DC Circuit ruling leaves door wide open for EPA to quickly amend greenhouse gas regulations

DC Circuit ruling leaves door wide open for EPA to quickly amend greenhouse gas regulationsThe U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) in Center for Biological Diversity v. U.S. Environmental Protection Agency (EPA) on Friday vacated EPA’s three-year deferral of the agency’s greenhouse gas regulations (Tailoring Rule) for biomass on strictly technical grounds. Although the Court found that EPA did not adequately justify its deferral decision in the administrative record, the Court left wide open the prospect that EPA can proceed with its amendments to the Tailoring Rule to appropriately account for the carbon benefits of biomass energy. By doing so, the Court may have just given EPA the final nudge it needs to fix the Tailoring Rule once and for all, and do it quickly.

The central message the Court seemed to be sending EPA was to move forward with a final policy without further delay. This resonated from Judge Tatel’s majority opinion in which he stated: “If and when EPA adopts a permanent exemption for some or all biogenic carbon dioxide sources, we will have the benefit of three years of scientific study, as well as fully briefed and contextualized arguments about EPA’s authority under the Clean Air Act.”

Forest owners share the sentiments of the Court. The most important thing that can happen now is for EPA to complete its rulemaking without delay using the substantial body of information now available to the agency to support the carbon benefits of biomass.

Taking a step back, it makes good sense on a number of levels for EPA to promptly adopt a policy advancing the carbon benefits of biomass. From an environmental standpoint the agency would be unfettering a carbon beneficial source of base load energy that, although small in the overall national energy mix at present, provides a potentially significant renewable energy pathway in the future. Biomass energy from existing and potentially new facilities also provides one more economic reason for forest owners to keep their working forests intact, thereby preserving the substantial carbon benefits they provide.

From a resource allocation standpoint, EPA struggles like the rest of the Federal government to accomplish its mission with a shrinking budget. Committing significant resources toward the development of complicated regulations to cover the nearly non-existent net carbon emissions from biomass energy is, quite frankly, not the best use of the agency’s resources. While the most cost effective approach would be for the agency to return to the policy in place before the final Tailoring Rule, devoting a short-term concentrated effort toward developing a simple, straightforward approach that moves as close to the original policy as possible would at once free up significant agency resources for other priorities while also avoiding an unnecessarily complex and expensive regulatory compliance regime that produces little marginal benefit for the environment.

Finally, by removing the distraction of regulating biomass carbon emissions (and make no mistake, it is a distraction both for the agency and for forest owners), EPA could free forest owners to work both with EPA and other federal agencies on developing climate change solutions that tap the considerable mitigation potential of private forests. In essence, it would send the powerful message to forest owners that they are where they belong – on the solution side rather than the problem side of the climate change equation and that public policy will reward rather than punish them for using their forests and the renewable products they produce to help scrub carbon from the air.

Our advice to the EPA is simple. Take advantage of this opportunity to move quickly and decisively to recognize the full carbon benefits of biomass under the Tailoring Rule. Forest owners will help as they have thus far. Then, once we have removed this distraction, we can focus our combined resources on real solutions with real climate benefits.

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