By Andrew Childers
WASHINGTON, D.C.--Federal appeals court judges during oral argument April 8
pressed the Environmental Protection Agency to explain where in the Clean Air
Act it is given the authority to temporarily exempt large industrial sources
burning biomass and some landfills from greenhouse gas permitting requirements
(Center for Biological Diversity v. EPA, D.C. Cir., No. 11-1101, oral
Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of
Columbia Circuit warned EPA against “carve-outs that aren't seemingly in the
text.” Kavanaugh noted that the D.C. Circuit had previously upheld EPA's
application of prevention of significant deterioration and Title V operating
permit requirements to greenhouse gas emissions.
“Now EPA doesn't like the policy and is saying it can create an ad hoc
exemption,” he said.
At issue is a 2011 rule that exempts until July 21, 2014, new and modified
facilities that burn wood waste, as well as landfills with emissions from
decomposing biomass, from requirements to obtain prevention of significant
deterioration and Title V operating permits for their greenhouse gas emissions
Reg. 43,490; 129 ECR, 7/1/11).
EPA said it needs that time to study whether emissions from biomass, which
would naturally decay and release its carbon dioxide, should be regulated or
considered carbon neutral for the purposes of permitting.
A coalition of environmental groups, including the Center for Biological
Diversity, Natural Resources Defense Council, and Clean Air Task Force,
challenged the exemption rule as unlawful and unwarranted.
Perry Rosen, the Justice Department attorney representing EPA, said the
deferral is in part intended to give EPA a chance to determine how to measure
emissions from biomass to account for their life-cycle greenhouse gas impact.
EPA deferred the permitting requirement for sources burning biomass because some
of those facilities could “serve to reduce the very pollutant that is being
regulated,” Rosen said. Because biomass and landfills would eventually release
their greenhouse gases anyway, EPA must decide whether those emissions should be
treated differently than other fuel sources and whether permitting officials
should consider carbon sequestration from biomass in the permitting process, he
Section 169(1) of the Clean Air Act requires “stationary sources of air
pollutants which emit, or have the potential to emit, one hundred tons per year
or more of any air pollutant” to obtain prevention of significant deterioration
permits. Judge David Tatel asked whether the word “emit” could be read to
include net greenhouse gas emissions and not just total emissions, but Kavanaugh
was more skeptical.
Although the prevention of significant deterioration statute does not give
EPA the explicit authority to consider life-cycle emissions, Rosen said other
Clean Air Act provisions such as Title II, which regulates automobile emissions,
allow EPA to consider the life-cycle impact of emissions when it evaluates
Ann Weeks, a Clean Air Task Force attorney representing the environmental
groups, said Congress explicitly gave EPA the authority to consider net
emissions under the new source review requirements at Section 173 of the Clean
Air Act, but did not include a similar provision for prevention of significant
deterioration. EPA cannot categorically exclude sources burning biomass from the
prevention of significant deterioration permitting process entirely, Weeks said.
Instead, EPA could issue guidelines for how permitting officials should treat
the fuel during the best available control technology review, which determines
what pollution controls are necessary.
EPA invoked the administrative doctrine of “one step at a time” to defend the
permitting deferral, arguing that the agency needs the additional time to study
biomass emissions to determine whether and how they should be regulated in the
permitting process. That doctrine, if upheld by the court, would allow the
agency to deviate from the text of the Clean Air Act if implementing it as
written would be impossible.
“All EPA is asking for is a reasonable period … to get this right,” Rosen
EPA also applied the doctrine of one step at a time to defend its tailoring
rule, which limits greenhouse gas permitting requirements to only the largest
stationary sources, in a series of legal challenges to the agency's greenhouse
gas regulatory program (Coalition for Responsible Regulation v. EPA, D.C.
Cir., No. 09-1322, 12/20/12; 57 ECR, 3/25/13).
Roger Martella, a partner at Sidley Austin LLP who represents the National
Alliance of Forest Owners and other wood and biomass industry groups that
intervened on behalf of EPA, said the deferral is “indistinguishable from the
tailoring,” except that it has a sunset provision built into it.
Even though EPA has only deferred the permitting requirement until 2014,
facilities burning biomass that received their prevention of significant
deterioration and operating permits prior to that date will not be required to
undergo a best available control technology review for their greenhouse gas
emissions should the exemption expire, environmental groups said.
“EPA has created a blanket exemption from the Clean Air Act permitting and
control requirements,” Weeks said, calling it “a permanent harm.”
The D.C. Circuit allowed EPA to deviate from the statutory permitting
requirements when it upheld the tailoring rule, which limits greenhouse gas
permitting to the largest industrial sources, as part of Coalition for
Responsible Regulation v. EPA. Tatel asked Weeks why the court should not
allow EPA similar deference with biomass emissions, particularly because the
uncertain nature of the science “doesn't seem to be challenged by anybody.”
Unlike in the tailoring rule, EPA has not “met its heavy burden” to
demonstrate that issuing greenhouse gas permits for industrial sources burning
biomass would present any significant burdens or challenges for state
regulators, Weeks said.
“We have no objection to EPA studying the question,” Weeks said. “We do
object to EPA carving out a blanket exemption.”