Lawsuit asks court to review EPA's ruling

Oct 14, 2011

Companies planning to use biomass to produce electricity and biofuels got a break from the Environmental Protection Agency (EPA) this summer when it handed down a three-year exemption from carbon dioxide emissions regulations.

That exemption could be short-lived, however, as environmental, forestry and pulp and paper industry groups are challenging EPA’s decision in court.

Biomass offers a potential new market for agriculture crops to be used to produce biofuels, electricity and other forms of energy. It could be costly for those companies that use biomass to comply with the emissions regulations.

In August, the Center for Biological Diversity (CBD) and others sued EPA, claiming the exemption would lead to a rush in building biomass plants and other facilities without accounting for increased carbon emissions.

The Renewable Fuels Association (RFA) filed a motion Sept. 12 in the U.S.

Court of Appeals for the District of Columbia Circuit joining other groups in an attempt to intervene in the lawsuit that could affect the future of the biomass industry. So far, the court has not ruled on any attempt at intervention, according to court records.

“If biogenic emissions, i.e. emissions from burning or fermenting biomass, are included in determinations of permitting requirements,” said Geoff Cooper, vice president of research and analysis for RFA, “then lots of facilities that may not have otherwise needed certain permits will have to apply for them and will also have to install best available control technology.”

Among other things, RFA makes the case in comments to EPA that biomass is carbon neutral because when plants use it as a fuel, it emits carbon that has already been absorbed by trees and other biomass.

Environmental groups are concerned that EPA is giving biomass users a free pass on emissions.

Ryan Black, climate and energy project manager for the Coastal Conservation League (CCL) in South Carolina, a group that recently joined the lawsuit, said there are 30 or more companies in South Carolina using woody biomass to generate electricity and they have been around for decades.

CCL is concerned about new biomass plants in his state that have sized their projects to qualify as minor source emitters for all pollutants except carbon.

“For carbon, their emissions profiles would have pushed these facilities up into the major emitter category if not for the EPA exemption,” he said.

“Because their carbon exemption keeps them qualified as a minor source of emissions, they don’t have to use as effective pollution controls. We see this as problematic because the carbonneutrality of these facilities is not proven by any stretch of the imagination.”

Black said his group doesn’t have a problem with development companies that are adhering “to the letter of the law.”

“We take issue with the existing regulations, and more importantly, the free pass EPA is giving to the biomass industry without scientific justification,” he said.

Recent studies show that the carbon effects of biomass used for electricity generation depend on a number of variables and assumptions about those variables, Black said. That includes efficiency of a biomass facility, feedstock harvesting practices, type of feedstock, size of the biomass facility and how far biomass is shipped, land use change associated with feedstock production, and emissions control technologies used.

“Developing other less efficient biomass systems is equivalent to buying a 1970s truck that only gets 10 miles to the gallon,” Black said, “and this is but one variable which determines a facility’s carbon impact.

“To exempt an entire industry without taking such differences into consideration was a mistake on the part of the EPA, and to declare an entire industry or technology carbon-neutral is a gross oversimplification of a very complex subject.”

CCL, he said, wants to see South Carolina’s biomass resources developed to benefit rural communities.

However, he said new biomass development should be done carefully.

“Biomass facilities should be sized appropriately so that they don’t strain the local woodshed’s ability to supply waste wood,” Black said.

In an Aug. 15 news release, CBD said EPA exemption will result in increased carbon emissions.

An attorney for two groups that have joined CBD in the lawsuit said in a statement that the exemption will exacerbate climate change.

“The EPA’s action will in the near term increase carbon dioxide emissions that will persist in the earth’s atmosphere and cause climate damage for more than a century,” said Ann Weeks, an attorney at the Clean Air Task Force who represents Conservation Law Foundation and Natural Resources Council of Maine. “The EPA knows this will occur and is offering up a complete exemption from regulation despite that knowledge.” — Todd Neeley, DTN