ORAL ARGUMENT NOT YET SCHEDULED

No. 11-1101 (Consolidated with 11-1285, 11-1328, and 11-1336) 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CENTER FOR BIOLOGICAL DIVERSITY, et al., 

 Petitioners, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., 

Respondents.

Petition for Review of Final Action of the U.S. Environmental Protection Agency 

REPLY BRIEF OF PETITIONERS 

Ann Brewster Weeks 

Clean Air Task Force 

18 Tremont Street, Suite 530 

Boston, MA 02108 

Phone: (617) 624-0234 ext. 156 

Counsel for Conservation Law 

Foundation and Natural Resources 

Council of Maine 

 

Frank Rambo 

Morgan Butler 

Southern Environmental Law Center 

201 West Main Street, Suite 14 

Charlottesville, VA 22902 

Phone: (434) 977-4090 

Counsel for Coastal Conservation 

League, Dogwood Alliance, Georgia 

ForestWatch, and Wild Virginia 

Meleah Geertsma

Natural Resources Defense Council 

2 N. Riverside Plaza, Suite 2250 

Chicago, IL 60606 

Phone: (312) 651-7904 

Counsel for Natural Resources Defense 

Council

Kevin P. Bundy 

Vera P. Pardee 

Brendan Cummings 

Center for Biological Diversity 

351 California Street, Suite 600 

San Francisco, CA 94104 

Phone: (415) 436-9682 ext. 313 

Counsel for Center for Biological 

Diversity 

David Doniger 

Natural Resources Defense Council 

1152 15th Street NW, Suite 300 

Washington, D.C. 20005 

Phone: (202) 289-2403 

Nathaniel S.W. Lawrence 

Natural Resources Defense Council 

3723 Holiday Drive, SE 

Olympia, WA 98501 

Phone: (360) 534-9900 

Counsel for Natural Resources Defense 

Council 

DATED: July 10, 2012

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i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ................................................................................... iii

GLOSSARY OF RULEMAKINGS, ACRONYMS, AND ABBREVIATIONS .. vii

STATUTES AND REGULATIONS..................................................................... viii

INTRODUCTION .....................................................................................................1

SUMMARY OF ARGUMENT .................................................................................2

ARGUMENT .............................................................................................................4

I. THIS COURT HAS JURISDICTION TO REVIEW THE EXEMPTION. ...4

II. THE CLEAN AIR ACT PRECLUDES CONSIDERATION OF EXTRARECORD EVIDENCE. ...................................................................................6

III.EPA HAS FAILED TO JUSTIFY ITS EXEMPTION UNDER THE 

CLEAN AIR ACT OR ANY DOCTRINE ALLOWING DEVIATIONS 

FROM THE STATUTE. .................................................................................7

A. The Clean Air Act Does Not Leave the Timing of PSD Applicability 

to EPA’s Discretion...............................................................................7

B. EPA Has Failed to Demonstrate the Administrative Impossibility of 

Requiring Large Biogenic CO2 Sources to Obtain Permits. .................9

1. EPA’s Assertions of Administrative Need for the Exemption Lack 

Record Support..............................................................................9

2. EPA’s Post Hoc Search for Statutory Authority Is Unavailing...14

C. EPA Has Failed to Justify the Exemption Under the De Minimis or 

Absurd Results Doctrines....................................................................16

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1. EPA Disclaims Reliance on the De Minimis Doctrine and 

Concedes it Lacks a Supporting Record for the Exemption. ......16

2. EPA’s Post Hoc Reliance on Absurd Results Fails. ....................18

D. EPA Has Failed to Justify the Exemption Under the “One Step at a 

Time” Doctrine....................................................................................21

1. EPA Misconstrues the Reach of the “One-Step-at-a-Time” 

Doctrine. ......................................................................................21

2. EPA Cannot Justify the Biomass Exemption Under the Catch-All 

General Rulemaking Authority Found in Section 301................23

3. No “New Situation” or Unforeseen Condition Supports EPA’s 

Biomass Exemption.....................................................................24

IV. THE ARGUMENTS OF AMICUS CURIAE NACWA CANNOT 

SALVAGE EPA’S UNLAWFUL EXEMPTION.........................................25

V. THE COURT SHOULD VACATE THE BIOMASS EXEMPTION. .........27

CONCLUSION........................................................................................................28

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TABLE OF AUTHORITIES 

CASES

*Alabama Power Co. v. Costle, 

636 F.2d 323 (D.C. Cir. 1979).............................................................. 1, 3, 14 

Alaska DEC v. EPA, 

540 U.S. 461 (2004)................................................................................ 23, 24 

Am. Elec. Power Co. v. Conn., 

131 S. Ct. 2527 (2011).....................................................................................5 

Am. Petroleum Inst. v. Costle, 

 609 F.2d 20 (D.C. Cir. 1979)..........................................................................6 

American Trucking Ass’ns v. United States, 

344 U.S. 298 (1953).......................................................................................25 

Appalachian Power Co. v. EPA, 

135 F.3d 791 (D.C. Cir. 1998).......................................................................26 

Bennett v. Spear, 

520 U.S. 154 (1997).........................................................................................4 

Bluewater Network v. EPA, 

372 F.3d 404 (D.C. Cir. 2004).................................................................. 1, 14 

Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of America, 

836 F.2d 599 (D.C. Cir. 1988).......................................................................25 

Citizens to Save Spencer County v. EPA, 

600 F.2d 844 (D.C. Cir. 1979)................................................................ 23, 24 

City of Las Vegas v. Lujan, 

891 F.2d 927 (D.C. Cir. 1989).......................................................................22 

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*Coal. for Responsible Regulation, Inc. v. EPA, 

No. 09-1322 et al. (D.C. Cir. June 26, 2012) ..................... 1, 4, 7, 8, 9, 14, 22 

Envtl. Def. Fund v. EPA, 

898 F.2d 183, 190 (D.C. Cir. 1990)...............................................................28 

Envtl. Def. Fund v. EPA, 

636 F.2d 1267 (D.C. Cir. 1980).............................................................. 10, 13 

FTC v. Standard Oil Co., 

449 U.S. 232 (1980).........................................................................................5 

Grand Canyon Air Tour Coal. v. FAA, 

154 F.3d 455, 476-478 (D.C. Cir. 1998) .......................................................22 

Hazardous Waste Treatment Council v. EPA, 

861 F.2d 277 (D.C. Cir. 1988).......................................................................21 

Honeywell Int’l Inc. v. EPA, 

374 F.3d 1363 (D.C. Cir. 2004).....................................................................28 

Indep. Bankers Ass’n. v. Marine Midland Bank, 

757 F.2d 453 (2d Cir. 1985) ..........................................................................25 

Manin v. Nat’l Transp. Safety Bd., 

627 F.3d 1239 (D.C. Cir. 2011).....................................................................25 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983).........................................................................................19 

*Mova Pharm. Corp. v. Shalala, 

140 F.3d 1060 (D.C. Cir. 1998).......................................................... 3, 12, 20 

Nat’l Ass’n of Broadcasters v. FCC, 

740 F.2d 1190 (D.C. Cir. 1984).....................................................................22 

Nat’l Lime Ass’n v. EPA, 

233 F.3d 625 (D.C. Cir. 2000).......................................................................28 

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Nat’l Park Hospitality Ass’n v. Dept. of Interior, 

538 U.S. 803 (2003).........................................................................................5 

New Jersey v. EPA, 

517 F.3d 574 (D.C. Cir. 2008).......................................................................27 

New York v. EPA, 

443 F.3d 880 (D.C. Cir. 2006).......................................................................18 

New York v. EPA, 

413 F.3d 3 (D.C. Cir. 2005)...........................................................................15 

North Carolina v. EPA, 

550 F.3d 1176 (D.C. Cir. 2008).....................................................................28 

Northeast Md. Waste Disposal Auth. v. EPA, 

358 F.3d 936 (D.C. Cir. 2004)................................................................ 18, 19 

NRDC v. EPA, 

571 F.3d 1245 (D.C. Cir. 2008).....................................................................27 

Portland Cement Ass’n v. EPA, 

665 F.3d 177 (D.C. Cir. 2011).........................................................................5 

Sierra Club v. EPA, 

551 F.3d 1019 (D.C. Cir. 2008).....................................................................27 

Sierra Club v. EPA, 

719 F.2d 436 (D.C. Cir. 1983).................................................................. 9, 12 

Sierra Club v. Thomas, 

828 F.2d 783 (D.C. Cir. 1987).........................................................................8 

Tex. Indep. Producers and Royalty Owners Ass’n v. EPA, 

413 F.3d 479 (5th Cir. 2005) ...........................................................................5 

United States v. Haggar Apparel Co., 

 526 U.S. 380, 392-93 (1999) ........................................................................24 

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STATUTES 

42 U.S.C. § 7411(a)(4).............................................................................................15 

42 U.S.C. § 7475(a) ...................................................................................................4 

42 U.S.C. § 7479(1) .................................................................................................15 

42 U.S.C. § 7479(2)(C)..............................................................................................4 

42 U.S.C. § 7601(a)(1).............................................................................................23 

42 U.S.C. § 7607(d)(3)(C) .......................................................................................18 

42 U.S.C. § 7607(d)(6)(A)(i) ........................................................................ 6, 18, 25 

42 U.S.C. § 7607(d)(6)(C) .................................................................................. 6, 25 

42 U.S.C. § 7607(d)(7)(A).................................................................................. 6, 25 

FEDERAL REGISTER

74 Fed. Reg. 66,496 ...................................................................................................9 

75 Fed. Reg. 31,514 .................................................................................... 10, 12, 19 

76 Fed. Reg. 15,249 ............................................................................................ 9, 18 

76 Fed. Reg. 43,490 .................................................................................. 4, 7, 18, 19 

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GLOSSARY OF RULEMAKINGS, ACRONYMS, AND ABBREVIATIONS 

Rulemakings: 

“Biomass Exemption” or “Exemption”: Deferral for CO2 Emissions from 

Bioenergy and Other Biogenic Sources Under the Prevention of Significant 

Deterioration (PSD) and Title V Programs; Final Rule, 76 Fed. Reg. 43,490 (July 

20, 2011). 

“Proposed Biomass Exemption” or “Proposed Exemption”: Deferral for CO2

Emissions from Bioenergy and Other Biogenic Sources Under the Prevention of 

Significant Deterioration (PSD) and Title V Programs; Proposed Rule, 76 Fed. 

Reg. 15,249 (March 21, 2011). 

“Tailoring Rule”: Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule; Final Rule, 75 Fed. Reg. 31,514 (June 3, 2010). 

“Endangerment Finding”: Endangerment and Cause or Contribute Findings for 

Greenhouse Gases Under Section 202(a) of the Clean Air Act; Final Rule, 74 Fed. 

Reg. 66,496 (Dec. 15, 2009). 

Acronyms and Abbreviations: 

BACT Best Available Control Technology 

CAA Clean Air Act 

CO2 Carbon Dioxide 

CRR Coalition for Responsible Regulation 

EPA Environmental Protection Agency 

NACWA National Association of Clean Water Agencies 

NAFO National Alliance of Forest Owners 

PSD Prevention of Significant Deterioration 

RTC Response to Comments 

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viii 

STATUTES AND REGULATIONS 

All applicable statutes and regulations are contained in the Opening Brief of 

Petitioners (Corrected), the Brief of Respondents, and the Brief of Intervenors in 

Support of Respondents. 

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INTRODUCTION 

EPA has failed to meet the heavy burden required to justify the Biomass 

Exemption’s deviation from the Clean Air Act (“CAA” or “Act”). EPA here 

affirmatively exempted sources from a self-executing statutory requirement. See

Coal. for Responsible Regulation, Inc. v. EPA, No. 09-1322 et al., slip op. at 53-54, 

77 (D.C. Cir. June 26, 2012) (“CRR”) (holding that CO2 became “subject to 

regulation” for prevention of significant deterioration permitting purposes “by 

automatic operation of the statute” when EPA’s regulation of CO2 emissions from 

passenger cars and trucks took effect in January 2011). This deviation from 

statutory command requires a compelling justification. See Alabama Power Co. v. 

Costle, 636 F.2d 323, 359 (D.C. Cir. 1979). EPA failed to provide one here. 

Contrary to EPA’s and Intervenors’ assertion, this is not a case where 

regulations are needed to define and implement a general statutory instruction and 

where this Court has sometimes allowed a measure of discretion in the staging of 

agency actions. Cf., e.g., Bluewater Network v. EPA, 372 F.3d 404, 412 (D.C. Cir. 

2004). EPA’s latitude to exempt sources from a self-executing statutory 

requirement is far more limited (e.g., to conditions of administrative impossibility), 

and requires a rigorous demonstration that is absent from the Exemption 

rulemaking and its record. Nor can EPA rescue its Exemption by resort to post hoc

rationales advanced for the first time in its brief. The Exemption must be vacated. 

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SUMMARY OF ARGUMENT 

EPA and Intervenors do not contest this Court’s jurisdiction to review the 

Exemption, which is inarguably a final rulemaking with permanent, adverse 

consequences. The Exemption permanently insulates new and modified major 

sources of biogenic CO2 that commence construction during the three-year 

exemption period from otherwise applicable permitting and pollution control 

requirements. These sources may operate for decades without installing best 

available control technology (“BACT”) and meeting other requirements of the 

prevention of significant deterioration (“PSD”) and Title V permitting processes. 

These sources can escape permitting permanently even if EPA allows the 

Exemption to expire at the end of three years. The Exemption is final and ripe for 

review. 

EPA and Intervenors improperly rely on extra-record evidence and post hoc

rationalizations. Their arguments also fail on the merits. PSD and Title V 

applicability was triggered “by automatic operation of the statute” when motor 

vehicle emission standards for greenhouses gases took effect. CRR, slip op. at 54, 

77. The self-executing character of these requirements fatally undercuts EPA’s 

post hoc plea for broad discretion not to “regulate first” while it examines certain 

technical issues. Because the commencement of PSD permitting requirements is 

automatic, the statute simply does not give EPA the discretion it claims. Rather, 

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EPA must shoulder the much heavier burden of producing a compelling 

justification for the Exemption—a burden the agency failed to meet here. CRR 

also contradicts Intervenors’ argument that the Exemption was merely a 

reconsideration of EPA’s supposed “decision” to regulate biogenic CO2 in the 

Tailoring Rule. The decision to regulate was made by Congress in the Clean Air 

Act, not by EPA. 

The Exemption therefore falls unless EPA meets the heavy burden necessary 

to justify deviating from the statute—a burden requiring EPA to depart from the 

statute no further than necessary to effectuate congressional intent and to move as 

quickly as possible toward full compliance. See generally Alabama Power, 636 

F.2d at 359-61; Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1068 (D.C. Cir. 

1998). Agreeing at least tacitly, EPA invokes doctrines allowing limited deviation 

from the statute, but it cannot prevail under any of the theories advanced. Nothing 

in the record shows that permitting biogenic CO2 sources that emit more than the 

Tailoring Rule thresholds is administratively impossible. Moreover, EPA 

disavows reliance on a de minimis rationale and concedes it has no record to 

support such a theory. The agency’s post hoc invocation of “absurd results,” 

actually nothing more than the de minimis rationale going by another name, 

similarly lacks support. Finally, the “one-step-at-a-time” doctrine does not 

independently give EPA discretion to deviate from the statute’s self-executing 

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permitting requirements. The Exemption unjustifiedly contravenes the Clean Air 

Act and must be vacated. 

ARGUMENT 

I. THIS COURT HAS JURISDICTION TO REVIEW THE 

EXEMPTION. 

 

The Court has jurisdiction to review the Exemption. Neither EPA nor 

Intervenors dispute this; rather, they argue only that the Court should not reach the 

merits of any future “permanent exemption.” Brief of Respondents (“EPA Br.”) at 

35-36; Brief of Intervenors in Support of Respondents (“Int. Br.”) at 16-21. 

Petitioners here challenge only EPA’s three-year Exemption, not any hypothetical 

future exemption. 

The Exemption is final and reviewable. It permanently excludes the covered 

biogenic CO2 sources (those with emissions exceeding Tailoring Rule thresholds) 

that are constructed or modified during the three-year exemption period from 

otherwise applicable PSD and Title V permitting requirements, including BACT. 

76 Fed. Reg. 43,490, 43,492/3 (Jul. 20, 2011) (JA __); see Bennett v. Spear, 520 

U.S. 154, 177-78 (1997). As CRR confirms, those permitting requirements 

otherwise would apply to these sources by operation of the statute. CRR, slip op. 

at 53-54, 77. Because PSD requirements apply only to new and modified sources, 

see sections 165(a), 169(2)(C); 42 U.S.C. §§ 7475(a), 7479(2)(C), facilities built 

during the exemption period may operate for decades without obtaining permits 

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and meeting pollution control obligations.1 Exempted facilities—which will emit 

higher amounts of pollution as a result—are being permitted and constructed now. 

Opening Brief of Petitioners (“Pet. Br.”) at 25-29. 

The cases cited by Intervenors on finality (Int. Br. at 18-19) are therefore 

inapposite. See, e.g., Am. Elec. Power Co. v. Conn., 131 S. Ct. 2527, 2539-40 

(2011) (discussing Congress’ choice to “entrust[ ] complex balancing to EPA in 

the first instance” in setting standards of performance under section 111); Portland 

Cement Ass’n v. EPA, 665 F.3d 177 (D.C. Cir. 2011) (finding no final action where 

EPA was in the process of developing such standards of performance). Nor does 

this case raise prudential ripeness questions, as Intervenors suggest. Once again, 

the cases they cite are inapplicable. See, e.g., Nat’l Park Hospitality Ass’n v. Dept. 

of Interior, 538 U.S. 803, 812 (2003) (declining to review rule before it had been 

applied to a concrete situation, so as to avoid the court becoming entangled in 

abstract disagreements over policy); FTC v. Standard Oil Co., 449 U.S. 232, 241 

(1980) (declining to review the agency’s issuance of a complaint at an interim step 

in administrative adjudication); Tex. Indep. Producers and Royalty Owners Ass’n 

v. EPA, 413 F.3d 479, 483 (5th Cir. 2005) (declining to review, at the behest of 

 

1

 Such a source could become subject to permitting and BACT at some later time if 

it undergoes a major modification, i.e., an emissions-increasing physical or 

operational change. But the possibility of a future modification is speculative and 

even then BACT may only reach the modification and any other affected part of 

the facility. Thus review at that point is no substitute for the front-end permitting 

of the entire facility that CRR recognizes is required by the Act. 

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industry petitioners, a rule that by its terms excused them from complying until 

later). The Exemption is final, having effect, and ripe for review. 

II. THE CLEAN AIR ACT PRECLUDES CONSIDERATION OF 

EXTRA-RECORD EVIDENCE. 

EPA and Intervenors rely extensively on documents that are not in the 

administrative record and that were created well after promulgation of the 

Exemption. See EPA Br. at 21-22, 28-32, 51; Int. Br. at 3, 10-14 (citing inter alia 

a post hoc “Synthesis,” an EPA report proposing a framework for biogenic carbon 

accounting, a Science Advisory Board report, and EPA’s Tailoring Rule “Step 3” 

proposed rulemaking). Amicus curiae National Association of Clean Water 

Agencies (“NACWA”) also cites extra-record materials. But under the CAA, 

EPA’s action must stand or fall on the docket before the agency at the time of the 

rule’s promulgation. See § 307(d)(6)(C), (7)(A); 42 U.S.C. § 7607(d)(6)(C); 

(7)(A); Am. Petroleum Inst. v. Costle, 609 F.2d 20, 23-24 (D.C. Cir. 1979). These 

extra-record materials and the arguments relying on them cannot furnish grounds 

for upholding the Exemption. 

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III. EPA HAS FAILED TO JUSTIFY ITS EXEMPTION UNDER THE 

CLEAN AIR ACT OR ANY DOCTRINE ALLOWING DEVIATIONS 

FROM THE STATUTE. 

A. The Clean Air Act Does Not Leave the Timing of PSD Applicability to 

EPA’s Discretion. 

EPA contends it had authority to decide not to “regulate first” pending 

scientific review of biogenic carbon accounting principles. See EPA Br. at 5-6. 

The statute, however, does not leave the timing of regulation to EPA. This Court 

in CRR confirmed that PSD permitting requirements for CO2 took effect 

automatically when CO2 became “subject to regulation.” CRR, slip op. at 16, 54 

(finding EPA’s construction “statutorily compelled” and “unambiguously 

correct”). EPA cannot prevail by claiming it has discretion that this Court has held 

the statute does not provide. 

CRR also fatally undercuts Intervenors’ arguments. Intervenors urge that the 

Exemption reverses a supposed EPA “decision” to regulate biogenic CO2 in the 

Tailoring Rule, thereby “restor[ing] the pre-Tailoring Rule status quo” and 

allowing a “reasonable” delay in regulation so EPA can examine the science.2

 Int. 

 

2

 Intervenors spend the bulk of their brief attacking EPA’s supposed “reversal of 

course” in regulating biogenic CO2 under the Tailoring Rule, insisting that 

reconsideration of that aspect of the Tailoring Rule (which EPA granted) was 

compelled, and essentially rearguing their request for an administrative stay of the 

Tailoring Rule (which EPA denied). See Int. Br. at 22-39. These arguments rest 

largely on a misinterpretation of EPA’s references to the U.S. Greenhouse Gas 

Inventory; as EPA has explained, such references were never intended to “exempt” 

biogenic CO2 from regulation. See, e.g., 76 Fed. Reg. at 43,494/3-95/1 (JA __-__). 

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Br. at 26-27. But EPA did not decide to regulate CO2, biogenic or otherwise, in the 

Tailoring Rule. Congress made that decision in a self-executing statute. Nor did 

the “pre-Tailoring Rule status quo” exempt biogenic CO2. Rather, the statute itself 

automatically required PSD permits for all CO2 emissions above the statutory 

thresholds. CRR, slip op. at 77. EPA accurately explained this in denying 

NAFO’s request for an administrative stay of the Tailoring Rule. EPA-HQ-OAR2011-0083-0008 at 2 (JA __) (“As no exemption for emissions of CO2 from 

biomass existed prior to the final [Tailoring Rule], an administrative stay would 

not result in an exemption from the requirements of PSD and Title V.”). 

Contrary to Intervenors’ suggestion (Int. Br. at 28), Petitioners do not allege 

that EPA has unreasonably delayed the start of regulation in the absence of a clear 

statutory duty to act by a certain date. Cf., e.g., Sierra Club v. Thomas, 828 F.2d 

783, 798 (D.C. Cir. 1987) (declining to hold delay in regulation unreasonable 

where statute did not instruct EPA to regulate or “require EPA even to consider 

[the] question”). As CRR confirms, the permitting requirements took hold 

automatically. Accordingly, unlike the situation in Sierra Club v. Thomas, EPA 

has a clear statutory duty here, and lacks discretion to delay compliance. 

 

In the unlikely event that any of these arguments survives CRR, it does not belong 

here, but rather in the Tailoring Rule challenge by Intervenors NAFO and 

American Forest & Paper Association (No. 10-1209; currently held in abeyance). 

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In a similar vein, Intervenors incorrectly assert that EPA “excluded biomass 

emissions” from its greenhouse gas Endangerment Finding. Int. Br. at 4. EPA did 

no such thing; the Endangerment Finding treated all six well-mixed greenhouse 

gases, including CO2, as a single pollutant notwithstanding their origins in 

“different processes” that may “require different control strategies.” 74 Fed. Reg. 

66,496, 66,541/3 (JA __). It did not even mention “biomass emissions.” 

Moreover, as EPA acknowledged in the Proposed Biomass Exemption, biogenic 

and fossil CO2 have exactly the same heat-trapping effect in the atmosphere, 76 

Fed. Reg. 15,249, 15,254/1 (JA __), and thus share the characteristics that cause 

endangerment. This Court has confirmed Congress’s intent to cover any air 

pollutant contributing to global warming under the PSD program. See CRR, slip 

op. at 57-59. Intervenors’ misreading of the Endangerment Finding, like their 

misunderstanding of the statute, does nothing to save the Exemption. 

B. EPA Has Failed to Demonstrate the Administrative Impossibility of 

Requiring Large Biogenic CO2 Sources to Obtain Permits. 

1. EPA’s Assertions of Administrative Need for the Exemption 

Lack Record Support.

EPA fails to defend the Biomass Exemption on administrative necessity 

grounds. EPA Br. at 40-56. An administrative necessity exemption must be 

backed by a compelling demonstration that statutory compliance is “impossible,” 

not merely difficult. Sierra Club v. EPA, 719 F.2d 436, 462-63 (D.C. Cir. 1983); 

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Envtl. Def. Fund v. EPA, 636 F.2d 1267, 1283 (D.C. Cir. 1980). Here, EPA utterly 

fails to show that issuing permits to the modest number of large biogenic CO2

sources would be impossible. 

EPA attempts to portray the Exemption as part-and-parcel of the Tailoring 

Rule, but the Exemption is a separate final action, taken in a separate rulemaking, 

and is based on a different rationale. The Exemption is premised on the asserted 

difficulty of permitting sources of a particular kind, in a specific industrial 

category, while the Tailoring Rule was based solely on the administrative 

impossibility, at least for an initial period, of permitting the vast number of 

facilities emitting more than the statutory thresholds irrespective of source type. 

EPA expressly decided in the Tailoring Rule “to address the need for tailoring 

through a uniform threshold-based approach, rather than through a collection of 

various specific exclusions.” 75 Fed. Reg. 31,514, 31,526/3-27/1 (JA __-__); see 

also id. at 31,591/1 (JA __) (noting that EPA had no basis for a threshold-based 

exemption for biogenic CO2 sources and that EPA did not examine “burdens with 

respect to specific categories” or “analyze[]the administrative burden of permitting 

projects that specifically involve biogenic CO2 emissions”). 

While EPA is not barred from changing its approach, any new exemption for 

an industrial category must be made on a record that robustly supports that 

exemption—not on a prior record that by the agency’s own assessment did not 

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support it. At a minimum, a record to support this exemption would have to 

specify how many above-the-thresholds biogenic CO2 sources would require 

permits, and compellingly show why permitting that number would be impossible. 

See Pet. Br. at 34-35. The record here contains nothing of the sort. 

What is in the Exemption record undercuts EPA. A number of state 

permitting agencies commented that they expected only a small number of 

biogenic CO2 permit applicants (e.g., “no significant increases or decreases,” “one 

or two” per year, “3 to 5” in power sector over the three-year period), while others 

declined to speculate. 3 No state demonstrated that it could not handle these 

modest numbers. See Pet. Br. at 15-16. 

EPA brushes off the states’ comments by claiming, without any evidence, 

that the states would have said the same thing about any industrial category of 

sources. EPA Br. at 44. This is pure speculation. EPA never asked the states 

about any other category, and EPA’s brief cites no record evidence to demonstrate 

that permitting agencies would be saddled with overwhelmingly burdensome 

numbers of biogenic CO2 sources. 

 

3

 While the number of sources is modest, the burden on persons living near the 

unpermitted biomass plants built during the exemption period will be significant. 

Construction of even one or two plants per year will have harmful effects on 

persons living nearby, in terms of criteria air pollutant emissions that otherwise 

would have been more strictly limited. And these impacts will persist well after 

the three-year exemption period, because the sources that escape permitting will be 

allowed to operate for decades without best available pollution controls. See Pet. 

Br. at 25-29. 

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Even if the record had shown an impossible burden, EPA would still have 

had to adopt the narrowest effective solution. Mova Pharm. Corp. v. Shalala, 140 

F.3d 1060, 1068 (D.C. Cir. 1998) (EPA “may deviate no further from the statute 

than is needed to protect congressional intent.”). There was no need for a broad 

exemption. As EPA found in the Tailoring Rule, “there is flexibility to apply the 

existing regulations and policies regarding BACT in ways that take into account 

their lifecycle effects on GHG concentrations.” 75 Fed. Reg. at 31,591/2 (JA __). 

EPA notes correctly that the statute requires “case-by-case” BACT reviews in 

which the use of “clean fuels” is a specified control measure, and costs and other 

environmental impacts (positive or negative) must be evaluated. EPA Br. at 56 

(quoting § 169(3), 42 U.S.C. § 7479(3)). 

EPA acknowledges that BACT provides an appropriate context for 

considering whether “use of some biofuels may have significant positive 

environmental and energy benefits while others may have significant negative 

impacts.” EPA Br. at 56; see also id. at 4 (distinguishing, e.g., effects of burning 

whole trees that take decades to re-grow and re-absorb CO2 from effects of burning 

farm wastes that displace fossil fuels and would otherwise quickly decay). The 

agency claims this exercise would “further encumber” the permitting process. 

EPA Br. at 56. But showing an “encumbrance” does not demonstrate an 

impossibility. See Sierra Club v. EPA, 719 F.2d at 462-63; Envtl. Def. Fund v. 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 21 of 40
13 

EPA, 636 F.2d at 1283. EPA fails to cite any record evidence, let alone make a 

compelling demonstration, that permitting agencies could not feasibly evaluate the 

relative benefits and impacts of different biomass types in BACT determinations. 

What the record does show is that none of the states expecting permit applications 

claimed that processing them would be impossible. 

EPA repeatedly invokes the risk that requiring biogenic CO2 sources to 

undergo permitting now may counter-productively deter the use of as-yetunspecified beneficial types of biomass. But EPA’s analysis ignores the 

countervailing environmental costs of allowing sources burning forms of biomass 

known to be detrimental to bypass the permitting process altogether. The harms 

produced by an overbroad exemption underscore the need to craft exemptions from 

statutory requirements as narrowly as possible. 

 Finally, EPA and Intervenors seek to avoid EPA’s burden of justifying an 

exemption by mischaracterizing the question as when to start regulating biomass 

sources. See, e.g., EPA Br. at 27 (“the prudent course is to . . . not leap to 

regulation and worry about scientific support later”); Int. Br. at 27-29.4

 As 

discussed supra at 7-8, however, these sources were already regulated by the 

 

4

 EPA has the matter backwards. Its duty under the Clean Air Act is to act in a 

precautionary manner, not to defer action until it has elusive “certainty.” “As we 

have stated before, ‘Awaiting certainty will often allow for only reactive, not 

preventive, regulation.’” CRR, slip op. at 31 (quoting Ethyl Corp. v. EPA, 541 

F.2d 1, 25 (D.C. Cir. 1976)). 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 22 of 40
14 

statute itself. See CRR, slip op. at 53-54, 77. The question posed by the 

Exemption was whether to stop regulating them. While this Court has sometimes 

given agencies leeway on the staging of regulations necessary to initiate sources’ 

emission control obligations under a non-self-executing statutory provision, it is 

another thing entirely to exempt sources from direct, self-executing statutory 

prohibitions that have already been triggered. The latter requires a rigorous 

showing of impossibility that EPA has failed to offer. Compare, e.g., Bluewater 

Network v. EPA, 372 F.3d 404, 412 (D.C. Cir. 2004) (approving two-tiered 

implementation of statute that requires agency implementing regulations), with 

Alabama Power, 636 F.2d at 359 (finding agency’s “burden of justification” is 

“especially heavy” when seeking “approval of a prospective exemption of certain 

categories” from the same PSD provision at issue here “based upon the agency’s 

prediction of the difficulties of undertaking regulation”). 

2. EPA’s Post Hoc Search for Statutory Authority Is Unavailing.

Petitioners demonstrated that EPA has no statutory authority to look far 

beyond a facility’s borders and decades into the future for offsetting CO2

absorption when deciding whether a source needs a PSD permit. Pet. Br. at 40-45. 

In response, EPA purports to find authority in the word “increase.” EPA Br. at 47-

50. Even if this were not a post hoc rationale, as EPA concedes (EPA Br. at 48 

n.9), it would fail for two reasons. 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 23 of 40
15 

First, EPA fails to identify the statutory context. The word “increase” 

appears in the Clean Air Act’s definition of “modification.” § 111(a)(4), 42 U.S.C. 

§ 7411(a)(4). That definition unambiguously refers to “increases [in] the amount 

of any air pollutant emitted by such source.” Id. (emphasis added). Those terms 

cannot be stretched to include CO2 absorption occurring outside the boundaries of 

a “source.” Second, the term “increases” appears only in the definition of 

“modification” and not in section 169(1)’s definition of a “major emitting facility,” 

the term controlling whether a new biogenic CO2 source needs a permit to 

construct. See 42 U.S.C. § 7479(1). Congress therefore left no gap in the Clean 

Air Act from which the agency can leverage authority to consider distant or 

delayed CO2 absorption when determining whether a biomass source has sufficient 

CO2 emissions to be a “major emitting facility” or a “major stationary source,” and 

thus needs a PSD or Title V permit. 

EPA relies on this Court’s holding in New York v. EPA that Congress left 

EPA some discretion concerning the timeframe over which to calculate 

contemporaneous emissions for netting purposes. EPA Br. at 47-48 (citing 413 

F.3d 3, 27 (D.C. Cir. 2005) (“Congress did not specify how to calculate ‘increases’ 

in emissions”)). But Congress did not leave the same discretion over the spatial

dimension; the Clean Air Act directs EPA to calculate the increases “emitted by 

such source.” § 111(a)(4), 42 U.S.C. § 7411(a)(4). Even in the temporal 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 24 of 40
16 

dimension, EPA stretches New York v. EPA beyond the breaking point by asserting 

that the decision provides EPA discretion to counterbalance CO2 emissions with 

CO2 absorption occurring decades later—and with no record support for that 

timeframe, let alone assurance that the regrowth and associated absorption will 

actually occur as assumed.

C. EPA Has Failed to Justify the Exemption Under the De Minimis or Absurd 

Results Doctrines. 

1. EPA Disclaims Reliance on the De Minimis Doctrine and 

Concedes it Lacks a Supporting Record for the Exemption.

Notwithstanding its repetitive reference to de minimis principles throughout 

the proposed and final Exemption preambles, EPA disavows any reliance on the 

doctrine. EPA Br. at 34-36. Acknowledging “the burden of establishing that a [de 

minimis] exemption is warranted,” EPA concedes it has not met this burden here: 

“If and when EPA comes to such a conclusion, it will provide the record to support 

it.” EPA Br. 35 (emphasis in original). In light of EPA’s disavowal of the doctrine 

and its admission that it lacks a supporting record, the Exemption cannot be upheld 

on de minimis grounds.5

 

5

 Only if the Court finds, notwithstanding EPA’s disavowal, that the agency relied 

on the de minimis doctrine to justify its current action would the Court have 

occasion to decide whether EPA has met its burden to justify the Exemption on 

those grounds. Pet. Br. at 38-39. That question would, of course, have to be 

answered in light of EPA’s concession that it lacks a supporting record for a de 

minimis exemption. EPA Br. at 35-36. 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 25 of 40
17 

EPA nonetheless contends, without any legal support, that de minimis

principles should be a “factor” in the Court’s consideration of EPA’s use of other

doctrines, such as administrative necessity. EPA Br. at 35. EPA cannot have it 

both ways; after disclaiming reliance on the de minimis doctrine and conceding it 

lacks a supporting record, EPA cannot invoke the same doctrine in watered down 

form to bolster its otherwise inadequate justifications. No cases allow EPA to 

transform a weak showing of administrative burden into the required 

demonstration of impossibility by claiming that some of the exempted sources may 

later be found to have only de minimis impacts. See Pet. Br. at 36. 

The administrative record here would not support a de minimis exemption in 

any event. In both its proposed and final Biomass Exemptions, EPA effectively 

admitted the possibility that certain exempted feedstocks do have effects that are 

not de minimis: “the use of whole, standing tress [sic], removes a carbon sink that, 

although replaced with carbon absorbing trees through recognized and even 

regulated forest management, may take many years or decades to complete such 

replacement, depending on the type of tree, location and other factors.” EPA Br. at 

31 (citing RTC at 9, JA __); see also 76 Fed. Reg. at 43,498/1, 43,499/1-2 (JA__, 

__); 76 Fed. Reg. 15,261/3 (JA __) (admitting possibility that some biomass 

feedstocks “have a significant impact on the net carbon cycle”). 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 26 of 40
18 

Yet EPA indiscriminately extended the Exemption to all biomass 

feedstocks, including whole, standing trees. See 76. Fed. Reg. at 43,493/1 (JA __) 

(excluding emissions from all “biologically-based materials other than fossil fuels 

and mineral sources of carbon”). The Biomass Exemption thus is grossly 

overbroad and could not be justified on de minimis grounds. See New York v. EPA, 

443 F.3d 880, 888 (D.C. Cir. 2006) (“Reliance on the de minimis doctrine invokes 

congressional intent that agencies diverge from the plain meaning of a statue only 

so far as is necessary to avoid its futile application.”). 

2. EPA’s Post Hoc Reliance on Absurd Results Fails. 

Having acknowledged not making or supporting a de minimis exemption, 

EPA repackages the same basic position as an attempt to avoid “absurd results.” 

This new rationale is not only post hoc but also lacks substantive merit. 

This Court has described an agency’s responsibility to “set forth the reasons 

for its actions” as “the fundamental requirement of nonarbitrary administrative 

decisionmaking.” Northeast Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 949 

(D.C. Cir. 2004). The Clean Air Act requires proposed and promulgated rules to 

set forth a “statement of basis and purpose” that summarizes “the major legal 

interpretations and policy considerations underlying the proposed rule.” 

§§ 307(d)(3)(C), (d)(6)(A)(i); 42 U.S.C. §§ 7607(d)(3)(C), (d)(6)(A)(i). 

Axiomatically, “the courts may not accept appellate counsel’s post hoc

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 27 of 40
19 

rationalizations for agency action. It is well established that an agency’s action 

must be upheld, if at all, on the basis articulated by the agency itself.” Motor 

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) 

(citations omitted). 

EPA’s “absurd results” rationale is entirely post hoc. EPA claims it 

“explained”—albeit in a single phrase—that the Exemption was supported by “the 

same rationale” as the Tailoring Rule, and thereby incorporated reliance on the 

absurd results doctrine. EPA Br. at 58. Yet nothing in the proposed or final 

Exemption actually identified “absurd results” as a rationale EPA intended to rely 

on. All EPA said was that its “decision to defer the applicability of PSD and Title 

V to biogenic CO2 emissions is . . . supported, in part, on the same rationale as 

EPA used to justify the Tailoring Rule’s phase-in approach.” 76 Fed. Reg. at 

43,496/3 (JA __). This one vague reference cannot satisfy EPA’s burden to 

explain what it did and why. See, e.g., Northeast Md. Waste Disposal Auth., 358 

F.3d at 949 (holding that a single reference to “supporting information” in prior 

rulemaking docket insufficient to explain agency rationale). 

The “absurd result” EPA invokes here is not even the same “absurd result” 

discussed in the Tailoring Rule. There, EPA identified administrative burdens 

leading to permitting paralysis as the relevant “absurd result.” See, e.g., 75 Fed. 

Reg. at 31,547/3 (JA __). Here, EPA claims the Exemption is needed to avoid the 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 28 of 40
20 

“absurd result” of permitting biogenic CO2 sources that it speculates may later be 

found to have de minimis effects. EPA Br. at 59. This is not at all “the same 

rationale . . . used to justify the Tailoring Rule,” id. at 58, but rather a whole-cloth 

post hoc invention. 

Even if this Court could reach EPA’s post hoc argument, it would fail on the 

merits. The Tailoring Rule itself stated that a categorical exemption for sources of 

biogenic CO2 emissions was not warranted on that record. 75 Fed. Reg. at 

31,591/1 (JA __). Moreover, EPA’s assertion that it would be “absurd” to require 

permits for sources that might someday prove to have negligible or negative net 

lifecycle emissions (EPA Br. at 58-59), is simply the disclaimed de minimis

rationale marching under another banner. In any event, to avoid absurd results, 

EPA “may deviate no further from the statute than is needed to protect 

Congressional intent.” Mova Pharm. Corp., 140 F.3d at 1068. Here, EPA tacitly 

concedes the Exemption sweeps in sources like “whole, standing trees,” EPA Br. at 

31, that should be regulated, and is thus overbroad. 

Finally, EPA simply assumes Congress would prefer to let even the largest 

sources burning clearly detrimental types of biomass escape permitting and 

pollution controls (see EPA Br. at 57-59), rather than risk even the possibility of 

requiring permits for some sources that might later be shown to have negligible or 

beneficial lifecycle profiles. EPA points to nothing in the statute or the legislative 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 29 of 40
21 

history showing that Congress intended this result. If anything, the PSD program’s 

pollution-reduction and harm-prevention purposes undercut EPA’s assumption. 

See CRR, slip op. at 58. 

D. EPA Has Failed to Justify the Exemption Under the “One Step at a Time” 

Doctrine. 

1. EPA Misconstrues the Reach of the “One-Step-at-a-Time” 

Doctrine.

The “one-step-at-a-time” doctrine provides no independent authority to 

depart from the Clean Air Act’s clear and self-executing commands where, as here, 

the agency has failed to support such departure on administrative necessity, absurd 

results, or de minimis impact grounds. It is true that where Congress directs an 

agency to issue regulations needed to effectuate a statutory directive, the agency 

has latitude in some circumstances to proceed stepwise towards full 

implementation, rather than tackling the whole problem at once. See Hazardous 

Waste Treatment Council v. EPA, 861 F.2d 277, 288 (D.C. Cir. 1988) (noting that 

the agency may proceed stepwise to implement a statute whose 

“structure...confirms the EPA’s broad discretion.”). The “one-step-at-a-time” 

doctrine, however, applies only where agencies already have statutory discretion. 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 30 of 40
22 

Pet. Br. at 54-57. It does not provide EPA with independent authority to exempt 

regulated entities from clear statutory commands.6

 

As EPA recognizes (see EPA Br. at 59), PSD permitting requirements for 

CO2 took effect “by automatic operation of the statute” when EPA regulated 

vehicular greenhouse gas emissions under Title II of the Act. CRR, slip op. at 53-

54, 77. Congress thus did not leave EPA broad leeway to create its own stepwise 

regulatory program for a pollutant newly subject to regulation. Because 

applicability of PSD permitting requirements does not hinge on EPA’s 

implementation, the Exemption requires a compelling justification under some 

established doctrine of statutory construction. In the Tailoring Rule, EPA 

grounded its departure from the statute in a robust demonstration of administrative 

necessity. In such a context, the one-step doctrine may provide support for the 

agency to phase out an exemption and return towards full compliance with the 

statutory language in several steps, where each of those steps is based on a 

 

6

 The cases cited by EPA (Br. at 35-36)—all decided under statutes that leave the 

agency involved some discretion in implementing a statutory goal—make this 

clear. See City of Las Vegas v. Lujan, 891 F.2d 927, 935 (D.C. Cir. 1989) 

(Endangered Species Act does not require that, for emergency listing of one 

population as endangered to be valid, other arguably similar populations be 

concurrently listed); Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 476-478

(D.C. Cir. 1998) (upholding stepwise approach to implement Congressional 

directive to develop a regulatory plan for achieving “substantial restoration of the 

natural quiet and experience of the park”); Nat’l Ass’n of Broadcasters v. FCC, 

740 F.2d 1190, 1207 (D.C. Cir. 1984) (condoning agency’s step-at-a-time response 

to a situation not involving a specific “statutory requirement” but rather the 

agency’s informed judgment about the public interest). 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 31 of 40
23 

demonstration of ongoing administrative necessity and minimal departure from the 

statute. Here, although EPA salts its one-step-at-a-time argument with references 

to administrative necessity (EPA Br. at 36-37), nowhere does it show on the record 

the existence of such necessity. See supra at 9-15. 

2. EPA Cannot Justify the Biomass Exemption Under the CatchAll General Rulemaking Authority Found in Section 301.

Offering yet another post-hoc rationale, EPA asserts that Clean Air Act 

section 301 gives it sweeping authority to act incrementally, even in the face of 

clear statutory requirements.7

 EPA Br. at 38. But EPA misreads the statute, which 

authorizes regulation only “as necessary to carry out [the Administrator’s] 

functions under this chapter”—that is, under the Clean Air Act—not in whatever 

way she “deem[s] necessary or expedient.” See § 301(a)(1); 42 U.S.C. § 

7601(a)(1) (emphasis added) (applying the latter phrase only to the Administrator’s 

discretion to delegate non-rulemaking authority). Section 301 thus provides 

authority to regulate only in a manner consistent with the statute, not in ways that 

contravene it. This is all the more so where Congress created self-executing 

provisions, as in the PSD program. EPA’s position is unsupportable. 

Neither Citizens to Save Spencer County v. EPA, 600 F.2d 844 (D.C. Cir. 

1979), nor Alaska DEC v. EPA, 540 U.S. 461 (2004), supports the proposition that 

 

7

 Nowhere in the proposed or final Biomass Exemption does EPA make the 

argument that section 301 gives it broad, unfettered authority to carve exemptions 

from the statute’s PSD applicability provisions. 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 32 of 40
24 

the catch-all provisions of section 301(a)(1) authorize EPA to override express 

requirements in other sections of the Act. Spencer County recognized EPA’s need 

to reconcile two competing express requirements of the then-new 1977 CAA 

Amendments, rather than leaving the choice to the states. Spencer County, 600 

F.2d at 868. The case in no way suggests that EPA has unbounded authority to 

create broad, unjustified exemptions from specific statutory requirements. 

In Alaska DEC, it was not the “general authority” of section 301(a)(1), but 

rather the oversight role expressly defined by Congress in CAA sections 113(a)(5) 

and 167, that gave EPA authority to ensure that Alaska’s BACT determinations 

met the statute’s requirements. Alaska DEC, 540 U.S. at 484. This case, too, does 

not support broad agency discretion to create exemptions from the statute’s 

express, detailed requirements. 

3. No “New Situation” or Unforeseen Condition Supports EPA’s 

Biomass Exemption.

EPA’s claim of “heightened” discretion to act in “new circumstances,” EPA 

Br. at 39, has little meaning in the context of self-executing provisions like those at 

issue here. The cases offered by the agency—all involving agency actions taken 

under ambiguous statutes, not deviations from clear and self-executing statutory 

requirements—are inapposite. See United States v. Haggar Apparel Co., 526 U.S. 

380, 392-93 (1999) (requiring tariff where agency had discretion to evaluate 

situation because provisions authorizing exemptions were ambiguous); American 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 33 of 40
25 

Trucking Ass’ns v. United States, 344 U.S. 298, 312 (1953) (upholding agency 

decision to take regulatory action as reasonable where statute did not provide 

specifics); Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of America, 836 F.2d 

599, 608 (D.C. Cir. 1988) (noting specifically that the relevant statute was not selfexecuting, and in that circumstance finding authority for agency action in 

furtherance of the general statutory policy); Indep. Bankers Ass’n. v. Marine 

Midland Bank, 757 F.2d 453, 460 (2d Cir. 1985) (finding agency authority to act in 

furtherance of the statute’s goals where statute’s language was “not 

determinative”). Because the relevant statutory language here is self-executing, 

EPA has no discretion over applicability in the first instance. 

IV. THE ARGUMENTS OF AMICUS CURIAE NACWA CANNOT 

SALVAGE EPA’S UNLAWFUL EXEMPTION. 

In its amicus curiae brief in support of the Biomass Exemption, NACWA 

raises legal and factual issues concerning publicly owned water treatment facilities. 

NACWA has proffered arguments regarding EPA’s legal authority that the agency 

did not rely on. See, e.g., Brief Amicus Curiae of the National Association of 

Clean Water Agencies in Support of Respondents at 14-17. Because they did not 

form EPA’s basis for the Exemption, the Court should not consider them. See 

§ 307(d)(6)(C), (7)(A); 42 U.S.C. §7607(d)(6)(C); (7)(A); see also Manin v. Nat’l 

Transp. Safety Bd., 627 F.3d 1239, 1243 (D.C. Cir. 2011) (“[T]he law does not 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 34 of 40
26 

allow us to affirm an agency decision on a ground other than that relied upon by 

the agency.”). 

NACWA’s factual assertions also are grounded in evidence outside the 

record. None of the documents cited in NACWA’s brief were submitted to EPA 

for inclusion in the docket, and very few were even mentioned in NACWA’s 

comment letters. See NACWA Comments Re: EPA Proposed National 

Greenhouse Gas Reporting Regime, EPA-HQ-OAR-2008-0508-0566 (JA __-__); 

NACWA Comments Re: Proposed GHG Tailoring Rule, EPA-HQ-OAR-2009-

0517-5336 (JA __-__); NACWA Comments Re: Call for Information, EPA-HQOAR-2010-0560-0156 (JA __-__); NACWA Comments Re: Biogenic Emissions 

Deferral, EPA-HQ-OAR-2011-0083-0117 (JA __-__). As discussed supra at 6, 

this evidence lies outside the administrative record and is not properly before this 

Court. Parties bear the burden of ensuring that the documents on which they 

intend to rely appear in the administrative record. See Appalachian Power Co. v. 

EPA, 135 F.3d 791, 799 n.14 (D.C. Cir. 1998). 

Finally, even if NACWA’s arguments and evidence could be considered, 

they would not save the Exemption. At best, NACWA’s brief provides evidence 

and arguments that EPA might have considered in crafting a far more narrowly 

tailored exemption. But EPA did not consider any such narrow exemption here. 

NACWA’s brief offers no basis for upholding the Exemption. 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 35 of 40
27 

V. THE COURT SHOULD VACATE THE BIOMASS EXEMPTION. 

Vacatur is the proper remedy where, as here, an exemption violates 

unambiguous statutory language. Sierra Club v. EPA, 551 F.3d 1019, 1028 (D.C. 

Cir. 2008) (vacating unauthorized exemption); see also New Jersey v. EPA, 517 

F.3d 574, 578, 583-84 (D.C. Cir. 2008) (vacating delisting of air toxics-emitting 

power plants from § 112 source category list where statutory prerequisites were not 

satisfied). As this Court held in CRR, the statute unambiguously prohibits the 

sources at issue in this case from constructing or operating without required 

permits. Lacking a record-supported, doctrinally sound basis, the Biomass 

Exemption plainly and substantively violates the Clean Air Act, and must not be 

allowed to stand. 

Vacatur is also appropriate because there is “little or no prospect of the 

rule’s being readopted upon the basis of a more adequate explanation of the 

agency’s reasoning.” NRDC v. EPA, 571 F.3d 1245, 1276 (D.C. Cir. 2008) 

(quoting Ill. Pub. Telecomms. Ass’n v. FCC, 123 F.3d 693, 693 (D.C. Cir. 1997)). 

Given EPA’s concession that burning at least some forms of biomass (e.g., burning 

whole trees) “might be categorized as a net contributor of CO2,” EPA Br. at 4, 

there is little or no prospect that EPA will be able to readopt the blanket exemption 

of all biogenic CO2 sources. 

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 36 of 40
28 

Finally, this Court has in exceptional cases granted petitioners’ (or 

plaintiffs’) requests to leave a remanded rule in effect where vacatur “would at 

least temporarily defeat [petitioner’s] purpose” in bringing the case. See, e.g., 

Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 635 (D.C. Cir. 2000); see also Envtl. Def. 

Fund v. EPA, 898 F.2d 183, 190 (D.C. Cir. 1990) (same). Here, by contrast, 

Petitioners actively seek vacatur to avoid adverse environmental effects from the 

Exemption. Moreover, a remand without vacatur would effectively amount to an 

indefinite stay of the effectiveness of the court’s decision. See Honeywell Int’l Inc. 

v. EPA, 374 F.3d 1363, 1375 (D.C. Cir. 2004) (Randolph, J., concurring). Given 

the likelihood that the full three-year exemption period would run before EPA 

acted, a simple remand in this instance would be equivalent to denying Petitioners 

any relief at all. 

For all these reasons, vacatur is required. 

CONCLUSION 

For the foregoing reasons, and for the reasons set forth in Petitioners’ 

Opening Brief, the Biomass Exemption must be vacated. 

Respectfully submitted this 10th day of July, 2012.

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 37 of 40
29 

/s/ Kevin P. Bundy

Kevin P. Bundy 

Vera P. Pardee 

Brendan Cummings 

Center for Biological Diversity 

351 California Street, Suite 600 

San Francisco, CA 94104 

Phone: (415) 436-9682 ext. 313 

kbundy@biologicaldiversity.org

Counsel for Center for Biological 

Diversity 

/s/ Ann Brewster Weeks (KB)

Ann Brewster Weeks 

Clean Air Task Force 

18 Tremont Street, Suite 530 

Boston, MA 02108 

Phone: (617) 624-0234 ext. 156 

aweeks@catf.us 

 

Counsel for Conservation Law 

Foundation and Natural Resources 

Council of Maine 

/s/ Frank Rambo (KB)

Frank Rambo 

Morgan Butler 

Southern Environmental Law Center 

201 West Main Street, Suite 14 

Charlottesville, VA 22902 

Phone: (434) 977-4090 

frambo@selcva.org 

Counsel for Coastal Conservation 

League, Dogwood Alliance, Georgia 

ForestWatch, and Wild Virginia 

/s/ David Doniger (KB)

David Doniger 

Natural Resources Defense Council 

1152 15th Street NW, Suite 300 

Washington, D.C. 20005 

Phone: (202) 289-2403 

ddoniger@nrdc.org 

/s/ Nathaniel S.W. Lawrence (KB)

Nathaniel S.W. Lawrence 

Natural Resources Defense Council 

3723 Holiday Drive, SE 

Olympia, WA 98501 

Phone: (360) 534-9900 

nlawrence@nrdc.org

/s/ Meleah Geertsma (KB)

Meleah Geertsma

Natural Resources Defense Council 

2 N. Riverside Plaza, Suite 2250 

Chicago, IL 60606 

Phone: (312) 651-7904 

mgeertsma@nrdc.org 

Counsel for Natural Resources 

Defense Council

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 38 of 40
30 

CERTIFICATE REGARDING WORD LIMITATION 

 Counsel hereby certifies that, in accordance with Federal Rule of Appellate 

Procedure 32(a)(7)(C), the foregoing Opening Brief of Petitioners contains 6,560 

words, as counted by counsel’s word processing system. 

DATED: July 10, 2012 SIGNED: /s/ Kevin P. Bundy

USCA Case #11-1101 Document #1382982 Filed: 07/10/2012 Page 39 of 40
CERTIFICATE OF SERVICE

 I hereby certify that the foregoing Reply Brief of Petitioners was 

electronically filed with the Clerk of the Court using the CM/ECF system, which 

will send notification of said filing to the attorneys of record who have registered 

with the Court’s CM/ECF system. 

DATED: July 10, 2012 SIGNED: /s/ Kevin P. Bundy__ 

 

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