Legalectric

In a Sierra Club air permit challenge, the Environmental Appeals Board has ruled that the EPA must address CO2, and it remanded “the permit to the Region for it to reconsider whether to impose a CO2 BACT limit and to develop an adequate record for its decision.” This decision should apply to air permits for facilities discharging CO2, pretty much everything, eh?

IN RE DESERET POWER ELECTRIC COOPERATIVE (Bonanza Decision)

Here’s a snippet about alternatives, because this is what the EPA Comments are very concerned about in the Mesaba case:

The statutory section Sierra Club relies upon, CAA section 165(a)(2), does not require the permit issuer to independently raise and consider alternatives that the public did not identify during the public comment period. Here, Sierra Club did not identify during the public comment period the alternatives it raises in its petition.

So Sierra’s alternatives argument got 86’d (p. 6). But here’s some good stuff:

Although the Supreme Court determined that greenhouse gases, 2 such as CO , are “air pollutants” under the CAA, the Massachusetts 2 decision did not address whether CO is a pollutant “subject to regulation” under the Clean Air Act. Massachusetts v. EPA, 549 U.S. 497, slip op. at 29-30 (2007); In re Christian County Generation, LLC, PSD Appeal No. 07-01, slip op. at 7 n.12 (EAB Jan. 28, 2008), 13 E.A.D. at ___. The Region maintains that it does not now have the authority to impose a CO BACT limit because “EPA has historically interpreted the term ‘subject to regulation under the Act’ to describe pollutants that are presently subject to a statutory or regulatory provision that requires actual control of emissions of that pollutant.” U.S. EPA Region 8, Response to Public Comments (Permit No. PSD-OU-0002-04.00) at 5-6 (Aug. 30, 2007) (“Resp. to Comments”). We hold that this conclusion is clearly erroneous because the Region’s permitting authority is not constrained in this manner by an authoritative historical Agency interpretation.

But then they wiggle a bit and then clarify that they’re just sending it back:

By our holding today, we do not conclude that the CAA (or an 2 historical Agency interpretation) requires the Region to impose a CO BACT limit. Instead, we conclude that the record does not support the 2 Region’s proffered reason for not imposing a CO BACT limit – that 2 although EPA initially could have interpreted the CAA to require a CO BACT limit, the Region no longer can do so because of an historical Agency interpretation. Accordingly, we remand the Permit to the Region 2 for it to reconsider whether or not to impose a CO BACT limit and to develop an adequate record for its decision.

The timing is good, with Pres. Obama about to walk in the door. But what will Bush do in the remaining time?

AAAAAAAAAAAAAAAAAAAAAAAGH!