EPA Delay on Greenhouse Gas Biofuel Rules Tossed by Court

A decision by the U.S. Environmental Protection Agency to delay for three years making rules to curb carbon dioxide emissions from biofuels was thrown out by the U.S. Court of Appeals in Washington.

The EPA failed to spell out what the delay, known as the deferral rule, would accomplish, according to a 2-1 ruling by a three-judge panel.

“We simply have no idea what EPA believes constitutes ‘full compliance’ with the statute,” U.S. Circuit Judge David Tatel wrote for the majority. “In other words, the deferral rule is one step towards ... what?”

In a concurring opinion, Judge Brett Kavanaugh said the EPA was improperly treating carbon dioxide emissions from ethanol and other biofuels differently from other sources of the gas.

“EPA simply lacks statutory authority to distinguish biogenic carbon dioxide from other forms of carbon dioxide” for regulatory purposes, Kavanaugh wrote.

Judge Karen LeCraft Henderson dissented, writing that “I believe EPA can -- and should -- defer regulation until it has the time it says it needs to study and resolve the issue it is charged with regulating.”

Carbon dioxide is a greenhouse gas, which trap heat in the atmosphere.

David Bloomgren, an EPA spokesman, didn’t immediately respond to telephone and e-mail requests for comment.

Forest Association

The EPA’s position was backed by the American Forest and Paper Association, which intervened in the case in support of the agency’s postponement of regulation.

“The court’s ruling creates great uncertainty about the permitting requirements for biomass energy and underscores the need for EPA to finalize its rulemaking on the treatment of biogenic emissions,” Donna Harman, chief executive officer of the Washington-base trade group, said in an e-mailed statement.

Bill Snape, senior counsel for the Center for Biological Diversity, which challenged the EPA delay, said the ruling undoes an unwarranted concession by the Obama administration to lobbying by timber and paper groups.

“EPA cannot just carve out exemptions for powerful industries when they craft regulations for greenhouse gas,” Snape said in a telephone interview.

The case is Center for Biological Diversity v. U.S. Environmental Protection Agency, 11-1101, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Andrew Zajac in Washington at azajac@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.

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