Chairs Rodgers and Johnson Press EPA to Extend Public Comment Period for Burdensome Power Plant Standards

Letter

On June 6, 2023, we wrote you to express concerns that, despite your representations to the Committee, you failed to provide meaningful opportunity for the public to comment on the proposed Greenhouse Gas Standards and Guidelines for Fossil Fuel-Fired Power Plants ("Proposal"). In that Proposal, you offered just 60 days for parties to evaluate fully all information within the proposal and to develop thoughtful responses, despite unprecedented complexity and impacts across a range of states, stakeholders, and communities. We requested that you extend the comment period by at least 60 days, consistent with comment periods provided in other Environmental Protection Agency (EPA) Clean Air Act rulemakings that approached -- but did not surpass -- the complexity of the Proposal.

Your response to our request and to other requests on behalf of thousands of affected parties, including states and electric reliability authorities, was to extend the comment period by a mere 15 days, inclusive of two weekends. Your staff asserted the decision rested on your "discretion" to determine what is appropriate and consistent with your policy considerations. This decision raises serious concerns about your adherence to your Clean Air Act and Administrative Procedure Act responsibilities.

Importantly, when you published your decision on June 16, 2023, to announce this wholly inadequate extension, you knew, or should have known, the information about the Proposal available to the public was incomplete and would soon be supplemented by a set of new analyses and modifications to the initial Proposal. Three weeks after your extension, on July 7, 2023, your staff entered a "Memo to the Docket," containing new modeling, new factual assertions, and other analyses that change EPA's original analysis and compliance considerations concerning the Proposal. This adds substantially to the burden on the public to evaluate and develop fulsome comments.

Your actions in this rulemaking to date risk undermining the quality of information and public input necessary to develop appropriate standards. The Clean Power Plan has already been the subject of a Supreme Court decision -- West Virginia v. EPA -- in which the Court found that EPA failed to adhere to Congressional intent. By contravening Clean Air Act and Administrative Procedure Act requirements here, the EPA appears to be heading down a similar path. To help reduce these risks, we request that you provide an additional extension of at least 60 days to allow adequate time for the public to evaluate and comment on all the information in this complex Proposal.

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