a later action. Nothing in it adopts the predicate-findings reading as a final interpretation.

• The supplemental proposal argues something broader, and says so. It proposes that §111 “does not authorize the EPA to regulate emissions from power plants in response to global climate change concerns”, on the grounds that “air pollution” means pollution that harms through “local or regional exposure”, the major questions doctrine and the futility of the standards. It frames that rationale as independent of this ask’s: “Regardless whether the EPA must or can make a GHG-specific significant contribution finding for fossil fuel-fired power plants”, the source category must first relate to qualifying air pollution. A broader proposal that would make the predicate question moot is not the restoration of that predicate, so it is not progress on this Quote. It also says “We are not reopening that final rule.”

• The June 2025 proposal this item rests on is still live. The supplemental says EPA “is not soliciting further comment on the primary proposal in the June 2025 NPRM” and “will address such comments as appropriate in a forthcoming final rule addressing the rationales presented in both the primary proposal in the June 2025 NPRM and this supplemental proposal”. So the 2025-06-17 event still describes the record exactly: the position is asserted in a pending proposal and not established. The item moves to done only if that forthcoming final rule adopts the pollutant-specific predicate reading; a final rule resting on the supplemental’s broader ground alone would leave it where it is.

• The position appears in a preamble rather than a policy statement: EPA proposes that §111 requires a significant-contribution finding for the pollutant before it may set standards for it, and then proposes to find that power plant greenhouse gases do not contribute significantly. That is the predicate-findings requirement the Quote asks to be restored, argued as the legal basis for the repeal.

• Partial rather than attempted: the 2025-03-12 directive to reconsider the power plant rules preceded the proposal, the same reading applied to #1106 and #1107. Not done because the proposal is not final and the position is therefore not established.

• The repeal itself is tracked at #1053, which records the 2026-09-17 partial repeal as a note.