PFPI-BiomassIsTheNewCoal-April-2-2014

CO 2 and conventional air pollutants, as well as undergoing air quality impacts modeling.Importantly, the group of bioenergy facilities thus affected would include not only the facilities thatreceived preconstruction permits after July 1, 2011, when Step II of the Tailoring Rule came intoeffect, but also those facilities that had previously received a permit but had not yet startedconstruction by July 1. The CO 2 exemption has thus allowed most facilities with permits issued inrecent years to avoid PSD permitting. No coincidence, a flurry of state-level permits were issuedjust before the July 1 2011 deadline when Step II permitting was to take effect, even though EPAhad indicated it would grant the exemption. Of the permits we reviewed that were issued in 2011,14 were issued before July 1, with 8 of those issued in June. A total of 6 were issued after June.Following EPA’s exemption for bioenergyCO 2 , the Center for Biological Diversity withother environmental groups sued the Agency,challenging the action. In July 2013, the U.S.Court of Appeals for the District of ColumbiaA federal court found that EPA’sexemption for biomass CO 2 was unlawful,and that bioenergy emissions shouldcount under Clean Air Act permittingCircuit ruled in favor of the groups, determining that EPA had unlawfully exempted bioenergyfrom regulation under the Clean Air Act. 31 However, rather than issuing a mandate to EPA toreverse the exemption, the court granted a long delay to the industry litigants that had joined withEPA to defend the exemption, extending the deadline for filing a petition for reconsideration orrehearing by all of the Court’s active judges. 32 The three-year exemption in any case lapses in July2014, at which point EPA will need to take some action on how biogenic CO 2 will be regulated. Inthe meantime, it is unclear whether the court will issue a mandate that directs EPA to reverse itspolicy and officially declare that facilities that are major sources for CO 2 need to go through PSD,although in any case EPA could take action without waiting for the court’s mandate. When and ifthis happens, some bioenergy facility permits that were issued under the exemption could be reopenedand re-permitted through the PSD process. Meanwhile, there are about 60 bioenergyfacilities currently planned or under construction in the U.S. 33 that are over 8 MW in capacity, theapproximate threshold for a major source for CO 2 emissions. By allowing these facilities to escapePSD permitting, EPA’s exemption for bioenergy CO 2 regulation allows the bioenergy capacity “inthe pipeline” to be far more polluting than it needs to be.Loophole 3: State regulators help biomass power plants avoid more protectivepermittingBioenergy developers usually want to avoid going through the PSD process, because conducting aBACT analysis and air quality impacts modeling, determining effective pollution controls, anddealing with public involvement can increase the risk that a high-emitting facility will face more31Center for Biological Diversity v. EPA, D.C. Cir. No. 11-1101, July 12, 201332The D.C. Circuit Court essentially refrained from acting while a number of industry challenges to the Tailoring Rule itself areproceeding in the U.S. Supreme Court. Those challenges—which will determine whether the PSD program applies togreenhouse gases as a whole, not just biogenic CO 2 —are being heard by the Supreme Court in February, with a decisionexpected in mid-2014.33Forisk, Wood Bioenergy US database, December, 201324