Court Rejects EPA Rule that Deferred Carbon Standards for Biomass Industry

Court Rejects EPA Rule that Deferred Carbon Standards for Biomass Industry

- by Jeremy P. Jacobs and Jean Chemnick, July 12, 2013. Source: Environment and Energy Daily

A three-judge panel scrapped a U.S. EPA rule today that had given biomass-burning facilities a pass on compliance with federal greenhouse gas emission standards.

The U.S. Court of Appeals for the District of Columbia Circuit panel found EPA failed to justify its 2011 decision that provided a three-year exemption to its greenhouse gas rules for facilities that burn materials ranging from wood and algae to scrap tires.

In exempting biomass, EPA said it needed more time to study the overall impact of the industry's carbon dioxide emissions. Industry has contended that in some instances -- wood burning, for example -- biomass facilities have a net neutral CO2 impact because trees absorb the heat-trapping gas before they are cut down.

Environmentalists didn't buy EPA's approach. The Center for Biological Diversity said the "blanket exemption" violated the agency's greenhouse gas policies.

EPA's 2010 "tailoring rule" outlined a phase-in for greenhouse gas standards. In January 2011, the limits applied only to large facilities that already required permits for ozone, sulfur dioxide and other so-called conventional pollutants. About six months later, the program expanded to apply to large emission sources that weren't required to seek Clean Air Act permits for other pollutants.

During that time, the agency granted a petition for review by the National Alliance of Forest Owners that argued some biomass sources were carbon-neutral over their life cycles. In June 2011, the agency proposed a three-year exclusion for all "biogenic CO2 emissions" in the tailoring rule.

The Center for Biological Diversity contends the biomass facilities' inclusion was "triggered" by the Clean Air Act when EPA began regulating greenhouse gas emissions.

At arguments in April, EPA tried to make the case that the science on biomass sources was unclear and the agency needed more time to study it.

The arguments before the court panel centered on whether the Clean Air Act allowed EPA to consider "net" CO2 emissions over a fuel's life cycle when setting emission limits (Greenwire, April 8).

In the case of biomass, this could include the impact growing a fuel crop might have on carbon emissions due to land use change.

The court sided with the environmental group, finding among other things that EPA failed to explain what the next steps might be for regulating biomass facilities under the Clean Air Act, which might justify a delay in that rulemaking.

"We simply have no idea what EPA believes constitutes 'full compliance' with the statute," the judges wrote in their decision. "In other words, the deferral Rule is one step towards ... what?

"Without a clear answer to that question, EPA has no basis for invoking the one-step-at-a-time doctrine."

Environmentalists hailed the decision. Frank O'Donnell, president of Clean Air Watch, said EPA's move to "cut a special break for biomass pollution was quite obviously a political one -- and today's court decision rightly found that the administration broke the law."

Dave Tenny, president and CEO of the National Alliance of Forest Owners, said in an email to Greenwire that the court's decision should add urgency to EPA's effort to amend its tailoring rule to reflect "the full carbon benefits of biomass energy." Such an amendment might permanently exempt the industry from EPA's CO2 regulations.

"We stand prepared to work with EPA and [the Department of Agriculture] to complete this process quickly and effectively," he said.