“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.