Environmental Permitting, Special Topics in Environmental Management

9th Circuit Upholds EPA’s Biomass PSD Permit

In a case that set several precedents, a panel of the U.S. Court of Appeals for the 9th Circuit denied an appeal from environmental groups seeking to have the court review a final decision by the EPA to grant a Prevention of Significant Deterioration (PSD) permit for a new biomass-burning power plant planned by Sierra Pacific in Anderson, California. According to the petitioners—Helping Hand Tools and Center for Biological Diversity—in analyzing the permit application from Sierra Pacific, the EPA decided to consider the burning of biomass as a best available control technology (BACT) to control greenhouse gas (GHG) emissions from the burning of biomass.

“The EPA’s decision makes no sense,” said an attorney for the Center for Biological Diversity when the challenge was first filed with the 9th Circuit. “You can’t control pollution from burning trees by burning trees, any more than you can control the pollution from burning coal by burning coal.”

EPA’s position was that that the burning of biomass is considered a “baseline” in the BACT analysis to which other control technologies are compared.

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