Forestry Groups Seek Rehearing in Lawsuit Overturning Biomass Permitting Exemption

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By Andrew Childers

May 12 — Forestry groups asked federal appellate judges to rehear a lawsuit that struck down a temporary greenhouse gas permitting exemption for facilities burning biomass.

Rehearing is warranted after a recent U.S. Supreme Court decision limited the scope of the EPA's prevention of significant deterioration permitting program for greenhouse gases, the forestry groups told the U.S. Court of Appeals for the District of Columbia Circuit in a May 11 petition for rehearing.

The groups are asking that the same three-judge panel that overturned an EPA rule that temporarily deferred requirements that industrial sources burning biomass obtain permits for their emissions rehear the case.

Rehearing was requested by the American Forest & Paper Association, the American Wood Council, the Biomass Power Association, the Corn Refiners Association, the Florida Sugar Industry, the National Alliance of Forest Owners, the National Oilseed Processors Association, the Renewable Fuels Association, the Rubber Manufacturers Association, the Treated Wood Council and the Utility Air Regulatory Group.

The D.C. Circuit overturned the exemption rule in 2013 after determining the EPA had failed to develop a record to support its decision to exempt sources burning biomass from the permitting requirements while the agency evaluated how to treat biogenic carbon emissions under its permitting policy (Ctr. for Biological Diversity v. EPA, 722 F.3d 401, 76 ERC 2210, 2013 BL 186172 (D.C. Cir. 2013) ).

The case was heard by Judges David Tatel and Brett Kavanaugh, who struck down the exemption rule, and by Judge Karen Henderson, who dissented.

Reason Court Asked for Rehearing 

The court should rehear the case to determine whether any legal issues remain to be resolved after the Supreme Court held that only those industrial facilities that trigger prevention of significant deterioration permitting requirements for emissions of conventional air pollutants would be required to permit their greenhouse gases (Util. Air Regulatory Grp. v. EPA, 134 S.Ct. 2427, 78 ERC 1585, 2014 BL 172973 (U.S. 2014) ).

The forestry groups also argued that the D.C. Circuit should have given the EPA an opportunity to revise its permitting exemption rule rather than vacating it.

The EPA has been developing an accounting framework to address the climate change impacts of biogenic carbon emissions. The current draft of the framework is being reviewed by the agency's Science Advisory Board.

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To contact the editor responsible for this story: Larry Pearl at