The Environmental Protection Agency’s Environmental Appeals Board (EAB) declined to hear a Clean Air Act (CAA) challenge to a permit issued for construction of a coal-fired electric generating plant near Springfield, Illinois, on grounds the petitioners failed to properly raise their climate change arguments during public comment on the draft permit. Although the EAB did not reach the merits of the petitioners’ argument that the failure to include Best Available Control Technology (BACT) for CO2 violates the CAA, the Board did note that the issue “remains a matter of considerable dispute.”

The Sierra Club had argued that it was entitled to raise the CO2 BACT issue on appeal because the Supreme Court’s decision in Massachusetts v. EPA was issued after the comments period on the permit closed. The EAB rejected the argument, finding that CAA regulations explicitly limit appeals to “all reasonably ascertainable issues” raised during the public comment period. The Supreme Court’s finding the CO2 is a “pollutant” under the CAA was, the EAB found, “reasonably ascertainable” and therefore Sierra Club was obligated to raise the issue before the state agency prior to issuance of the permit.

The EAB did note that it had granted review in Sierra Club’s challenge to a coal-fired power plant in Utah on the same grounds. In that case, the Board noted, Sierra Club did properly raise the CO2 BACT issues during the comment period — signifying that it is merely a matter of time before the courts are again asked to define the reach of the CAA into the realm of climate change.

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