The Sierra Club is challenging EPA’s issuance of a permit for a waste-coal-fired generating unit at a power plant in Utah that did not establish Best Available Control Technology (BACT) emissions limits for CO₂. In re Deseret Power Electric Cooperative (EAB Appeal No. PSD 07-03, Oct. 1, 2007).

Sierra Club asserts that because the Supreme Court has determined that CO₂ is an “air pollutant” under the Clean Air Act (CAA), EPA is obligated to establish BACT for CO₂ emissions in the permit. EPA responded that while the Supreme Court’s decision Massachusetts v. EPA confirmed that CO₂ is a “pollutant” under the CAA, it is not yet a pollutant “subject to regulation” for which BACT is required. EPA indicated that it would determine in the future whether CO₂ endangers public health or welfare, which would be the first step in EPA’s regulation of the pollutant. If EPA delays too long, however, the courts may answer the question for the agency.

The Environmental Appeals Board granted review of the permit decision on November 21, 2007.

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