Seeing the forest for the trees: regulating carbon dioxide emissions from bioenergy production under the Clean Air Act.

AuthorSchlusser, Ameilia
  1. INTRODUCTION II. REGULATING GREENHOUSE GAS EMISSIONS UNDER THE CLEAN AIR ACT III. CLIMATE CHANGE IMPLICATIONS OF BIOENERGY PRODUCTION A. The Role of Biomass in the Carbon Cycle B. Management-Related Factors and Considerations C. Biomass Feedstocks Have Varying Carbon Impacts IV. EXEMPTING BIOGENIC C[O.sub.2] EMISSIONS FROM REGULATION A. The Deferral Rule B. Can EPA Consider Offsite Sequestration in PSD Applicability Determinations? 1. "Any Air Pollutant" 2. "Major Emitting Facility" 3. "Potential to Emit" C. Legal Justifications for a Permanent Exemption 1. The "Administrative Necessity" Doctrine 2. The Absurd Results and De Minimis Doctrines V. BIOMASS AS THE BEST AVAILABLE CONTROL TECHNOLOGY FOR BIOGENIC C[O.sub.2] EMISSIONS A. The BA CT Analysis: A Top-Down Approach B. Applying BACT to Advance Bioenergy Policy VI. CONCLUSION I. INTRODUCTION

    Biomass is the black sheep of the renewable energy family. In the context of energy production, "biomass" refers to a broad variety of biologically based feedstocks (1) that provide fuel for bioenergy generation. (2) Bioenergy represents an appealing renewable energy source for a variety of reasons: Biomass is globally abundant and is replenished through cycles of harvest and regrowth. (3) Bioenergy can be generated from a wide variety of feedstocks, eighty areas of the country have access to locally sourced fuel supplies. (4) Moreover, because bioenergy is typically generated through combustion, existing infrastructure currently used to generate fossil fuel-fired electricity may be easily converted for bioenergy generation. (5) In addition, the ability to store excess bioenergy feedstocks allows bioenergy to serve as a source of baseload power. (6) However, bioenergy production has negative implications as well: Biomass production may require large amounts of land and thus may compete with other beneficial land uses, such as food production. (7) In addition, the combustion of biomass generates a significant amount of emissions that contribute to air pollution and climate change. (8) Biomass is therefore a controversial energy source, and it is unclear how existing Clean Air Act (CAA) regulations should apply to biogenic C[O.sub.2] emissions. (9)

    Concerns over climate change and the environmental impacts associated with fossil fuel emissions influence renewable energy policy in the United States. (10) In 2007, the Supreme Court determined that greenhouse gases (GHGs) meet the definition of "air pollutant" under the CAA, and held that the U.S. Environmental Protection Agency (EPA or the Agency) must regulate GHG emissions under the CAA if the Agency determined that these emissions contribute to climate change. (11) In accordance with this mandate, EPA determined that anthropogenic GHG emissions contribute to air pollution that endangers public health and welfare, (12) and subsequently issued an "Endangerment Finding," a necessary prerequisite to regulating GHG emissions under the CAA. (13) In 2010, EPA finalized rules regulating GHG emissions from motor vehicles and stationary sources. (14) The Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas Tailoring Rule (Tailoring Rule) adjusted the applicability requirements of the CAA's PSD program to make regulation of GHG emissions administratively feasible. (15) The PSD program regulates emissions from new or modified "major emitting" stationary sources in areas that are in attainment of National Ambient Air Quality Standards (NAAQS).18 The Tailoring Rule applies the program's requirements to new and modified major stationary sources with potential to emit GHGs above a specific regulatory threshold; accordingly, these sources must now obtain PSD permits prior to commencing construction and must apply the "best available control technology" (BACT) to each regulated air pollutant they may emit. (17)

    The final Tailoring Rule applies to emissions of six well-mixed GHGs and does not differentiate between C[O.sub.2] emissions resulting from fossil fuel combustion or those from combustion of biomass feedstocks. (18) In response, EPA received a number of comments from stakeholders requesting that the Agency exempt biogenic emissions from PSD requirements. (19) The stakeholders argued that the production of biomass resources acts as a carbon sink, and therefore bioenergy production does not increase atmospheric GHG concentrations. (20) One basis for these assertions involved the United States' annual GHG inventory, in which EPA reported that the Land Use and Land Use Change and Forestry (LULUCF) sector--which includes bioenergy production--constitutes a net carbon sink. (21) After reviewing available data regarding the GHG implications of bioenergy production, EPA concluded that "at least some biomass feedstocks ... have a negligible impact on the net carbon cycle, or possibly even a positive net effect." (22) This created a dilemma for the Agency: If it proceeded to regulate biogenic emissions under the PSD program, it would impose regulatory burdens on bioenergy sources that may have a negligible impact on net atmospheric GHG levels. (23) If, on the other hand, EPA decided to categorically exempt bioenergy facilities from the PSD program, it risked exempting stationary sources that had the potential to emit significant quantities of GHGs. (24) Instead, EPA decided to defer application of the Tailoring Rule to biomass facilities for a period of three years, to provide the Agency time to conduct a thorough scientific evaluation on the net GHG impacts of biogenic C[O.sub.2] emissions. (25)

    The basis for deferring regulation of biogenic COs emissions involved EPA's assumption that biogenic COs emissions are offset by C[O.sub.2] sequestration in living biomass. (26) EPA determined that biogenic C[O.sub.2] emissions require special consideration because living biomass sequesters atmospheric carbon over relatively short periods of time, and thus may function as a net carbon sink rather than a net carbon source. (27) Underlying policy objectives influenced the final Deferral Rule as well--EPA generally considers biomass a renewable fuel source and "recognize[d] that use of certain types of biomass can be part of the national strategy to reduce dependence on fossil fuels." (28) The Agency noted that a number of states have adopted policies that encourage bioenergy production as a means of reducing GHG emissions and promoting renewable energy production. (29) Taking these considerations into account, EPA concluded that regulation of biogenic C[O.sub.2] emissions may not be warranted; however, the Agency first needed to evaluate the best available science before it could justify permanently excluding biogenic C[O.sub.2] emissions based on the negligible impact these emissions have on net atmospheric carbon levels. (30)

    The final Deferral Rule went into effect in 2011. (31) The Rule operated by excluding biogenic C[O.sub.2] from the group of six well-mixed GHGs that in the aggregate constitute an air pollutant subject to regulation under the CAA. (32) In doing so, the Rule temporarily exempted biogenic C[O.sub.2]-emitting stationary sources from the PSD program's applicability requirements, (22) which are the "set of conditions that determine which sources and modifications are subject to the agency's permitting requirements, (33) The Center for Biological Diversity and several other environmental groups petitioned the U.S. Court of Appeals for the D.C. Circuit to review the Deferral Rule on the grounds that EPA acted arbitrarily and capriciously in issuing the temporary exemption. (35) EPA asserted that the Rule was justified under the "one-step-at-a-time," "administrative necessity," "absurd results," and "de minimis" doctrines. (36) The D.C. Circuit held that these doctrines failed to justify the temporary deferral, and vacated the Rule. (37) However, the court explicitly refrained from deciding whether the CAA allows for a permanent exemption; the opinion "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." (38) Moreover, the court's analysis seems to indicate that the Agency could potentially justify a permanent exemption under the "administrative necessity," "absurd results," and "de minimis" doctrines. (39)

    This Note concludes that the CAA does not grant EPA discretion to exempt biogenic C[O.sub.2] from regulation under the CAA because the net atmospheric impact of biogenic C[O.sub.2] is not a permissible factor to consider in determining whether a source's GHG emissions trigger PSD applicability. (40) EPA may, however, have discretion to consider the net effects of biogenic COs emissions when determining the emissions limitations sources are ultimately subject to. (41) In the preamble to the final Deferral Rule, EPA maintained that the BACT provisions of the CAA are sufficiently flexible to allow a permitting authority to take into account the net GHG impacts of biogenic C[O.sub.2] emissions. (42) In a 2010 guidance document, EPA stated: "There are compelling public health and welfare reasons for BACT to require all GHG reductions that are achievable, considering economic impacts and the other listed statutory factors." (43) The PSD program mandates that potential energy, economic, and environmental impacts associated with available pollution control options are taken into account when making BACT determinations. (44) EPA interprets this provision to "enable permitting authorities to consider the potential sequestration of carbon in biogenic resources outside the boundaries of the facility when evaluating BACT for greenhouse gases." (45) In addition, EPA encourages permitting authorities to take relevant renewable energy policies into account when making BACT determinations. (46) Permitting authorities may therefore conclude that use of biomass is itself BACT for a...

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