Center for Biological Diversity v. EPA

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.

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.

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 <a href="https://climatecasechart.com/files/case-documents/2014/20140623_docket-12–1146_opinion.pdf">Utility Air Regulatory Group v. EPA</a>.

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 <a href="https://climatecasechart.com/files/case-documents/2014/20140623_docket-12–1146_opinion.pdf">Utility Air Regulatory Group v. EPA</a> in June 2014 and eventually in the D.C. Circuit’s </a href="https://climatecasechart.com/files/case-documents/2015/20150410_docket-09-1322-10-1073-10-1092-10-1167_order.pdf">amended judgment</a> 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.

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 <a href="https://climatecasechart.com/files/case-documents/2012/20120626_docket-09-1322-10-1073-10-1092-10-1167_opinion-1.pdf">Coalition for Responsible Regulation v. EPA</a>, which upheld EPA’s regulation of greenhouse gas emissions under the Clean Air Act.