Description: Challenge to EPA rule deferring regulation of biogenic carbon dioxide.
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Center for Biological Diversity v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 07/24/2015 Order Download Order issued denying rehearing. The D.C. Circuit Court of Appeals denied a petition by industry groups for rehearing of its 2013 decision rejecting the United States Environmental Protection Agency’s (EPA’s) deferral of regulation of carbon dioxide from biogenic sources. The industry groups included the American Forest & Paper Association, the Utility Air Regulatory Group, and the Renewable Fuels Association. The D.C. Circuit denied their request without comment. The industry groups had argued that the decision needed to be reconsidered in light of the Supreme Court’s 2014 decision in Utility Air Regulatory Group v. EPA. 05/11/2015 Petition for Rehearing Download Petition for rehearing filed. Industry groups filed a petition for rehearing. This litigation had been on hold while other proceedings challenging EPA’s regulatory regime for greenhouse gas emissions made their way to the Supreme Court, culminating in the Supreme Court’s decision in Utility Air Regulatory Group v. EPA in June 2014 and eventually in the D.C. Circuit’s amended judgment in April 2015. The industry groups argued in their petition for rehearing that the D.C. Circuit needed to consider UARG v. EPA’s impact on the rule deferring regulation of biogenic carbon dioxide, given that the “Deferral Rule” amended the “Tailoring Rule,” which was partially invalidated by UARG v. EPA. The industry groups also contended that the D.C. Circuit should have considered remand without vacatur as an appropriate remedy and that the D.C. Circuit had erred in finding that the record did not support the Deferral Rule. 08/26/2013 Order Download Order issued granting motion to extend deadline to petition for rehearing en banc. The D.C. Circuit Court of Appeals granted the intervenors' motion extend the deadline to petition for rehearing en banc. Petitioners had opposed granting the motion to extend the deadline. The court required the respondent-intervenors to file any petition no later than 30 days after the Supreme Court’s decision whether to grant the pending petitions for a writ of certiorari seeking review of the D.C. Circuit’s decision in Coalition for Responsible Regulation v. EPA, which upheld EPA’s regulation of greenhouse gas emissions under the Clean Air Act. 08/20/2013 Opposition Download Opposition filed by petitioners to motion to extend deadline to petition for rehearing. 08/19/2013 Motion Download Motion filed by respondent-intervenors to extend deadline to petition for rehearing. 07/12/2013 Opinion Download Opinion issued. The D.C. Circuit vacated EPA’s rule that deferred regulation of “biogenic” carbon dioxide from non-fossil fuel carbon dioxide sources such as ethanol for three years. The court ruled that EPA could not rely on the de minimis, one-step-at-a-time, administrative necessity, or absurd results doctrines of administrative law to justify this “Deferral Rule.” Judge Kavanaugh wrote a concurring opinion that asserted that in his view none of the above doctrines could apply because EPA had no statutory authority to distinguish between types of carbon dioxide. Judge Henderson dissented, voicing her view that EPA could defer regulation until it had taken the time it needed to study and resolve the issue or, alternatively, that the matter was not ripe for adjudication. 04/07/2011 Petition for Review Petition for review filed. Several environmental advocacy groups filed a lawsuit challenging EPA’s decision to grant an industry petition to reconsider portions of its greenhouse gas (GHG) tailoring rule by deferring for three years GHG permitting requirements for industries that burn biomass. On March 21, 2011, EPA proposed delaying for three years greenhouse gas permitting requirements for new and modified industrial facilities that use wood, crop residues, grass, and other biomass for energy under its greenhouse gas tailoring rule. According to EPA, it will use the time to seek further independent scientific analysis of biomass emissions and develop a rule that lays out whether they should be considered emissions that trigger Clean Air Act greenhouse gas permitting requirements. -
Center for Biological Diversity v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 08/15/2011 Petition for Review Download Petition for review filed. Several environmental groups filed a lawsuit against EPA, challenging an agency rule exempting facilities burning biomass from the requirement to obtain greenhouse gas emissions permits for three years. The lawsuit alleged that the exemption will encourage development of more facilities burning wood and grasses without having to control greenhouse gas emissions. The rule exempted facilities that burn wood, various crop residues, grass, and other biomass from the requirement to obtain Prevention of Significant Deterioration permits and Title V operating permits under the Clean Air Act. EPA granted the deferral in response to a petition by the National Alliance of Forest Owners (NAFO). According to the agency, the additional three years will allow it to conduct further studies of greenhouse gas emissions from biomass. A similar lawsuit was filed in April 2011 challenging the agency’s decision to grant the petition from NAFO. -
Natural Resources Defense Council v. EPA
Case Documents:
Filing Date Type File Action Taken Summary 09/19/2011 Petition for Review Download Petition for review filed. NRDC filed an action in the D.C. Circuit challenging EPA’s decision to defer for three years the requirement that facilities burning biomass fuels obtain GHG permits under the Clean Air Act. The rule, which was adopted July 20, exempts facilities that burn wood, various crop residues, grass, and other biomass from the requirements to obtain prevention of significant deterioration permits and Title V operating permits for their GHG
emissions. EPA granted the deferral in response to a petition by the National Alliance of Forest Owners. According to the agency, the three years will allow it to conduct further studies of GHG emissions from biomass.