Court vacates EPA Deferral Rule for biogenic GHG emissions

By The American Forest & Paper Association and American Wood Council | July 15, 2013

The U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) has ruled in the case Center for Biological Diversity v. U.S. EPA that EPA provided insufficient legal justification to defer greenhouse gas (GHG) regulation of biogenic emissions and vacated the agency’s Deferral Rule. 

“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. 

“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.

AF&PA, AWC and others intervened on EPA’s behalf when environmental groups filed their challenge in 2011, supporting the agency’s decision to temporarily delay GHG regulation while the agency studied whether and how to regulate these emissions.

In June 2010, EPA released its GHG Tailoring Rule, in which the agency “tailored” GHG regulations to only apply to larger stationary sources of carbon dioxide.  However, in doing so, EPA failed for the first time to recognize the carbon neutrality of biogenic CO2 emissions and did not exclude them from PSD/Title V permitting thresholds.  After industry expressed concern, the agency imposed a three-year deferral of regulating biogenic CO2 in July 2011 to allow for a scientific review of the carbon neutrality of the emissions.  Environmental groups challenged the legality of the EPA’s deferral, which this court ruling addresses.