Federal Court Rules EPA Must Regulate Carbon Dioxide From Biomass Power Plants

JULY 12, 2013

Ruling Overturns EPA “Deferral” on Biomass, Decision May Have Broad Effects on Biomass Energy Industry

Under a decision issued today by the United States Court of Appeals, the Environmental Protection Agency will now have to “count” carbon dioxide emissions from biomass power plants. Deciding in favor of the groups that brought the suit against EPA – the Center for Biological Diversity, the Clean Air Task Force, the Natural Resources Defense Council, and the Southern Environmental Law Center – the court vacated EPA’s so-called “biogenic carbon deferral” in which the EPA had exempted carbon dioxide emissions from biomass plants and other sources of biogenic CO2 for purposes of Clean Air Act permitting for a period of 3 years pending further study. The Partnership for Policy Integrity (PFPI) provided expert testimony for the case.

“The court’s decision states that once carbon dioxide is released into the atmosphere, it doesn’t matter if it’s from a biogenic or a fossil fuel source – it all contributes to global warming,” said Mary Booth, director of PFPI. “The decision recognizes that the plain intent of the Clean Air Act is to regulate pollutants emitted at the smokestack. Burning biomass emits more CO2 than burning fossil fuels, and the court’s decision shows that EPA failed to follow the science.”

The court decision states that EPA’s justifications for suspending regulation of biogenic CO2 were “arbitrary and capricious,” and that although EPA had acknowledged that burning biomass fuels may have a “significant impact” on greenhouse gas emissions, the agency had rejected solutions that would identify and regulate the largest sources of biogenic CO2.

Because biomass energy qualifies for renewable energy subsidies and tax breaks, there has been an exponential increase in the number of biomass plants being proposed and built in recent years. Most new biomass power plants are fueled with wood, and emit 40 – 50% more carbon dioxide than a coal plant, per megawatt-hour electricity generated. The court’s decision could affect how states choose to incentivize biomass energy in the future. Massachusetts has already made low-efficiency biomass power plants ineligible for subsidies, based on the large amount of CO2 they emit.

Beyond the significance of the decision from a global warming perspective, the court’s action has implications for public health. Under the Clean Air Act, a power plant that is a “major” source for one pollutant, in this case carbon dioxide, is generally considered “major for all,” and is compelled to install “Best Available Control Technology” (BACT) to reduce emissions of particulate matter, nitrogen oxides, and carbon monoxide – the pollutants emitted in the greatest amounts by biomass combustion. The court’s decision states that EPA’s biogenic carbon accounting deferral is causing hardship, because some biomass plants are moving forward without a BACT process, meaning that they emit more air pollution than they “otherwise would have but for the Deferral Rule”.

“Any biomass plant that is bigger than about 7 – 8 megawatts  is a ‘major source’ for CO2 under the Clean Air Act, emitting over 100,000 tons of CO2 per year, and therefore should be required to install Best Available Control Technology for all air pollutants” said Mary Booth. “The court’s reversal of EPA’s deferral will require these highly polluting biomass plants to use better emission controls.”

The court’s decision can be downloaded here.



Partnership for Policy Integrity