Def ining “Adequately Demonstrated” - EPA’s Long History of Forward-Looking Regulations

Circuit has repeatedly affirmed that EPA has the “authori- ty to hold the industry to a standard of improved design and operational advances, so long as there is substantial evidence that such improvements are feasible and will produce the improved performance necessary to meet the standard.”28 This recognition from the D. [...] Circuit followed the Congressional directives laid out in the statutory text and legislative history and recognized that “Section 111 looks toward what may fairly be projected for the regulated future, rather than the state of the art at present,” as long as EPA shows that the standards meet a threshold of “achievability.”30 In another 1973 case, that court reaffirmed that Section 111 “does not re. [...] Take the dual absorption system described above: The court was unfazed by the fact that it was used in only one American facility.52 Or take the sulfur scrubbers de- scribed above for multiple categories of stationary sources: By the end of the decade in which EPA first set sulfur dioxide standards, the one vendor and three power plants described above jumped to 16 vendors and 119 facilities53—inc. [...] Nebraska, the Supreme Court again reiterated the importance of weighing “the ‘history and the breadth of the authority that the agency had asserted.’” Biden v. [...] Given EPA’s longstanding expertise in reducing air pollution, “a court is not to substitute its judgment for that of the agency.”77 Conclusion Some critics of EPA’s proposed regulation argue that the statutory term “adequately demonstrated” requires that the technology undergirding EPA’s Section 111 standards already be in widespread use at the time of the regulation.