Court rejects Baucus-requested EPA rule that gave wood-burning biomass facilities a pass on compliance with federal greenhouse gas emission standards

On Tuesday, Senator Baucus (D-MT) sent President Obama a letter outlining Sen Baucus’ “Montana-centric” ideas for combating climate change. Sen Baucus’ ideas for combating climate change included approving the dirty tar sands Keystone XL pipeline, increasing oil and gas drilling in the Bakken and increasing industrial logging on our public lands.  Yes, you are not alone if you believe these are not good ways to combat climate change. Anyway….In the letter to the President, Senator Baucus also bragged:

“In 2011, in response to me and several other senators, EPA delayed for three years the application of any greenhouse gas permitting requirements to facilities that use biomass, like sawmills.”

Well, today, the U.S. Court of Appeals scrapped the Senator Baucus-supported EPA delay that had given wood-burning biomass facilities a pass on compliance with federal greenhouse gas emission standards. Here’s a copy of the ruling.  This is good news for those who value clear air and reducing pollution.

Here’s an article about the U.S. Court’s rejection of the EPA rule from E & E Publishing. What follows is the opening few paragraphs:

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.

What follows is a quick legal analysis of what today’s U.S. Court ruling means.

As a legal matter this means that:

a)      The court reaffirms its view that EPA has authority to regulate greenhouse gas pollution and that those requirements are clear and mandatory

b)      In order for EPA EVER to implement an exemption from clear statutory requirements, the Agency must justify that under one of the legal doctrines available to it for crafting exemptions, AND with a robust record in science (in this instance) supporting its decision

c)       EPA did not have a robust record supporting the very broad exemption it created here – remember that even though it was for ‘just’ 3 years, it was for EVERY kind of biomass fuel, even though the science shows that burning most biomass fuels make climate disruption worse than burning fossil fuels per unit of energy created by the combustion of those fuels.  Best line from the lead opinion is the one that says that the atmosphere can’t tell a difference between a ton of biogenic CO2 ton and a ton of fossil fuel CO2.

d)      The fact that the court VACATED the rule, didn’t just remand to EPA to ‘fix’ it, shows that the court understood that there isn’t a fix available on EPA’s record – it underscores the point about the science not supporting the broad exemption EPA tried to craft here.

As far as the last question, what this means for facilities permitted during the exemption, it means they are supposed to have pollution control for their CO2 and any other air pollution they emit above the regulatory significance levels.  It means that citizens can go back and demand that, as soon as the mandate issues.  The court as it has in this case typically defers issuance of the mandate pending the review period.

18 thoughts on “Court rejects Baucus-requested EPA rule that gave wood-burning biomass facilities a pass on compliance with federal greenhouse gas emission standards”

  1. What about a ton of uncontrolled GHG’s and CO2 from catastrophic wildfires?!? With the Forest Service making distinct choices to let wildfires burn, shouldn’t that also be regulated by the EPA??? I would really like to see THAT go to court!!

      • Soooo, let me get this straight. It’s OK to knowingly let wildfires burn, with all of their uncontrolled impacts on human beings (and the rest of nature), without mitigation or accountability??

        Let’s take the West Fork Complex, for example. With at least 110,000 acres burned, in thick dead fuels, we can assume 200 tons (as per Dr. Bonnicksen) of GHG’s PER ACRE, resulting in 22,000,000 TONS of GHG’s and toxic gases, uncontrolled by mitigation measures. I would bet that nationwide totals of Let-Burn fires far exceeds the annual amount generated by wood-based biomass burning plants, nationwide. Yes, people, including the elderly and children, are suffering, due to Let-Burn policy.

    • I notice that the study doesn’t mention emissions from trees killed from cambium damage, or accelerated bark beetle blooms. I have seen trees survive the initial burn, only to die-off within 5 years. Also not included is the more powerful GHG’s that come from rotting biomass, including roots from the millions of trees killed. Additionally, bark beetles do not stay within the firelines, either, infesting green forests far away from the original fire, adding to even more fire danger and emissions. Seems that the study doesn’t fully analyze all the impacts, eh?? The study also does not factor in the soils emissions and damages that prevent lands from re-sequestering former amounts of GHG’s. The study doesn’t mention re-burns, either. Fires that are unsalvaged also produce more bark beetles and intense re-burns, than if infested trees are cut and removed.

      Even the study, itself, talks about variables that add emissions. “A severe fire does turn a forest from a carbon sink into an atmospheric carbon source in the near-term,” Law said. “It might take 20-30 years in eastern Oregon, where trees grow and decay more slowly, for the forest to begin absorbing more carbon than it gives off, and 5-10 years on the west side of the Cascades.” When brush dominates after a wildfire, that further diminishes the amount of GHG’s that can be re-sequestered. Also, GHG’s that are pushed into the upper atmosphere cannot be re-sequestered by plants at ground level.

      This statement doesn’t seem all that correct, either; “And in the Pacific Northwest, the majority of burned area is not stand-replacement fire.” My experience on the Biscuit Fire (and many other fires I have personally seen) showed me that HUGE sections are, indeed, “stand-replacing”. Yes, I have pictures of this, posted on this blog.

      The study, at best, is full of cherry-picked science. At worst, it is an agenda-driven piece, meant to reduce active forest management. It clearly doesn’t include ALL the facts and analysis. This snippet shows that opinion is a big part of this study; “…probably overestimated in many cases…”. Does “probably” belong in a study??

      • Larry: This study was headed by the same group and mind-set that gave us Donato on the Biscuit. Your points and suggestions get right at the heart of its problems.

      • You raise some interesting points. Perhaps I shouldn’t post references when on deadline. I also prefer to read the source myself, and I hadn’t looked at that particular study for a while. Now I have had a bit of time to reread “Forest Fire Impacts on Carbon Uptake, Storage, and Emission: The Role of Burn Severity in the Eastern Cascades, Oregon,” Meigs et al., 2009 (assuming this is the study in question–Donato is second author).

        I think your criticisms of Meigs 2009 are not well taken; below ground carbon is thoroughly considered as are a number of the uncertainties inherent in this research. Post fire sequestration capacity (i.e., net primary productivity) is explicitly addressed. The conclusion: ” Despite this decline in live aboveground C pools, total net primary productivity was only 40% lower in high- versus low-severity stands, reflecting a strong compensatory effect of nontree productivity. Thus, the rapid response of early successional vegetation offset declines in NPP and NEP, buffering potential fire impacts on stand and landscape C storage, particularly when combined with the protracted decomposition of dead mass and conservation of belowground components.”

        Regarding your (apparent) claim in an earlier post of 200 tons per acre of C emissions from that specific fire, Meigs 2009 concluded an average (“Across sampled burn area”) of 11 tons/acre (Table 2: 25 Mg/h–1 Mg/h = 0.446089561 short tons per acre). You are off by a factor of 20.

        I looked at some other recent studies to see if Meigs 2009 is clearly out of the range of a reasonable calculation. “Forest floor fuel consumption and carbon emissions in Canadian boreal forest fires,” deGroot et al., 2009, concludes 10.9 tons/acre (2.43 kg/sg.m); “Carbon Emissions from Forest Fires in Boreal Eurasia between 1998-2010,” Shvidenka et al., 2011, concludes 6.8 tons/acre (Table 5: 16.79 tons/h). I didn’t find any studies in the 200 tons/acre range, but I’ll be happy to read them if you post references.

        In short, your conclusion “The study, at best, is full of cherry-picked science.” is not accurate as far as I can tell. I’m not a forest scientist, but you’ll have to do more than throw around inaccurate facts and unsupported claims to undermine a published peer-reviewed paper.

        Moving on: “GHG’s that are pushed into the upper atmosphere cannot be re-sequestered by plants at ground level.” This is absurd; atmospheric dispersion equalizes the presence of CO2 (and all other gases) globally within a few months. Why do you think the measurements of CO2 at the top of Mona Loa in Hawaii (4,000+ meters in the middle of the Pacific) are so steady (i.e., steadily increasing)?

          • Maybe you just forwarded this half in jest – This “tar ball” stuff is interesting, but the article does not really explain how long these particles remain in the atmosphere, how they degrade, and how they may alter the overall direction and magnitude of climate forcing relative to direct GHG emissions.

            • How this relates is that they say in the discussion in their paper:

              ” These details are crucial to assess the accuracy of climate models in describing the contribution of BB aerosol radiative forcing43 and their direct and indirect climate effects. ” It sounds like they are saying that they can’t know that until they know more about the particles.
              They are saying that if you knew, you would be able to model better.

              Anyway, there’s a lot we don’t understand about climate forcing and other factors than GHG emissions. A smattering can be found here..

        • So, are you saying that brushfields sequester more GHG’s than a conifer stand? Are you saying that a loss of soil C and soil N, as shown in a study of before-and-after Biscuit soils shows, is not significant? Adding to the problem is the loss of all organic matter in the soil to a significant depth. Often times, even brush cannot grow back very well, post-fire. Soils are depleted in high-intensity wildfires. Even the soils itself are “vaporized”, and bulk-densities are increased. It seems his soils analysis is inadequate, regarding high-intensity fires.

          In the Colorado wildfire example, there are ample amounts of dry, dead fuels, with a substantial component near ground-level. We all know that fuels burned near the ground result in serious soils damages. That is where my estimate of 200 tons per acre comes from. Additionally, I’m adding on increased tonnage due to the widespread effect of bark beetles (and the fires that accompany them), over multiple generations and multiple years. Dr. Bonnicksen estimates up to 300 tons per acre, under certain conditions so, I am hedging my bet, a bit.

          Spruce stands are notoriously thick so, I think my figure of 200 tons per acre is reasonable. Eastern Oregon stands aren’t nearly as thick as Colorado spruce stands. Such spruce forests hold concentrated carbon in the form of 300-400 year old trees. Canadian boreal forests don’t burn as hot as Colorado spruce forests. A full analysis requires every factor that could add GHG’s per acre. I’m sure that I am not including all GHG sources, as well, since I am writing this off the top of my head.

          Still, even if the tonnage per acre is halved, 11,000,000 tons is a very significant amount, for just ONE wildfire complex. What about a fire of 200,000 acres? What about 500,000 acres. Fire columns can go WAY higher than 14,000 feet, and I’m not even including particulate pollution. The Biscuit column went so high that the sheer weight of it caused a massive collapse, spreading the fire for 2 miles, in all directions.

          The fact is that such catastrophic wildfires are very, VERY bad for our environment, and we should be doing what we can to prevent them. You should be looking at Dr. Bonnicksen’s work, at face value. Same for the post-fire soils study on the Biscuit.

          Just for comparison, I don’t think the Biscuit Fire tonnage is over 100 tons per acre, due to the average forest density, as well as the fire’s intensity. The West Fork Complex is mostly unbroken thick spruce forest, dry as a bone.

          • Assuming you are responding to me, you write, “So, are you saying…” I am stating opinions based on the studies I am able to find quantifying the emission of GHGs from forest fires.

            I’m not contesting the significant adverse impacts of fires, especially hot ones. And I’m not in a position to evaluate your arguments and calculations, especially when they are not directly supported with citations to peer reviewed literature. Bonnicksen’s work is interesting (assume you mean FCEM reports in gray[?] literature), but I don’t see how it informs the GHG calculations in your prior paragraphs.

            Bottom line–please give me citations to studies showing in the range of 200 tons/acre GHG emissions, especially those with follow up on continued emissions as a result of soil damage. Bonnicksen 2008 calculates c. 84 tons/acre for the worst of the four fires reviewed.

            • Well, let’s sort out some of this data. Dr. Bonnicksen estimated 68 tons per acre for the 4 million acres burned in California, in 2007. Certainly, a significantly large amount of those acres were in grasslands, providing a very low amount of GHG’s per acre. Correspondingly, there must have been significant acres that produced significantly more GHG’s per acre than the 68 tons per acre average. If we assume that 1.5 million acres had very low GHG’s (20) per acre, the remaining 2.5 million acres calculate to about 100 tons per acre.

              Certainly, the California landscapes that burned are extremely variable, with significant brush and grass components, as well as sagebrush areas that often burn, in northeast California. Additionally, most of those 4 million acres were not dead and dying forests. The Moonlight Fire is classic eastside pine, with much lower densities than forests in the Coast Ranges, and even the west side of the Sierra Nevada. Much of the Fountain Fire was lower elevation foothill landscapes, also with lower GHG’s per acre. The McNally Fire is also a lower density forest.

              Compared to the thick, unlogged spruce forests within the West Fork Complex (see the picture and video in another posting), it is easy to see how those forests could produce up to 200 tons of GHG’s per acre. Here is an aerial view of a portion of the fire area.


              Remember, I am just estimating, including the wood density of 300-400 year old trees into the equation. Such trees release more GHG’s than 2nd or 3rd growth stands. You should also notice that the subalpine and treeless regions are not included in the fire’s acreage. Additionally, these forests are full of deadfall and centuries of fuels accumulations on the forest floor. Compared to the burned California forests in Bonnicksen’s study, the West Fork Complex’s GHG production far exceeds the 68 tons per acre.

              Here is an aerial view of an adjacent unburned forest next to the Moonlight Fire.


              Here is an aerial view of an area adjacent to the Fountain Fire.


              Yes, there does appear to be a VERY significant difference in fuel loadings, eh?

              It would be easy to say that it is at least double the amount of those California fires that didn’t burn in grass and brush. My new estimate would be over 150 tons per acre. All in all, I’d say that the West Fork Complex is/has produced a mind-boggling amount of pollution and GHG’s, wouldn’t you??

    • louploup2: Since you use a pseudonym, one can only conjecture as to who the “us” might be that is “being told” by BAS that the GHG “problem” is less than someone (“us?”) thought a few years ago. Personally, I’d stopped listening to BAS if I were us, if that link is any indication of how thinking used to be on GHG. Or why the problem is somehow smaller today when it comes to forest fires. (That BAS! Always the fall guy for the nameless experts of the world.)

      • My name is Toby Thaler. The pseudonym is an artifact of how I signed up on wordpress in the first place. And I’ve come to prefer not to have numerous blog posts popping up when people search my name. There are advantages and disadvantages of having a close to unique name globally. (I think there’s another in Belgium.) Regardless, I always try to keep my temper and behave civilly even on the stupidist of blogs. (A challenge, I can tell you!).

        As for “us”, I’m am using a figure of speech to refer to those who read the most current and broadly accepted science on any particular point. There are definitions of BAS in the law because it’s used in a number of federal statutes (like the ESA) and in Washington State’s Growth Management Act (where I am). Search the term; you’ll get thousands of relevant hits.

        And you’re correct; that link I posted in haste is not in itself BAS–it’s a news clip referring to a study that is part of the BAS. The BAS on CE (carbon emissions) from forest fires is composed of the dozens of studies that address the issue in the peer reviewed literature. I dug up a few of them to respond to Larry Harrell’s post above. And not one of the experts in any of the published papers I read/skimmed to prepare my response is “nameless.”

        • Thanks, Toby: Your thoughtful response is very much appreciated. I’ve been on blog posts for a while, too, and stopped participating in several because some individuals (“trolls”) used their anonymity to make ad hominem attacks against others — including those of us with actual identities — and to spout scientific and philosophical truths without any accountability. The civility and time problems.

          I was mostly teasing about the acronyms, because I think they’re an invention of the government agencies to keep us common folk out. And I’m not entirely sure that I’m delusional in that regard — lots of supporting documentation.

          Also, you may be pleased to know that I often introduce myself — and usually get a laugh — as the “second best available science.” Pay attention where the self-proclaimed BAS (“law-based”) funding comes from, and then reflect back on Eisenhower’s predictions for mixing science and politics.

          (Woodland is my hometown.)

          • Acronyms can’t be helped by a lawyer.

            I understand your concern about politics, but science and policy cannot be separated. Our current problems are largely science related–AGW, resource limits, populations overshoot (or at least too much consumption per capita). BAS, like “sustainable” has real meaning, even if it is degraded in most discourses.

            Thank you back.


Leave a Comment

Discover more from The Smokey Wire : National Forest News and Views

Subscribe now to keep reading and get access to the full archive.

Continue reading