On August 12, 2011, several environmental groups, including Dogwood Alliance ally groups Wild Virginia and Georgia Forest Watch, filed a lawsuit challenging the Environmental Protection Agency’s new rule granting biofuel and biomass facilities a free pass to emit carbon unregulated and hastening the widespread deforestation of the Southeast. (76 Fed. Reg. 43,490 et seq. (July 20, 2011))

As it commences regulation of CO2, EPA’s practice for all sources of carbon emissions other than “biogenic” sources is to add up how much a facility is emitting and regulate it if it meets the necessary threshold.  Biogenic sources, on the other hand, will not have to obtain permits for their CO2 emissions, no matter how large.  The problem with this approach is that regardless of what the fuel source is (biogenic or fossil), CO2 still causes climate instability.  Biogenic carbon is not carbon neutral; biogenic sources have recently been found to actually emit more CO2 per unit of energy produced than more energy-concentrated coal and natural gas.   In addition, where trees are harvested for fuel, forests, which are critical carbon sinks, are destroyed, leading to more carbon remaining in the atmosphere.

While EPA’s rule states that the exemption for biofuels and biomass facilities will only last three years, the structure of the Clean Air Act permitting program ensures that the effects of this three-year, one-industry pass will be felt for decades to come.  This is because once an emitting facility is constructed, no additional permitting is required until it undergoes a major modification—which may not happen for decades, if ever.

This special exemption for biomass facilities creates an incentive to build as many as possible over the next three years to take advantage of the competitive advantage the exemption gives these facilities over those using different fuels.  This spells serious trouble for Southern forests.  According to the Forest Service and power producers, there is not enough biomass waste material to meet the projected demand.  Therefore whole trees will have to be used. Anticipating this demand, the North Carolina Utilities Commission recently included whole trees within the definition of renewable energy resources.  This new definition means that, in addition to qualifying for the EPA’s permit exemption, biomass facilities will be eligible for funds intended to encourage renewable sources of energy (such as solar and wind) and will be able to include the energy produced by these facilities when reporting how much of the energy they produce is renewable.

Biomass facilities that would require a Clean Air Act permit but for the exemption also emit other air pollutants, although often in insufficient quantities to trigger permitting requirements (under 100 tons per year).  Therefore, by achieving the exemption for CO2, the biomass industry has obtained an effective exemption from regulation of these other pollutants.  This is bad news for people living near these facilities who will breathe these pollutants that often have acute human health effects, such as triggering asthma attacks or causing cancer.

For all of these reasons, the August 12 lawsuit challenging the EPA’s authority under the Clean Air Act to offer this special treatment to the biomass and biofuel industry should be applauded.