In a majority decision, the U.S. Court of Appeals for the District of Columbia Circuit issued a ruling July 12 that could hasten Environmental Protection Agency (EPA) rules on CO2 emissions caused by biomass-fueled power generation.
In a two-to-one vote, a three-judge panel for the D.C. Circuit said that EPA failed to justify its decision to defer regulation of “biogenic” carbon dioxide from non-fossil fuel sources. The EPA case grew out of litigation filed by the Center for Biological Diversity.
Circuit Judge Karen LeCraft Henderson issued a dissenting opinion, saying that EPA should be allowed to “temporarily defer” such regulation. “I believe EPA can—and should—defer regulation until it has the time it says it needs to study and resolve the issue it is charged with regulating,” Henderson wrote.
EPA had cited scientific uncertainty over how to account for biogenic CO2’s unique role in the carbon cycle. EPA also justified the deferral in favor of the “one-step-at-a-time, and administrative necessity doctrines,” the appeals court noted.
The appeals court said EPA was wrong to defer the rules. The court pointed to the U.S. Supreme Court’s decision in Massachusetts versus EPA, which resulted in EPA issuing “cascading series of greenhouse gas-related rules and regulations,” the court said.
Biogenic emission of CO2 can be caused by a variety of things, stemming from decomposition of waste in landfills to the “combustion of biological material, including all types of wood and wood waste, forest residue, and agricultural material,” the court said.
In March 2011, EPA had issued a notice of proposed rulemaking seeking comment on whether it should defer regulation of biogenic sources for a three-year period.
“Although the Deferral Rule is a temporary regulation, it functions, in effect, as a permanent exemption from the PSD [prevention of significant deterioration] permitting requirement for any biogenic carbon dioxide source constructed during the three-year deferral period,” according to the D.C. Circuit.
“We know from oral argument that a biogenic carbon dioxide source in Allendale, South Carolina, has been constructed without a PSD permit, meaning that it has emitted more pollution than it otherwise would have but for the Deferral Rule,” the court said. “There may well be other such sources,” the court said.
Environmental petitioners argue that the deferral rule violates the plain language of the Clean Air Act.
The appeals court said that EPA had not made the case for a three-year deferral.
“If and when EPA adopts a permanent exemption for some or all biogenic carbon dioxide sources, we will have the benefit of three years of scientific study, as well as fully briefed and contextualized arguments about EPA’s authority under the Clean Air Act,” the appeals court said in the majority opinion.
Biomass group considers next move
The court essentially said that EPA’s “stated rationale was not an adequate rationale,” said Biomass Power Association President and CEO Bob Cleaves. The decision effectively sends EPA back to the drawing board, Cleaves said.
The industry has not decided if it will seek legal review of the July 12 decision, Cleaves said. Industry groups such as the American Forest & Paper Association had intervened in the litigation.
The BPA official said the ruling does not represent a major blow to biomass-fueled power generation.
Cleaves does believe, however, that EPA had set up a careful process to review the issue of biogenic CO2 emissions and regrets that some environmental groups found the process inadequate.
“Burning trees to generate electricity is dangerous, polluting, and ought to be limited to protect people and the environment,” said Kevin Bundy, a senior attorney with the Center for Biological Diversity’s Climate Law Institute. “This important decision will reduce respiratory ailments, protect forests and help ensure a healthier, more livable climate.”
“The court’s decision is particularly important for the Southeast. Now we have an opportunity for a more sensible, science-based policy, one that avoids clear-cutting the region’s wildlife-rich forests for energy while intensifying climate change impacts,” said Frank Rambo, head of the Clean Energy and Air Program for the Southern Environmental Law Center, which is representing Dogwood Alliance, Georgia ForestWatch, South Carolina Coastal Conservation League and Wild Virginia in the case.
The case was argued April 8. Center for Biological Diversity versus EPA No. 11-1101.