D.C. Circuit Rules That EPA Cannot Defer Carbon Dioxide Limits For Ethanol Plants

On July 12, 2013 the United States Court of Appeals for the D.C. Circuit issued an opinion in the case entitled Center for Biological Diversity v. EPA, 722 F.3d 401 (C.A.D.C. 2013).  In 2011 the EPA issued regulations deferring CO2 emissions from bioenergy and other biogenic sources under PSD and Title V programs.  The rule essentially gave the industry, including many ethnaol plants, until July 21, 2014, before the EPA would begin to regulate greenhouse gases, including CO2 emissions, from those industries. Environmental groups challenged the EPA’s deferral in court and on July 12, 2013 the D.C. Circuit Court of Appeals vacated the rule. Arguments were heard before three judges who each issued their own opinions, with one authoring the main opinion, one issuing a concurrence, and one dissenting. This ruling effectively cut one year from the date that the EPA would have to start formulating emissions standards for ethanol and other bioenergy companies. Because of the  short time involved, there does not appear to be a Supreme Court appeal.

The logic behind the deferral was in part based on the unique role that CO2 plays in biofuel production. Although ethanol plants produce vast quantities of CO2, that CO2 is part of an annual cycle of CO2 conversion from the atmosphere to plant matter and from plant matter to back to the atmosphere. In other words, there is not a marked net increase in CO2 into the environment. Ethanol plants are merely moving the CO2 through the natural cycle

The bottom line for ethanol plants is that they should begin to discuss with their air permit engineers permit amendments and renewals that can be put in place now before new rules are implemented so that that they are not caught unawares when filing for new permits. Most plants are already collecting a great deal of data on CO2 emissions and if the new rules require any other treatment or capture, then it may take awhile for the impact of those new rules to be understood.

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About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
This entry was posted in Energy, USEPA News and tagged , , , , , . Bookmark the permalink.

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