Jul 12: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1101, consolidated with 11-1285, 11-1328, 11-1336. On Petitions for Review of Administrative Action of the Environmental Protection Agency. In a split decision, the majority explains that as part of its ongoing effort to limit the emission of greenhouse gases, U.S. EPA issued a rule deferring regulation of "biogenic" carbon dioxide -- non-fossil-fuel carbon dioxide sources such as ethanol -- for three years. Citing scientific uncertainty over how to account for biogenic carbon dioxide's unique role in the carbon cycle, EPA justified this "Deferral Rule" on the basis of the de minimis, one-step-at-a-time, and administrative necessity doctrines. Several environmental groups petitioned for review, arguing that EPA's invocation of these doctrines was arbitrary and capricious. The majority vacated EPA's Deferral Rule.
The majority indicates that EPA defines biogenic carbon dioxide emissions, as emissions "directly resulting from the combustion or decomposition of biologically-based materials other than fossil fuels and mineral sources of carbon." Deferral for CO2 Emissions from Bioenergy and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and Title V Programs ("Deferral Rule"), 76 Fed. Reg. 43,490, 43,493 (July 20, 2011). Biogenic carbon dioxide emissions are generated from, among other things, "the biological decomposition of waste in landfills, wastewater treatment[,] or manure management processes," "fermentation during ethanol production," and the "combustion of biological material, including all types of wood and wood waste, forest residue, and agricultural material." The majority also indicates that the Deferral Rule contains a sunset provision on July 21, 2014, and it is voluntary, i.e. "Each state may decide if it wishes to adopt the deferral and proceed accordingly." At least one State, Massachusetts, is currently regulating biogenic carbon dioxide sources at Step Two of the Tailoring Rule.
The Center for Biological Diversity and several other environmental organizations now petition for review. The Appeals Court reviews the actions of the EPA to determine whether they are (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; or (C) in excess of statutory jurisdiction, authority, or limitations. The Appeals Court also determines that the case is ripe for review. Because EPA regulates carbon dioxide as an "air pollutant," petitioners contend that the agency has no authority to exempt any sources of carbon dioxide, including biogenic sources, from the PSD permitting program.
The majority quickly rejects EPA's use of the de minimis doctrine saying, "EPA expressly disavows this doctrine, explaining that the Deferral Rule has a three-year sunset provision whereas the de minimis doctrine 'is used to establish permanent exemptions'. . . Given this concession, the Deferral Rule cannot be sustained under the de minimis doctrine. On the "one-step-at-a-time" the majority says, "EPA failed to explain in the Deferral Rule what 'full compliance' with the 'statutory mandate' means. EPA's brief. . . nowhere offers an interpretation of the Clean Air Act that would allow the agency to treat biogenic carbon dioxide sources differently. . . Without a clear answer to that question, EPA has no basis for invoking the one-step-at-a-time doctrine."
Finally, EPA next invokes the "administrative necessity" doctrine, which permits an agency to "avoid implementing a statute . . . by showing that attainment of the statutory objectives is impossible." The majority says, "Without deciding whether the middle-ground option could pass muster under the statute, we agree with petitioners that EPA's rejection of that option was arbitrary and capricious."
The majority concludes, "Because the Deferral Rule cannot be justified under any of the administrative law doctrines relied on by EPA, this opinion, contrary to our dissenting colleague's suggestion. . . leaves for another day the question whether the agency has authority under the Clean Air Act to permanently exempt biogenic carbon dioxide sources from the PSD permitting program. If and when EPA adopts a permanent exemption for some or all biogenic carbon dioxide sources, we will have the benefit of three years of scientific study, as well as fully briefed and contextualized arguments about EPA's authority under the Clean Air Act."
The dissenting Justice said, "I believe EPA can -- and should -- defer regulation until it has the time it says it needs to study and resolve the issue it is charged with regulating. I would therefore uphold the Deferral Rule. Alternatively, given that the Deferral Rule expires or will be superseded in a matter of months -- and by then EPA will have at least crystallized the issue before us -- we should hold the case in abeyance as unripe. Accordingly, I respectfully dissent."
Kevin Bundy, a senior attorney with the Center for Biological Diversity's Climate Law Institute said, "Burning trees to generate electricity is dangerous, polluting, and ought to be limited to protect people and the environment. This important decision will reduce respiratory ailments, protect forests and help ensure a healthier, more livable climate." Ann Weeks, legal director of the Clean Air Task Force, who argued the case for the petitioners and appeared on behalf of the Conservation Law Foundation and the Natural Resource Council of Maine said, "Today's ruling upholds EPA's authority to regulate pollution that drives climate change. The court's decision is grounded in an understanding that the science shows that biomass fuels, including tree-burning, can make climate disruption worse. The court clearly noted that the atmosphere can't tell the difference between fossil fuel carbon dioxide and carbon dioxide emitted by burning trees." Niel Lawrence, senior attorney at the Natural Resources Defense Council said, "The science is clear that not all biomass burning is good for the planet and today's ruling rightly affirms science as the guide for how EPA must now move forward on biomass energy production. This decision will ultimately benefit the climate, as well as Americans who want to breathe easier and protect the forests that they love. It will also ensure that our investments in clean energy go to sources that are actually clean."
Access the complete majority opinion, separate concurrence and dissent (click here). Access a release from environmental groups (click here). [#Climate, #Air, #CADC]
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