Seeing the Forest for the Trees: Regulating Carbon Dioxide Emissions from Bioenergy Production under the Clean Air Act

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I. INTRODUCTION  II. REGULATING GREENHOUSE GAS EMISSIONS UNDER THE CLEAN AIR ACT  III. CLIMATE CHANGE IMPLICATIONS OF BIOENERGY PRODUCTION       A. The Role of Biomass in the Carbon Cycle      B. Management-Related Factors and Considerations      C. Biomass Feedstocks Have Varying Carbon Impacts  IV. EXEMPTING BIOGENIC C[O.sub.2] EMISSIONS FROM REGULATION       A. The Deferral Rule      B. Can EPA Consider Offsite Sequestration in PSD Applicability         Determinations?          1. "Any Air Pollutant"         2. "Major Emitting Facility"         3. "Potential to Emit"       C. Legal Justifications for a Permanent Exemption          1. The "Administrative Necessity" Doctrine         2. The Absurd Results and De Minimis Doctrines  V. BIOMASS AS THE BEST AVAILABLE CONTROL TECHNOLOGY FOR BIOGENIC    C[O.sub.2] EMISSIONS       A. The BA CT Analysis: A Top-Down Approach      B. Applying BACT to Advance Bioenergy Policy  VI. CONCLUSION 


Biomass is the black sheep of the renewable energy family. In the context of energy production, "biomass" refers to a broad variety of biologically based feedstocks (1) that provide fuel for bioenergy generation. (2) Bioenergy represents an appealing renewable energy source for a variety of reasons: Biomass is globally abundant and is replenished through cycles of harvest and regrowth. (3) Bioenergy can be generated from a wide variety of feedstocks, eighty areas of the country have access to locally sourced fuel supplies. (4) Moreover, because bioenergy is typically generated through combustion, existing infrastructure currently used to generate fossil fuel-fired electricity may be easily converted for bioenergy generation. (5) In addition, the ability to store excess bioenergy feedstocks allows bioenergy to serve as a source of baseload power. (6) However, bioenergy production has negative implications as well: Biomass production may require large amounts of land and thus may compete with other beneficial land uses, such as food production. (7) In addition, the combustion of biomass generates a significant amount of emissions that contribute to air pollution and climate change. (8) Biomass is therefore a controversial energy source, and it is unclear how existing Clean Air Act (CAA) regulations should apply to biogenic C[O.sub.2] emissions. (9)

Concerns over climate change and the environmental impacts associated with fossil fuel emissions influence renewable energy policy in the United States. (10) In 2007, the Supreme Court determined that greenhouse gases (GHGs) meet the definition of "air pollutant" under the CAA, and held that the U.S. Environmental Protection Agency (EPA or the Agency) must regulate GHG emissions under the CAA if the Agency determined that these emissions contribute to climate change. (11) In accordance with this mandate, EPA determined that anthropogenic GHG emissions contribute to air pollution that endangers public health and welfare, (12) and subsequently issued an "Endangerment Finding," a necessary prerequisite to regulating GHG emissions under the CAA. (13) In 2010, EPA finalized rules regulating GHG emissions from motor vehicles and stationary sources. (14) The Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas Tailoring Rule (Tailoring Rule) adjusted the applicability requirements of the CAA's PSD program to make regulation of GHG emissions administratively feasible. (15) The PSD program regulates emissions from new or modified "major emitting" stationary sources in areas that are in attainment of National Ambient Air Quality Standards (NAAQS).18 The Tailoring Rule applies the program's requirements to new and modified major stationary sources with potential to emit GHGs above a specific regulatory threshold; accordingly, these sources must now obtain PSD permits prior to commencing construction and must apply the "best available control technology" (BACT) to each regulated air pollutant they may emit. …