Lawsuit Challenges Clean Air Act Exemption for Biomass Burners

Conservation groups filed a lawsuit today challenging an
Environmental Protection Agency rule that exempts large-scale
biomass-burning facilities from carbon dioxide limits under the Clean
Air Act for the next three years. Georgia ForestWatch, Wild
Virginia, the Center for Biological Diversity, Conservation Law
Foundation, and Natural Resources Council of Maine are asking the
federal Court of Appeals for the District of Columbia Circuit to
overturn the carbon dioxide exemption for wood-fired power plants and
other "biomass" incinerators.

EPA's unlawful rule will cause immediate harm as it will encourage a
rush to build biomass power plants and other facilities without
accounting for or controlling carbon pollution that contributes to
global warming.

The ruling is particularly important for the Southeast, the 'fiber
basket of the nation,' where utilities and independent power producers
are moving briskly forward with dozens of large wood-fired power
plants and re-purposed power plants. Local demand from existing and
proposed plants for wood fuel could easily outstrip the supply of
available wood waste, meaning the facilities would need standing trees
to meet the demand.

"The South is already seeing a huge uptick in the number of new and
retrofitted facilities that will burn woody biomass, which will create
increasing pressure to cut native, standing forests for fuel. While
certain types of biomass must be part of our nation's move to clean,
sustainable energy sources, science shows that cutting whole trees
often adds to the carbon output," said Frank Rambo, head of the Clean
Energy and Air Program for the Southern Environmental Law Center,
which is representing Georgia ForestWatch and Wild Virginia.

"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."

"The EPA has no authority to just waive the Clean Air Act for the
benefit of politically favored industries, as it has for the forest
products and bioenergy industries here," said Kevin Bundy, senior
attorney for the Center for Biological Diversity. "The science is clear: Burning our forests for energy makes no sense as a strategy for
dealing with climate change. Widespread biomass development,
which the EPA's illegal exemption aims to facilitate, will undermine
our ability to meet critical near-term greenhouse gas reduction goals
and further degrade our nation's forest ecosystems."

Recent scientific information indicates that burning biomass - trees,
for example - can actually increase global warming pollution, even
compared to fossil fuels. According to scientists, nearly all
biomass fuels cause at least temporary near-term increases in
atmospheric CO2 concentrations, significant amounts of which will
persist in the atmosphere and cause climate damage for a century or
more. This near-term increase directly undermines efforts to
reduce carbon dioxide emissions over the next several years, an effort
that is essential to avoid the very worst damage due to climate
change. The EPA's rule, however, grants all facilities burning
any biogenic materials a three-year hiatus from having to obtain
permits and control their CO2 emissions.

"The EPA is abdicating its regulatory responsibility and writing a
blank check to energy companies by allowing massive increases in
carbon dioxide from biomass incinerators on the drawing board in
Virginia," said Ernie Reed of Wild Virginia.

"The EPA's duty is to protect American citizens and natural resources
from significant risks. We are seeing the growing risks of a changing
climate, including increased droughts and floods, tornadoes and record
summer temperatures. This rule only delays the EPA from doing its
job," said Wayne Jenkins of Georgia ForestWatch.

"Biomass burning is not carbon neutral, and the EPA's action will
result not only in excessive greenhouse gas emissions but also
unacceptable decreases in forest stocks," said Jonathan Peress of the
Conservation Law Foundation. "By ignoring science, the exemption will
cause a far greater share of the earth's carbon to be emitted into the
atmosphere rather than stored in the forest."

"Biomass energy is and should continue to be an important part of
Maine's energy mix," said Dylan Voorhees of the Natural Resources
Council of Maine. "However, it is essential that we use tools
like the Clean Air Act to ensure that we use biomass efficiently to
minimize pollution, and that ensure our forests are managed
sustainably. If we don't, our air, waters and forests will
suffer."

Legal Background

The EPA's rule marks a striking about-face for the agency. The
agency's "tailoring rule" - the June 2010 regulation in which it
spelled out how greenhouse gases would be regulated under Clean Air
Act permit programs - treated biogenic and nonbiogenic greenhouse gas
emissions similarly. When industry groups challenged this aspect
of the tailoring rule, the organizations filing today's lawsuit
intervened to defend the EPA's decision. That case, National
Alliance of Forest Owners v. EPA (D.C. Cir. Case No. 10-1209), is
still pending. The EPA, however, has since reversed
course. Earlier this year, the agency improperly granted an
industry petition for reconsideration of the tailoring rule, a
decision that the organizations filing today's lawsuit challenged in
Center for Biological Diversity, et al. v. EPA (D.C. Cir. Case No. 11-1101). The biomass exemption rule challenged in today's
lawsuit is the final outcome of the EPA's reconsideration process.