I’ve written before about how the EPA cannot control the regulation of greenhouse gases under the Clean Air Act. My colleague Marlo Lewis knows this topic better than anyone, and I recommend reading this, this, and this, if you want to grasp the nitty-gritty details. Here’s our thesis in a nutshell:
Regulating air quality under the Clean Air Act is like eating Pringels: Once you pop, you can’t stop. That is, the Clean Air Act is structured such that regulation begets more regulation. This chain reaction is a major reason why the Obama administration’s decision to regulate greenhouse gases pursuant to the Clean Air Act was either foolish or diabolical. In so doing, the Environmental Protection Agency opened Pandora’s Box. It wants to choose when and where it regulates greenhouse gases, but it doesn’t have this discretion. Environmentalist special interests can and will use the courts to force the EPA’s hand. By the same token, however, this means EPA can use such suits as political cover, claiming it does not want to regulate this or that industry, or does not want to regulate under this or that Clean Air Act provision, but has no choice because ‘the court made us do it.’
The latest link in this runaway chain reaction is an environmentalist lawsuit launched this week that seeks to limit the EPA’s discretion as it pertains to the regulation greenhouse gases from biomass power plants. Once again, green groups are using the courts to dictate the pace of the EPA’s climate policies.
For years, biomass was considered a “green” fuel. As a tree grows, it uses carbon-dioxide for food, which cancels out to a certain extent the greenhouse gases emitted when the tree is combusted to generate electricity.
The perception of biomass changed dramatically in June 2010, when a study commissioned by Massachusetts purported to demonstrate that generating electricity from biomass is much more carbon-intensive than previously thought. The study, which was performed by the Manomet Center for Conservation Sciences, is available here.
In June 2010, when the EPA set rules to regulate greenhouse gases from stationary sources under section 111 of the Clean Air Act (the New Source Review provision), it exempted biomass-fired power plants for three years, during which time the EPA would perform a study to determine the “life-cycle” emissions from biomass power. This worried environmentalists, who fretted that the three year window would give utilities an opportunity to rush ahead with biomass. So green groups challenged the delay in court.
According to a story by Gabriel Nelson in yesterday’s Energy and Environment PM (subscription required),
EPA originally said that carbon emissions from biomass should trigger the permit requirements, putting a new hurdle in front of projects that would, for instance, get electricity from wood or the byproducts of farming.
But the agency backed down earlier this year after biomass boosters argued the rules would stifle the growth of an industry that EPA and many environmentalists agree could — if it develops responsibly — slow down climate change. In a final rule released last month, the agency said it will study the life cycle of biomass for as long as three years and then decide how the emissions should be handled (Greenwire, July 5).
Environmental groups, in a lawsuit filed today with the U.S. Circuit Court of Appeals for the District of Columbia, say the decision will cause a rush to build facilities such as biomass-burning power plants without looking at their greenhouse gas emissions.
To see a press statement on the case from one of the environmental litigants, click here.
Even if a study proved conclusively that burning biomass for power resulted in substantial reductions in greenhouse gases, environmentalists still would oppose it. That’s because biomass is the coal industry’s solution to pending greenhouse gas regulations. In documentation preceding the its decision to regulate greenhouse gases under the Clean Air Act, the EPA identified biomass co-firing as one of two emissions controls existing coal-fired power plants could use to achieve compliance with the New Source Performance Standards for greenhouse gases. (The other emissions control was energy efficiency). As such, the future of biomass is dependent on the future of coal. That’s why environmentalists are challenging a technology they once championed.
Situational ironies aside, this lawsuit is more evidence that environmentalists, and not the EPA, are in control of its regulatory regime for greenhouse gases. This should worry us all. As I noted in a previous post,
Legal precedent (in particular, Natural Resources Defense Council v Train; for analysis, see here) indicates that environmentalists can compel the EPA to set a National Ambient Air Quality Standard for greenhouse gases under the Clean Air Act. This would be a disaster, because the logic of the Clean Air Act implies that such a standard would have to be set below current levels, which would mean that the entire U.S. would be in non-attainment. To achieve attainment, the U.S. economy would have to de-industrialize. In fact, the Center for Biological Diversity and 350.org already have petitioned the EPA to establish a greenhouse gas National Ambient Air Quality Standard at a level well below current atmospheric concentrations.