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Biomass industry reacts to Tailoring Rule decision

By Anna Simet | July 15, 2013

The U.S. Court of Appeals for the District of Columbia Circuit has thrown out the U.S. EPA’s three-year deferment of biogenic emissions from the Greenhouse Gas Tailoring rule, just over one year before it expires.

The ruling is the result of a suit filed against the EPA by the Center for Biological Diversity, which stated that, based on the Clean Air Act, the U.S. EPA does not have authority to temporarily exempt large industrial sources burning biomass and some landfills from greenhouse gas permitting requirements.  The court vacated the deferral based on the conclusion that EPA did not adequately justify its decision, and failed to explain what the next steps would be regulate CO2 emissions from biomass facilities.

In 2010, the EPA adopted the Tailoring Rule to set the thresholds that require stationary sources to obtain Clean Air Act Prevention of Significant Deterioration permits for their carbon emissions. However, in the initial rule, biomass was treated in the same matter as fossil fuels, disregarding biomass’s carbon-sink characteristics.

In 2011, the EPA deferred the application of the PSD and Title V permitting requirements to carbon dioxide emissions from bioenergy and other biogenic stationary sources in order to conduct a detailed examination of the science associated with biogenic CO2 emissions.  The rule went into effect Jan. 2, 2011, with the deferment being finalized the following July.

On the vacating of the deferment, Bob Cleaves, president of the Biomass Power Association, said it didn’t come as a big surprise, based off of content of the preliminary hearing in April. “There was some chance the court was going to vacate the rule, just based on the line of questions the court had for the lawyers participating,” he said. “It’s a pretty narrow decision. In my view, it’s more procedural than of substance. The EPA just has to get this rule finalized sooner, rather than later.”

Cleaves said that a draft rule on biogenic emissions is expected within a couple of months, and then the real question is how long the agency will give the public to comment on it and how long it will take to finalize. “There’s a hard July 14 deadline on the deferral rule, but now that’s been put into considerable doubt, because of the court decision. That could change everything, so everyone’s just waiting on EPA for some guidance on how to move forward.”

The decision may stand, but there’s also a chance groups may seek a rehearing, he added. While it may be a waiting game in terms of the deferral rule, Cleaves said the court’s decision doesn’t change much. “The EPA has to complete the rule, and the decision last week doesn’t speak to the merits of the deferral at all, it just addresses whether or not EPA had the statutory authority to do what they did.”

Dave Tenny, president of the National Alliance of Forest Owners—which spearheaded the push to get EPA to grant biogenic emissions a deferral—said the EPA did the right thing by deferring the regulations while it reconsiders whether forest bioenergy should be regulated the same as fossil fuel energy.  “Forest Owners also did the right thing by defending EPA’s action in court. Now the priority is for EPA to complete its amendments to the Tailoring Rule to fully recognize the carbon benefits of forest bioenergy and to do it promptly. The urgency of the situation has now increased significantly.”

According to NAFO, U.S. forests offset about 14 percent of total annual U.S. carbon emissions, “a benefit to the public that is widely viewed as a key contribution to mitigating climate change.” The group says the the Tailoring Rule amendments will heavily influence the extent to which private forest owners, who own and manage nearly 60 percent of the forests in our country, continue providing that benefit.