EPA’s long-awaited proposal expected to declare biomass as a carbon neutral fuel under Clean Air Act permits will not be issued until after the Nov. 3 election in part to avoid undercutting the agency’s defense of its Affordable Clean Energy (ACE) rule power plant climate rule, sources say.
Oral argument in the ACE case, American Lung Association (ALA), et al. v. EPA, et al., are scheduled for Oct. 8 before the U.S. Court of Appeals for the District of Columbia Circuit. There, the Department of Justice (DOJ) will argue on EPA’s behalf that power plants cannot use biomass co-firing to comply with ACE because it “does not reduce [carbon dioxide] emissions at the source -- it increases them,” according to its June merits brief.
The draft biomass proposal, which was sent to the White House Office of Management & Budget for interagency review in February, has become delayed over DOJ concerns that it conflicts with DOJ’s legal defense of ACE, which heavily relies on the use of source-specific controls.
In contrast, the biomass rule is expected to say biomass is carbon neutral because forest regrowth offsets emissions at the stack of biomass power plants.
The draft proposal remains under interagency review, an EPA spokeswoman tells Inside EPA Sept. 2. The agency declined to respond to questions about the timing of its release.
Sources warned earlier this summer that if DOJ’s concerns could not be worked out during the review, the matter would be elevated to EPA Administrator Andrew Wheeler and Attorney General William Barr for resolution.
It is unclear if the issue was elevated, but it appears that DOJ has agreed to allow the proposal to go forward provided it is issued after oral arguments in ALA, several sources say.
“I love the fact that it’s past the oral arguments,” says one source who opposes the biomass rulemaking. This source suggests that the administration might believe releasing the plan at that point, “if it is somehow contradictory of the position taken in ACE, . . . won’t be so damaging to their arguments.”
However, it is also possible that critics of the ACE rule could cite the biomass proposal in post-argument letters to the D.C. Circuit raising supplemental issues the court should consider.
It remains unclear if the delay addresses DOJ’s concerns or if EPA is simply buying more time to resolve the problems. The agency has not provided a reason for the later fall target, sources note.
Additionally, when the proposal is released, it is expected to seek comment on the carbon neutrality of crop residues but will stop short of proposing to include such material in the rule, which is limited to woody biomass, another source says.
This will allow groups such as the Biogenic CO2 Coalition, which has long been pressing EPA to designate crop residues as carbon neutral, to submit comments on the proposal and “get the ball rolling” for a separate future rule, the source says.
Dropped ANPR
Further, several sources say EPA briefly indicated it was considering issuing an advance notice of proposed rulemaking (ANPR) for both woody biomass and crops, rather than a formal proposed rule, and that the ANPR could have been issued soon after Labor Day.
However, that effort was short-lived and quietly dropped “without fanfare,” a third source says.
EPA is now telling stakeholders that it is aiming to issue a proposed rule sometime after the Nov. 3 general election, these sources note.
The second source calls this “another frustrating delay” and notes the rule is “still tied up with the ACE rule,” with no clarity on the administration’s internal politics or whether the issue was elevated to the agency heads.
The source adds that there is bipartisan support on the agricultural crop residue issue. If Democratic presidential candidate Joe Biden defeats President Donald Trump, proponents had been hoping that a proposal would already be in place so the new administration “might consider it an easy slam dunk, where most of the work has already been done.”
Now, it appears the best case for such supporters is they can submit comments on the science of crop residues into the administrative record of a woody biomass proposal. That timeline is “a little tougher.”
Meanwhile, backers of the woody biomass rule are not pleased with the delay, with the American Forest & Paper Association calling it “disappointing.”
The third source says the post-Election Day date “sounds about right. At this point it is unlikely a rule will come out before the election. It is getting too late.”
This source also questions the rationale of issuing an ANPR after earlier announcing the development of a proposed rule. “I can’t think of one,” the source says.
The second source says the ANPR idea “had to do with ACE and trying to find ways around” the DOJ conflict, but is unsure why EPA dropped it, noting it is late in the rulemaking process.
Meanwhile an environmentalist says the ANPR and the delayed proposal date are “all politics, at this point,” and represent EPA’s effort not to anger voters in major agricultural states such as Iowa and Minnesota that observers suggest are in play in the election.
“There is no science, no policy reason behind it,” the source says. “In the political calculus if the proposal is delayed, they will not have to worry” that a woody biomass proposal would anger farm states, and instead will be able to wait to see “what happens at the beginning of November.”
While it may seem unlikely that the issue is enough to influence the outcome of the election in a state, the source says in the current economic crisis and with the loss of agricultural exports to China, “they want new markets. And biomass could play a big role in creating one.”
Biomass proponents from big forest states such as Georgia and North Carolina -- also seen as potentially competitive in the presidential contest -- have made similar arguments for why the proposal should have already been issued. -- Dawn Reeves (dreeves@iwpnews.com)
