EPA Delay Not Based in Science, May Be Unlawful

Today, the U.S. Environmental Protection Agency (EPA) issued an announcement stating they were proposing to "defer for three years, Clean Air Act permitting requirements from bioenergy and other biogenic sources."


At the same time, new EPA guidance is also being provided to permitting authorities that using biomass as a fuel can be considered the best available control technology for CO2 emissions from the large sources needing permits. The EPA says the guidance can be used until they take final action on the deferral. 


Previously, the EPA had ruled that it could not scientifically justify an exemption for bioenergy and other biogenic sources, and that it was not automatically carbon-neutral.  It issued a "Call for Information" where it received over 7700 comments and sufficient scientific evidence of the climate pollution from bioenergy and biogenic sources to take a precautionary approach.  A free pass to pollute for three years appears to be an arbitrary and capricious decision by the agency.


The Environmental Paper Network Joshua Martin, Director of the Environmental Paper Network, responded by saying, 

"A delay of three years ignoring the CO2 emissions from using forests for bioenergy and producing paper products is a delay neither we or the next generation can afford.  This failure to provide guidance will be exploited to perpetuate the damaging myth that turning our forests into bioenergy and paper products is carbon-neutral, leading to costly and environmentally ill-informed decisions by elected officials creating energy policy and purchasers of forest and paper products seeking to lower their carbon footprint.  To make good decisions we need good information, and it is critical that EPA quickly provides scientifically sound guidance on these emissions."  

Clean Air Task Force, a respected advocate of air quality and public health, issued a statement in response as well, which included, 

"EPA’s back-to-back announcements that it will both defer the permitting program for CO2 generated by burning biomass fuels, and allow biomass fuels to quality as categorical BACT for greenhouse gas emissions from stationary sources sets a course that is based entirely in politics, not in science or the law, and will make the climate situation worse in the name of improving it. Our nation faces significant economic costs and choices in order to reduce the greenhouse gas emissions from the electricity generating sector. Today’s decision will make the situation worse."

 The statement goes on to question the legality of this announcement, stating,

Finally, there is nothing in the Clean Air Act that supports either a categorical offramp from permitting or a categorical BACT determination for biomass fuels. Treating a ton of carbon pollution emissions generated by burning trees differently than a ton of carbon pollution emissions generated by burning any other fuel, either on a temporary basis or permanently, is just not justified in the law. Because NAFO and others in the forest products industry had the opportunity to comment extensively on this issue when it was presented by EPA’s PSD and Title V Tailoring Rule in 2010, EPA agreement to reconsider the policy now is not lawful.

The consequence of EPA’s biomass deferral will be unprecedented pressure on valuable and important woody biomass/forestry resources. Forests are important carbon sinks, and the significant deforestation that will result from whole tree burning in power plants will not only release the carbon stored in forests, but also diminish their ability to store and sequester carbon now and into the future.

There will be a 45 day public comment period once the proposal is published in the federal register.  More information from the EPA is here.