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Federal Court Follows Science in Striking Down EPA’s Biomass Emissions Loophole

WASHINGTON (July 12, 2013)  –  A key federal court ruling today confirmed that Clean Air Act limits on carbon dioxide pollution apply to industrial facilities that burn biomass, including tree-burning power plants. The court vacated an exemption the U.S. Environmental Protection Agency had carved out for “biogenic carbon dioxide.” The court vacated an exemption the U.S. Environmental Protection Agency had carved out for “biogenic carbon dioxide."

The decision by a panel of the US Court of Appeals for the DC Circuit in Center for Biological Diversity v. EPA (D.C. Cir. No. 11-1101) found that EPA had improperly exempted all sources of biogenic CO2 from otherwise applicable permitting requirements.

“The science is clear that not all biomass burning is good for the planet and today’s ruling rightly affirms science as the guide for how EPA must now move forward on biomass energy production,” said Niel Lawrence, senior attorney at the Natural Resources Defense Council.  “This decision will ultimately benefit the climate, as well as Americans who want to breathe easier and protect the forests that they love. It will also ensure that our investments in clean energy go to sources that are actually clean.”

“Today’s ruling upholds EPA’s authority to regulate pollution that drives climate change.  The Court’s decision is grounded in an understanding that the science shows that biomass fuels, including tree-burning, can make climate disruption worse,” said Ann Weeks, Legal Director of the Clean Air Task Force, who argued the case for Petitioners and appeared on behalf of the Conservation Law Foundation and the Natural Resource Council of Maine.  “The Court clearly noted that the atmosphere can’t tell the difference between fossil fuel carbon dioxide and carbon dioxide emitted by burning trees.”

“Burning trees to generate electricity is dangerous, polluting and ought to be limited to protect people and the environment,” said Kevin Bundy, a senior attorney with the Center for Biological Diversity’s Climate Law Institute. “This important decision will reduce respiratory ailments, protect forests and help ensure a healthier, more livable climate.”

“The Court’s decision is particularly important for the Southeast.  Now we have an opportunity for a more sensible, science-based policy, one that avoids clear-cutting the region’s wildlife-rich forests for energy while intensifying climate change impacts,” said Frank Rambo, head of the Clean Energy and Air Program for the Southern Environmental Law Center, which is representing Dogwood Alliance, Georgia ForestWatch, South Carolina Coastal Conservation League, and Wild Virginia in the case.

Emissions from power plants and other industrial facilities that burn biomass can accelerate global warming and contribute to a host of respiratory and cardiac problems. Biomass-fueled power plants emit significantly more CO2 per kilowatt produced than power plants that burn fossil fuels—even coal—and it can take decades before that excess CO2 is “re-sequestered” by subsequent plant growth. Under the Clean Air Act, facilities that are required to control their CO2 emissions must also control any “significant” emissions of other regulated pollutants, so the Court’s decision also means that communities near these plants will also benefit from reductions in pollution that causes asthma and other health problems. 

The Natural Resources Defense Council (NRDC) is an international nonprofit environmental organization with more than 2 million members and online activists. Since 1970, our lawyers, scientists, and other environmental specialists have worked to protect the world's natural resources, public health, and the environment. NRDC has offices in New York City, Washington, D.C., Los Angeles, San Francisco, Chicago, Bozeman, MT, and Beijing. Visit us at www.nrdc.org and follow us on Twitter @NRDC.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 500,000 members and online activists dedicated to the protection of endangered species and wild places.

The Clean Air Task Force works to help safeguard against the worst impacts of climate change by catalyzing the rapid global development and deployment of low carbon energy and other climate-protecting technologies through research and analysis, public advocacy leadership, and partnership with the private sector.

The Southern Environmental Law Center is a regional nonprofit using the power of the law to protect the health and environment of the Southeast (Virginia, Tennessee, North and South Carolina, Georgia, and Alabama). Founded in 1986, SELC's team of more than 50 legal and policy experts represent more than 100 partner groups on issues of climate change and energy, air and water quality, forests, the coast and wetlands, transportation, and land use.

Dogwood Alliance is increasing protection for millions of acres of Southern forests by transforming the way corporations, landowners and communities value them for their climate, wildlife and water benefits. Dogwood Alliance has revolutionized the environmental practices of some of the world's largest corporations. For more information on the organization please visit, www.dogwoodalliance.org.

Coastal Conservation League is a nonprofit organization organized under the laws of the State of South Carolina and incorporated under Section 501(c)(3) of the Internal Revenue Code that works to protect the natural environment and communities of the South Carolina coastal plain.

Conservation Law Foundation is a not-for-profit corporation organized under the laws of the Commonwealth of Massachusetts that uses law, science, policy, and the business market to find pragmatic, innovative solutions to New England’s toughest environmental problems.

Georgia ForestWatch is a nonprofit organization organized under the laws of the State of Georgia and incorporated under Section 501(c)(3) of the Internal Revenue Code that works to promote healthy forests and watersheds in national forest lands in Georgia.

Natural Resources Council of Maine, a not-for-profit corporation organized and existing under the laws of the  State of Maine, is a membership organization dedicated to preserving the quality of the air, water, forest and other natural resources of the State of Maine, for the benefit of its people and its environment.

Wild Virginia is a nonprofit organization organized under the laws of the State of Virginia and incorporated under Section 501(c)(3) of the Internal Revenue Code. Wild Virginia works to preserve wild forest ecosystems in Virginia’s National Forests.

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