A federal appeals court struck down the Environmental Protection Agency’s attempt to delay regulation of biogenic carbon dioxide emissions that come from non-fossil fuel sources like ethanol on Friday, adding yet another question mark around the scope of the greenhouse gas rules.
The court’s decision comes as EPA begins crafting rules sought by President Barack Obama to regulate carbon emissions from existing power plants, the country’s largest source of the greenhouse gas and the centerpiece of the administration’s new efforts to combat climate change.
For years, energy derived from biological sources, including burning wood, was thought to be carbon neutral and preferred over fossil fuels. But in recent years, some environmental groups have challenged that assertion.
The EPA already requires preconstruction review and permitting for greenhouse gases emitted from major power plants and manufacturing facilities. But in 2011, the agency amended its regulatory definition of greenhouse gases to exclude biogenic CO2, citing uncertainty over how to account for its unique role in the atmosphere.
EPA’s deferral rule delays permit requirements for three years at facilities that burn non-fossil fuel sources.
But on Friday, the U.S. Court of Appeals for the D.C. Circuit vacated that rule, saying the agency’s legal justification fell short. The court did leave the agency an opening to decide that the emissions should be exempt from permitting requirements but not in the temporary manner of the agency’s first attempt.
Environmental groups had charged that the EPA has no right to exempt any type of carbon dioxide from Prevention of Significant Deterioration permitting since the agency has defined the gas as an air pollutant under the Clean Air Act. The green groups say there are differences in the way biogenic CO2 works but that those can be managed within the permitting program.
Biogenic CO2 emissions come from decomposition of waste in landfills, wastewater treatment, manure management, ethanol production and combustion of biological materials, such as the burning of wood and other agricultural residue.
It’s a complicated scientific issue since biogenic carbon dioxide doesn’t just come from human activities. A forest fire can result in biogenic CO2 emissions “regardless of whether it was sparked by lightning or as part of a clear-cutting operation. Dead trees emit carbon dioxide as part of the decomposition process,” the opinion read. But greenhouse gases from biogenic sources have a different life cycle than those from fossil fuels.
The issue is also complicated from a legal standpoint — reflected in the differing takes from the three-judge panel, which issued an opinion, a concurring opinion and a dissenting opinion on the case.
Judge David Tatel penned the lead opinion in the case and held that while EPA’s deferral rule “spends pages explaining the scientific uncertainty about biogenic carbon dioxide sources, the additional research EPA plans to undertake, and why three more years of study are warranted, the rule … nowhere offers an interpretation of the Clean Air Act that would allow the agency to treat biogenic carbon dioxide sources differently.”
The 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,” the judge wrote. But, the ruling still leaves the option open for a “permanent exemption for some or all biogenic carbon dioxide sources.”
Judge Brett Kavanaugh, who dissented from court’s previous rulings that upheld EPA’s greenhouse gas regulatory programs, concurred with the overall decision but came to that conclusion by a different path. “As a policy matter, EPA may have very good reasons to temporarily exempt biogenic carbon dioxide from the PSD and Title V permitting programs. But Congress sets the policy in the statutes it enacts; EPA has discretion to act only within the statutory limits set by Congress,” he wrote in his concurring opinion.
He wrote that EPA’s temporary deferral “simply highlights the legal problems” of the program in the first place and that “the absurdities and anomalies flowing from EPA’s statutory interpretation just underscore how flawed EPA’s interpretation was from the get-go.”
The agency is “necessarily making it up as it goes along” when it comes to greenhouse gas emissions, Kavanaugh wrote. “That is not how the administrative process is supposed to work.”
Still, in a surprising comment, Kavanaugh said he did not want to diminish EPA’s “vital public objectives” in addressing global warming. “The task of dealing with global warming is urgent and important at the national and international level. My concern about EPA’s approach does not stem from policy beliefs … but rather from separation of powers principles.”
Judge Karen Henderson disagreed with both of her colleges and wrote in a dissent that EPA should be able to defer regulation until it has a handle on the science.
Groups representing industries that commonly burn biological matter for power said the ruling means more uncertainty for permitting requirements and that EPA needs to settle on its plans quickly.
“In light of the court’s decision, we hope the agency moves expeditiously to issue a new rule recognizing the carbon benefits of biomass energy,” said American Wood Council President and CEO Robert Glowinski.
The forest and paper groups want EPA to quickly issue related regulations and an accounting framework for biogenic CO2 emissions and rule that their industry’s use of biomass-fueled energy is carbon neutral — and different from burning fossil fuels.
“The court’s ruling creates great uncertainty about the permitting requirements for biomass energy and underscores the need for EPA to finalize its rulemaking on the treatment of biogenic emissions,” said American Forest & Paper Association President and CEO Donna Harman.
EPA spokeswoman Enesta Jones said the agency “will review the decision to determine any next steps.”