Five Groups Sue EPA Over Punt on Biogenic Greenhouse Gas Regulation

Earlier this year, despite having initially included “biogenic” CO2 in the greenhouse gases to be newly regulated under the Clean Air Act, the EPA reversed its initial decision and announced it needed three years to decide how biomass carbon emissions should be regulated. In response, The Center for Biological Diversity, Conservation Law Foundation, Georgia ForestWatch, Natural Resources Council of Maine and Wild Virginia filed a lawsuit August 15 against the U.S. Environmental Protection Agency, urging the Federal Court of Appeals in Washington, D.C. to overturn EPA’s three-year deferral.

Although EPA has been presented with ample evidence that existing biomass plants already use whole tree harvesting for fuel and that new biomass plants will harvest even more trees, EPA has justified the deferral by stating

EPA has sufficient information at this time to conclude that at least some biomass feedstocks that may be utilized to produce energy have a negligible impact on the net carbon cycle, such as residue material (e.g., sawdust from milling operations) that would have decomposed under natural circumstances in a relatively short period of time (e.g., 10-15 years). Given this negligible impact on the carbon cycle, the gain from regulating emissions from combustion of this feedstock for bioenergy could be considered to be trivial.

EPA’s statement flies in the face of evidence like the air permit for the 75 MW biomass plant proposed in Berlin, NH, which states openly that the plant will burn 113 tons of “whole logs” per hour. In North Carolina, the state’s court of appeals has just upheld a decision by the utilities commission that Duke Energy can burn whole trees in its coal plants to generate “renewable” energy that is eligible for electricity ratepayer-funded renewable energy credits.

As if it weren’t enough that EPA caved into industry demands and issued the deferral, the agency also released guidance that allows facilities to use biomass as “best available control technology” for greenhouse gases.  Just to be clear:  EPA has said the best way for coal to reduce CO2 emissions is to burn biomass, which emits MORE carbon dioxide than coal itself.

This is the path that leads directly to the proposed Wolverine coal plant in Michigan, a 600 MW facility that will co-fire biomass to “reduce” CO2, and the refueling of three Dominion coal plants in Virginia with biomass (which will in fact dramatically increase CO2 emissions from the plants).

In the meantime, instead of passing a moratorium on the construction of new biomass facilities pending completion of its study of biogenic carbon, the EPA instead advertised the deferral as a way to promote the biomass industry, knowing that even if EPA regulates emissions in the future, these facilities will be “grandfathered” and exempt from regulation.

The press release on the suit filed by the five groups is blunt in its assessment: (see full press release)

“Biomass burning is not carbon neutral, and the EPA’s action will result not only in excessive greenhouse gas emissions but also unacceptable decreases in forest stocks,” said Jonathan Peress of the Conservation Law Foundation. “By ignoring science, the exemption will cause a far greater share of the earth’s carbon to be emitted into the atmosphere rather than stored in the forest.”

“The EPA has no authority to just waive the Clean Air Act for the benefit of politically favored industries, as it has for the forest products and bioenergy industries here,” said Kevin Bundy, senior attorney for the Center for Biological Diversity.

“The EPA is abdicating its regulatory responsibility and writing a blank check to energy companies by allowing massive increases in carbon dioxide from biomass incinerators on the drawing board in Virginia,” said Ernie Reed of Wild Virginia.

The central characteristic of biomass energy is its disproportionately large fuel needs and CO2 emissions relative to the small amount of power a typical facility produces. We’re grateful to the five groups that have filed suit for stating the obvious, and we’re looking forward to hearing how EPA is going to justify the deferral of biomass carbon emissions in front of an impartial audience.

Partnership for Policy Integrity