A U.S. Court of Appeals vacated a 2011 EPA rule that delayed GHG regulations for biomass facilities for three years, finding that EPA’s decision was groundless.
On July 12, 2013, the U.S. Court of Appeals for District of Columbia Circuit ruled in favor of conservationist groups that challenged a 2011 Environmental Protection Agency (EPA) rule to delay greenhouse gas (GHG) regulations for biomass facilities for three years. The 2-1 decision of a three-judge panel found that EPA’s three-year Deferral Rule was groundless.
In May 2010, EPA finalized its GHG Tailoring rule outlining a phase-in approach for new and existing industrial facilities. In January 2011, EPA announced its intent to address issues related to biogenic carbon dioxide (CO2) emissions or non-fossil fuel CO2 emissions, citing uncertainties over accounting for the emissions. EPA subsequently issued the final Deferral Rule in July of that year, seeking more time to study the science associated with biogenic CO2 emitted from stationary sources.
Industry has upheld a “carbon neutral” theory, claiming that carbon released by burning plant products is cancelled out by that absorbed during the plant’s lifetime, resulting in a net-zero contribution to the atmosphere. To justify the rule, EPA invoked three principles – the de minimis impact of biogenic CO2 on the carbon cycle, one-step-at-a-time approach, and administrative necessity doctrines.
Petitioners, including the Center for Biological Diversity, argued that EPA’s invocation was arbitrary and capricious. The court ruling found that EPA has no statutory basis to exempt biogenic CO2 from its rulemaking process and confirmed that regulations under the Clean Air Act apply to biomass-based industrial facilities.
Biogenic CO2 emissions come from ethanol producing facilities and biomass power plants that incinerate forest products to generate electricity. The rapid expansion of the biofuel sector has prompted environmental groups to seek firm industry GHG regulations.
July 15, 2013 via Energy Solutions Forum
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