Federal Court Follows Science in Striking Down EPA’s Biomass Emissions Loophole

A key federal court ruling today confirmed that Clean Air Act limits on carbon dioxide pollution apply to industrial facilities, including tree-burning power plants that burn biomass.  The court vacated an exemption the U.S. Environmental Protection Agency had carved out for “biogenic carbon dioxide.”

The decision by a panel of the US Court of Appeals for the DC Circuit in Center for Biological Diversity v. EPA (D.C. Cir. No. 11-1101) found that EPA had improperly exempted all sources of biogenic CO2 from otherwise applicable permitting requirements.

“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,” said Ann Weeks, Legal Director of the Clean Air Task Force, who argued the case for Petitioners and appeared on behalf of the Conservation Law Foundation and the Natural Resource Council of Maine.  “The Court clearly noted that the atmosphere can’t tell the difference between fossil fuel carbon dioxide and carbon dioxide emitted by burning trees.”

“Burning trees to generate electricity is dangerous, polluting and ought to be limited to protect people and the environment,” said Kevin Bundy, a senior attorney with the Center for Biological Diversity’s Climate Law Institute. “This important decision will reduce respiratory ailments, protect forests and help ensure a healthier, more livable climate.”

“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,” said Niel Lawrence, senior attorney at the Natural Resources Defense Council.  “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.”

“The Court’s decision is particularly important for the Southeast.  Now we have an opportunity for a more sensible, science-based policy, one that avoids clear-cutting the region’s wildlife-rich forests for energy while intensifying climate change impacts,” said Frank Rambo, head of the Clean Energy and Air Program for the Southern Environmental Law Center, which is representing Dogwood Alliance, Georgia ForestWatch, South Carolina Coastal Conservation League, and Wild Virginia in the case.

Emissions from power plants and other industrial facilities that burn biomass can accelerate global warming and contribute to a host of respiratory and cardiac problems. Biomass-fueled power plants emit significantly more CO2 per kilowatt produced than power plants that burn fossil fuels—even coal—and it can take decades before that excess CO2 is “re-sequestered” by subsequent plant growth. Under the Clean Air Act, facilities that are required to control their CO2 emissions must also control any “significant” emissions of other regulated pollutants, so the Court’s decision also means that communities near these plants will also benefit from reductions in pollution that causes asthma and other health problems.