Stay of Clean Power Plan: Opportunity for Biomass Industry?

For the biomass industry, a stay of the Clean Power Plan may offer an opportunity otherwise lost, had the EPA been allowed to go forward with its implementation efforts.
By Joel Stronberg | March 28, 2016

The recent decision by the U.S. Supreme Court to stay the implementation of the U.S. EPA’s Clean Power Plan caught nearly everyone off guard.  The decision was unprecedented, in that it was the first time that the high court overruled a decision of a lower court to stay a regulation.

The legal challenge to the CPP was brought by 27 states, the coal industry and a number of utilities. Eighteen states submitted briefs in support of the CPP, and five chose to remain on the sidelines.  The one-page ruling is not a decision on the constitutionality of the plan, but on the authority of the EPA to go forward with its implementation, before a decision of the case by the lower court. The lower court decision is expected in June. That decision—whether supporting or striking the CPP—will undoubtedly be appealed by the losing side. Once the lower court and the appeals courts make their rulings, the case will most probably find its way back to the Supreme Court for a final decision on the merits. 

In this case, it is unlikely that justice will be swift, as it may well take several years before a final ruling is issued by the high court. Why SCOTUS chose to take the unprecedented action it did is a matter of speculation. It is logical to assume that the majority felt the challenge to the regulation has a fair chance of ultimately succeeding, however, and that implementation of the CPP by EPA in advance of a final legal decision would cause irreparable harm to the plaintiff coal companies, utilities and states.  In this instance, the harm is that if the EPA is permitted to go forward with implementation, it would be nearly impossible to undo the action.  According to Federal Energy Regulatory Commission Commissioner Tony Clark,  “…the court was trying to avoid a situation like the one it faced with the mercury rule—by the time the court ruled, the rule had been in effect for years.”

SCOTUS’ decision to scrap the near-term implementation of the CPP strikes at the heart of the President Obama’s efforts to make climate activism a significant part of his legacy. It does not, however, serve as a death knell for clean energy alternatives. According to a ClimateWire poll, 20 states are pressing on with discussions about how to meet carbon emissions limits for power plans, 18 have stopped planning and nine are weighing whether to stop or slow down planning.

 For the biomass industry, it may offer an opportunity otherwise lost, had the EPA been allowed to go forward with its implementation efforts. 

Despite the economic, environmental, and societal benefits that would accompany increased deployment of sustainable biomass technologies, neither state nor federal decision makers have accorded our technologies the respect and attention they deserve. The decision to stay the CPP as written affords the biomass industry—both heat and power—additional time to demonstrate to state and federal decision makers, as well as key stakeholders, the value proposition of supporting the deployment of sustainable biomass resources.  

The states and the federal government must come to understand that diversity of technologies is the preferred path to a cleaner environment. Diversity is key to a healthy ecosystem. Too great a reliance on solar and wind limits the opportunities that come with the support of multiple technological approaches to a healthy environment and economy.  Biomass offers benefits not otherwise available from reliance upon solar and wind. 

Sustainable biomass provides opportunities for sustained rural economic development, reduces the occurrence and severity of forest fires, lends itself equally to distributed generation, and does not suffer from the problem of intermittency and the need for expensive storage technologies.  Well-managed forests are carbon beneficial. 

Although the burning of coal is the biggest culprit when it comes to carbon emissions, the fact is that coal will continued to be burned here and abroad for some time to come. When cofired with sustainable biomass, it emits less carbon than if it were burned alone. 

As Shakespeare wrote, “The problem is not in our stars, but in ourselves.”  If biomass is to garner the support it deserves in state energy plans, then it is up to the industry—both heat and power—to use the time afforded by the recent SCOTUS decision to double, triple and quadruple its efforts to engage local decision makers and key stakeholders in a dialogue that lays out the path to an expanded market for sustainable biomass. 

Author: Joel Stronberg
Consultant, renewable energy and climate change