Supreme Court Issues Its Decision on EPA's GHG Tailoring Rule

by Erin Voegele (Biomass Magazine) On June 23, the U.S. Supreme Court issued its decision on the U.S. EPA’s Tailoring Rule. While the court invalidated a portion of the rule, it essentially held up EPA’s ability to regulate greenhouse gas (GHG) emissions for certain facilities, specifically those required to obtain a Prevention of Significant Deterioration permit due to the emission of other regulated pollutants. The court’s ruling, however, did nothing to address the uncertainty faced by those in the biomass industry with regard to the EPA’s treatment of biogenic emissions.
In its decision, the Supreme Court indicated that the EPA exceeded its statutory authority when it interpreted the Clean Air Act to require PSD and Title V permitting for stationary sources based on their GHG emissions. “Specifically, the agency may not [GHGs] as a pollutant for purposes of defining a ‘major emitting facility’ (or a ‘modification’ thereof) in the PSD context or a ‘major source’ in the Title V context. To the extent its regulations purport to do so, they are invalid. EPA may, however, continue to treat [GHGs] as a ‘pollutant subject to regulation under this chapter’ for purposes of requiring [best available control technology (BACT)] for ‘anyway’ sources,” wrote the Supreme Court in its decision.
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EPA proposed its Tailoring Rule, which among other actions aimed to tailor default emissions levels contained in the CAA to make them applicable to GHG emissions. The Tailoring Rule was finalized in May 2010. The final rule, however, did not address the difference between biogenic and fossil-based carbon emissions. Several groups subsequently challenged EPA’s failure to differentiate between biogenic carbon emissions and those from fossil fuels. In 2011, the agency issued a final deferral for carbon dioxide emissions from bioenergy and other biogenic sources under PSD and Title V permitting. The rule deferred regulation of biogenic emissions for three years.
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According to BPA (Biomass Power Association) President and CEO Bob Cleaves, the court accepted the request to put the case on hold pending the Supreme Court’s underlying analysis and ultimate decision on the validity of the tailoring rule. “What the Supreme Court did yesterday, for all intents and purposes, is invalidate the tailoring rule,” Cleaves said.
As it stands now, the EPA will regulate GHG emissions from facilities that are required to obtain PSD permits for any other regulated pollutant.
... As such, it is possible that biomass power plants, ethanol plants, advanced biofuel plants, and others in the bioenergy sector will be subject to EPA’s GHG regulations, assuming they are already required to obtain a PSD permit. How biogenic emissions generated at these facilities will be treated under the regulations is currently unclear, and won’t be until the EPA completes its framework for biogenic carbon emissions. READ MORE