Recently, the Ninth Circuit upheld the Environmental Protection Agency’s (“EPA”) decision to issue an air permit under the Clean Air Act for the construction of a biomass cogeneration facility at a lumber mill, concluding that EPA had acted reasonably when it determined that the applicant should not be required to consider solar power or a greater use of natural gas as part of the Greenhouse Gas Best Available Control Technology (“GHG BACT”) review for the permit.  

In Helping Hand Tools v. United States EPA, 2016 U.S. App. LEXIS 16262 (2016), Center for Biological Diversity and other environmental groups brought a claim against an EPA-issued permit under the Prevention of Significant Deterioration (“PSD”) program of the Clean Air Act to permit the construction of a cogeneration facility at a lumber mill. Under PSD, sources are required to install BACT to reduce air emissions. In this case, the owner of a lumber mill proposed as part of its application to use biomass from the mill’s wood byproduct, as well as other readily available sources of agricultural and wood wastes, as the fuel for the cogeneration facility. The petitioners claimed that solar power or mixed natural gas should instead be implemented to reduce GHG emissions as part of the BACT analysis.

 The 9th Circuit rejected this claim by holding that, although EPA must consider all available control technologies under BACT, the Agency does not have to consider alternatives that would “redefine the source.” This consideration hinges on the description of the source in the PSD permit application, which articulates the “proposed facility’s end, object, aim or purpose.” The Agency will consider the elements inherent to an applicant’s purpose, and which elements can be changed to reduce pollutant emissions without disrupting the applicant’s basic business purpose. The 9th Circuit reasoned the use of natural gas or solar panels would “redefine the source” by disrupting the business purpose of the cogeneration facility, which here included the utilization of locally-sourced fuel. 

 The 9th Circuit’s decision in Helping Hand Tools provides an important reaffirmation of the limits of the PSD BACT analysis, and represents the first appellate court application of this principle in the GHG context.  A copy of the decision can be found here.  For more information or questions regarding the implications of this case or the regulation of GHGs under the Clean Air Act more generally, please contact Randy Brogdon, Margaret Campbell, or Angela Levin.