Marten Law: Under Attack, EPA Defers Greenhouse Gas Permitting for Biomass Projects

Marten Law: Under Attack, EPA Defers Greenhouse Gas Permitting for Biomass Projects

Dustin Till   By Dustin Till, Associate, Marten Law Group PLLC

"With its greenhouse gas regulatory program under attack from Congress, and facing significantly reduced funding for climate change programs, EPA has proposed new rules that will temporarily defer-and possibly exempt-greenhouse gas permitting requirements for carbon dioxide (CO2) emissions attributable to the combustion of biomass and other biologically-based (biogenic) fuels," writes Dustin Till. "The new rules defer-for at least three years-permitting that would otherwise have been required under EPA's controversial Tailoring Rule, which went into effect on January 2, 2011. Under the Tailoring Rule, new and modified facilities with annual greenhouse gas emissions exceeding 75,000 metric tons are required to comply with EPA's Prevention of Significant Deterioration (PSD) and Title V permitting standards, including the use of Best Available Control Technology (BACT)."

"The Tailoring Rule had the potential to delay or halt the construction of biomass cogeneration facilities, which qualify as renewable energy producers under many state-level renewable portfolio standards (RPSs), and is opposed by many in the industry," explains the author. "Under the new rules, during the three-year deferral period, EPA will consider whether a permanent exemption is permissible for at least some (and perhaps all) types of biogenic feedstocks, including an evaluation of the controversial issue of whether biogenic CO2 emissions result in a net increase in atmospheric CO2 concentrations. In the meantime, EPA's new rules, which are slated to be finalized later this year, will likely ease Clean Air Act permitting of biomass cogeneration power plants, biomass boilers, and other industrial facilities with significant CO2 emissions from the combustion or fermentation of biogenic fuels."

"EPA's proposal, however, is not without controversy," points out Dustin, who practices law at the Marten Law Group LLC. "On April 7, 2011, environmental NGOs filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit challenging EPA's decision to grant an industry petition to exclude biogenic CO2 emissions from greenhouse gas permitting requirements. EPA's granting of that petition resulted in the proposed permitting deferral, and if adopted, EPA's deferral will also likely face legal challenges."

As a lawyer with the Marten Law Group, Dustin Till practices environmental and land use litigation with a special focus on climate change issues, permitting, and environmental review in the Pacific Northwest. Dustin represents clients in Washington, Oregon, Idaho and Alaska on a broad range of environmental matters, including permitting and energy infrastructure siting. Dustin shares his climate change expertise on behalf of Marten Law Group writing ongoing articles for Lexis Nexis' Environmental Law and Climate Change Center. Dustin has appeared before the Eighth Circuit Court of Appeals, federal district court and the Washington State Court of Appeals.

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