The entire argument rests on a 36-year-old survey form: "DOE Form 860 (1990) defines electric utility to mean 'a corporation, person, agency, authority, or other legal entity or instrumentality that owns and/or operates facilities within the United States for the generation, transmission, distribution, or sale of electric energy primarily for use by the public.'"

So the leap is: an old survey form says "sale of electric energy primarily for use by the public," therefore anything not grid-connected isn't a sale to the public.

No assessment of prior practice, history, the plain meaning of the statute, or other statutory exemptions. And there are grid-connected plants serving a single customer so why the distinction?

Why the 1990 form? Congress froze it into the statute so a survey agency couldn't rewrite Clean Air Act coverage by editing a questionnaire. EPA is now exploiting that freeze by treating the form's obsolete boilerplate as substantive law; a taxonomy EIA itself abandoned, since modern EIA-860 covers essentially all generators above 1 MW, grid or not.

It's as if Congress defined citizenship by reference to a 1990 Census form, and the agency decided who's a citizen by parsing the instruction booklet.

100% complete BS. The silver lining is that without Chevron deference, this "interpretation" won't survive litigation, though the memo's "not final agency action" disclaimer means challengers may have to wait for an actual permitting decision to sue.

It’s an “or”. Generation, transmission, or sale. Not exclusively sale.