Obama EPA to Determine Whether to Impose Bact Limits for CO2
The EPA Environmental Appeals Board (EAB) ruled today that EPA’s Regional office in Denver erred in ruling that it did not have authority to require installation of Best Available Control Technology (BACT) to control carbon dioxide (CO2) emissions at a proposed coal-fired power plant. In re Deseret Electric Power Cooperative, PSD Appeal No. 07-03 (Nov. 13, 2008). Effectively, this decision places the extent to which EPA will regulate CO2 under the Clean Air Act (CAA) squarely in the lap of the Obama Administration.
This decision has immeasurable implications for not only the electric utility industry, but also any industrial facility emitting carbon dioxide. The issue on which the decision turned was whether EPA had previously interpreted a provision of the CAA as excluding CO2 as a pollutant “subject to regulation” under the Act with respect to the requirement that a “new” source of pollutants install emission control equipment prior to construction of the source.
EPA Region 8 had issued a permit to Deseret Electric Power Cooperative to construct a new coal-fired electric generating unit at the existing Bonanza Power Plant in Bonanza, Utah.
The Sierra Club challenged Region 8’s decision, relying on Massachusetts v. EPA, 549 U.S. 497 (2007), to argue that the CAA required EPA to include a BACT emissions limit for CO2 in the Deseret permit.
In a 69-page decision that industry, environmental groups and Agency lawyers will analyze carefully, the EAB categorically rejected Region 8’s interpretation, remanding the permit to the Region for consideration of whether BACT for CO2 should be included and, as importantly, to develop a record supporting its decision.
The EAB decision will require the Obama Administration to decide early in its tenure whether and to what extent it intends to regulate CO2 emission under the CAA. Moreover, the decision will come in a concrete permit context and not, for example, in a notice of proposed rulemaking pursuant to which the Administration can consider over a longer time frame the direction it wants to go.
For further information about this topic, please contact Akin Gump.
[…] of the case. Early commentary on the ruling is also available on Grist, Climate Progress,and Climate Intel. Warming Law will post additional commentary on the ruling once it becomes […]
Pingback by Warming Law » A “Bonanza” of a Ruling Against “Clean” Coal — November 14, 2008 @ 3:23 PM
“The EAB decision will require the Obama Administration to decide early in its tenure whether and to what extent it intends to regulate CO2 emission under the CAA. Moreover, the decision will come in a concrete permit context and not, for example, in a notice of proposed rulemaking pursuant to which the Administration can consider over a longer time frame the direction it wants to go.”
How much time would the Administration have in either case, the permit context and the proposed rulemaking context?
Comment by Paulina — November 14, 2008 @ 5:50 PM