The Biden administration, in an unopposed motion, is asking an appellate court to vacate an 11th-hour Trump EPA policy effectively barring Clean Air Act regulation of greenhouse gases from most industries beyond utilities, agreeing with critics that the agency unlawfully issued the rule while vowing to "re-examine" the entire policy. "EPA acknowledges that it failed to provide any public notice or opportunity for comment on the central elements of the Significant Contribution Rule, rendering it unlawful," the Justice Department (DOJ) writes on behalf of the agency in a March 17 motion for voluntary vacatur and remand in State of California, et al. v. EPA in the U.S. Court of Appeals for the District of Columbia Circuit. The agency adds that it "does not presently intend to cure the defect through additional rulemaking," with the top political appointee in EPA's air office instead saying the agency will "re-examine" the legal interpretations in the Jan. 13 rule, including the core issue of how to determine which sectors are regulated under the Clean Air Act's section 111 new source performance standards (NSPS) program. Under the Trump rule, the agency established a new threshold, set at 3 percent of total U.S. GHGs, to make a "significant contribution finding" (SCF) to determine when a sector's climate-warming air pollution should be regulated under the NSPS program.
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