Supreme Court's review of EPA authority may affect biomass

By Anna Simet | October 16, 2013

The U.S. Supreme Court has agreed to review whether or not the Clean Air Act granted the U.S. EPA authority to regulate greenhouse gas emissions from large, stationary sources— including biomass power plants—as it did for automobiles.  

On Oct. 15, six of nine Supreme Court appeals were accepted by the justices, who denied multiple other legal challenges to the EPA. Arguments will be heard by the court early next year.

The Supreme Court’s review of the matter has implications for biomass, according to Biomass Power Association President Bob Cleaves, particularly when it comes to the Greenhouse Gas Tailoring Rule. “The EPA is dealing with two issues that relate to our industry right now,” he said. “One is how to respond to the D.C. Circuit ruling in July that invalidated the Tailoring Rule deferral [of biogenic emissions], and secondly, how to measure carbon emissions from biogenic sources. Our reading is that the court appears to be prepared to examine the statutory underpinnings of EPA’s authority to regulate power plants, including biomass, and we’ll continue to work with EPA on the underlying accounting rule for biomass to get the science right on the issue.”

In July, the U.S. Court of Appeals for the District of Columbia Circuit threw out the U.S. EPA’s three-year deferment of biogenic emissions from the Greenhouse Gas Tailoring rule, a result of a suit filed against the EPA that 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 the EPA did not adequately justify its decision, and also failed to explain what the next steps would be regulate CO2 emissions from biomass facilities.

That decision was not about whether EPA can legally exclude biomass, and did not halt the three-year study underway to help EPA determine how to regulate biogenic emissions, Cleaves pointed out. Rather, the Court found EPA’s rationale for deferring GHG regulation as lacking, not that regulation of biomass was scientifically sound or justified under the Clean Air Act, and it still allowed EPA to finalize permanent amendments to its rules regarding the treatment of biogenic emissions, based on the results on the three-year study.

The Supreme Court’s decision now presents uncertainty for the timing of the EPA’s biogenic rulemaking process, however.  “The bottom line being that it will slow efforts down,” Cleaves added.