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, 

Respondents.

Petition for Review of Final Agency Action 

OPENING BRIEF OF PETITIONERS (CORRECTED) 

Ann Brewster Weeks 

Helen D. Silver 

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 

 

DATED: March 15, 2012 (corrected 

filing) 

Kevin 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 

Meleah A. Geertsma 

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 

USCA Case #11-1101 Document #1364134 Filed: 03/16/2012 Page 1 of 322
1

ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT 

____________________________________ 

CENTER FOR BIOLOGICAL ) 

DIVERSITY, et al., ) 

 ) 

 Petitioners, ) 

 v. ) Case No. 11-1101 

 ) (Consolidated with 11-1285, 

UNITED STATES ENVIRONMENTAL ) 11-1328, and 11-1336 

PROTECTION AGENCY, et al., ) 

 ) 

 Respondent. ) 

PETITIONERS’ CERTIFICATE AS TO PARTIES, 

RULINGS, AND RELATED CASES 

Pursuant to Circuit Rules 15(c)(3) and 28(a)(1), Center for Biological 

Diversity, Coastal Conservation League, Conservation Law Foundation, Dogwood 

Alliance, Georgia ForestWatch, Natural Resources Council of Maine, Natural 

Resources Defense Council, and Wild Virginia (“Petitioners”) submit this 

certificate as to parties, rulings, and related cases: 

(A) Parties and Amici

(i) Parties, Intervenors, and Amicus Curiae Who Appeared in the 

District Court: 

These cases are consolidated petitions for review of final agency actions, not 

appeals from rulings of a district court. 

USCA Case #11-1101 Document #1364134 Filed: 03/16/2012 Page 2 of 322
2

(ii) Parties to the Consolidated Challenges: 

Case No. 11-1101: 

Petitioners are Center for Biological Diversity, Conservation Law 

Foundation, and Natural Resources Council of Maine. 

Respondents are the United States Environmental Protection Agency and 

Lisa P. Jackson, Administrator of EPA. 

Intervenors in Support of Respondents are American Forest & Paper 

Association, American Wood Council, Biomass Power Association, Corn Refiners 

Association, Florida Sugar Industry, National Oilseed Processors Association, 

Rubber Manufacturers Association, Treated Wood Council, Renewable Fuels 

Association, Utility Air Regulatory Group, and National Alliance of Forest 

Owners. 

Case Nos. 11-1285, 1328, 1336 

Petitioners are Center for Biological Diversity, Conservation Law 

Foundation, Natural Resources Council of Maine, Georgia ForestWatch, and Wild 

Virginia (Case No. 11-1285), Natural Resources Defenses Council (Case No. 11-

1328), and Coastal Conservation League and Dogwood Alliance (Case No. 11-

1336). 

Respondents in all above-mentioned consolidated cases are EPA and Lisa P. 

Jackson. 

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3

Intervenors in Support of Respondents are American Forest & Paper 

Association, American Wood Council, Biomass Power Association, Corn Refiners 

Association, Florida Sugar Industry, National Oilseed Processors Association, 

Rubber Manufacturers Association, Treated Wood Council, Renewable Fuels 

Association, Utility Air Regulatory Group, and National Alliance of Forest 

Owners. 

(iii) Amici Curiae 

Petitioners are aware of no amici curiae in any of these consolidated cases. 

(iv) Circuit 26.1 Disclosures 

Petitioners’ disclosures under Circuit Rule 26.1 are in a separate disclosure 

statement, below. 

(A) Rulings Under Review 

These Petitions for Review challenge (1) the Environmental Protection 

Agency’s decision to grant a petition for reconsideration filed by the National 

Alliance of Forest Owners, as published in Deferral for CO2 Emissions from 

Bioenergy and Other Biogenic Sources Under the Prevention of Significant 

Deterioration (PSD) and Title V Programs: Proposed Rule at 76 Fed. Reg. 15,249 

(Mar. 21, 2011) and (2) the Environmental Protection Agency’s final rule titled 

Deferral for CO2 Emissions From Bioenergy and Other Biogenic Sources Under 

USCA Case #11-1101 Document #1364134 Filed: 03/16/2012 Page 4 of 322
4

the Prevention of Significant Deterioration (PSD) and Title V Programs: Final 

Rule at 76 Fed. Reg. 43,490 (July 20, 2011). 

(B) Related Cases 

Petitioners are aware of one additional case related to the EPA final actions 

challenged here, National Alliance of Forest Owners et al. v. Environmental 

Protection Agency (Case No. 10-1209). Pursuant to this Court’s Order of May 27, 

2011, that case was severed from Coalition for Responsible Regulation et al. v. 

Environmental Protection Agency (Case No. 10-1073 and consolidated cases) and 

held in abeyance pending further order of this Court. 

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Respectfully submitted, this 15th Day of March, 2012

/s/ Ann Brewster Weeks (NL)

Ann Brewster Weeks 

Helen D. Silver 

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 (NL)

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/ Kevin Bundy (NL)

Kevin 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 

David Doniger 

Meleah A. Geertsma 

Natural Resources Defense Council 

1152 15th Street NW, Suite 300 

Washington, D.C. 20005 

Phone: (202) 289-2403 

ddoniger@nrdc.org 

mgeertsma@nrdc.org 

/s/ Nathaniel S.W. Lawrence

Nathaniel S.W. Lawrence 

Natural Resources Defense Council 

3723 Holiday Drive, SE 

Olympia, WA 98501 

Phone: (360) 534-9900 

nlawrence@nrdc.org

Counsel for Natural Resources 

Defense Council

USCA Case #11-1101 Document #1364134 Filed: 03/16/2012 Page 6 of 322
1

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

____________________________________ 

CENTER FOR BIOLOGICAL ) 

DIVERSITY, et al., ) 

 ) 

 Petitioners, ) 

 v. ) Case No. 11-1101 

 ) (Consolidated with 11-1285, 

UNITED STATES ENVIRONMENTAL ) 11-1328, and 11-1336 

PROTECTION AGENCY, ) 

 ) 

 Respondent. ) 

PETITIONERS’ RULE 26.1 DISCLOSURE STATEMENT 

Pursuant to Fed. R. App. P. 26.1 and D.C. Circuit Rule 26.1, Petitioners 

make the following disclosures. 

Center for Biological Diversity. Center for Biological Diversity, a not-forprofit organization organized under the laws of the State of New Mexico, is 

focused on the preservation, protection, and restoration of biodiversity, native 

species, ecosystems, public lands and waters, and public health. Its core 

organizational missions include securing protection for species threatened by the 

impacts of global warming, ensuring compliance with applicable law in order to 

reduce greenhouse emissions and other air pollution, and educating and mobilizing 

the public on global warming and air quality issues. Center for Biological 

Diversity has no parent companies, and no publicly held company has a 10% or 

greater ownership interest in Center for Biological Diversity. 

USCA Case #11-1101 Document #1364134 Filed: 03/16/2012 Page 7 of 322
2

Coastal Conservation League. Coastal Conservation League is a 

nonprofit organization organized under the laws of the State of South Carolina and 

incorporated under Section 501(c)(3) of the Internal Revenue Code that works to 

protect the natural environment and communities of the South Carolina coastal 

plain. Coastal Conservation League has no parent companies, and no publicly held 

company has a 10% or greater ownership in Coastal Conservation League. 

Conservation Law Foundation. Conservation Law Foundation is a notfor-profit corporation organized under the laws of the Commonwealth of 

Massachusetts that uses law, science, policy, and the business market to find 

pragmatic, innovative solutions to New England’s toughest environmental 

problems. Conservation Law Foundation has no parent companies, and no 

publicly held company has a 10% or greater ownership interest in Conservation 

Law Foundation. 

Dogwood Alliance. Dogwood Alliance is a nonprofit organization 

organized under the laws of the State of North Carolina and incorporated under 

Section 501(c)(3) of the Internal Revenue Code. Dogwood Alliance works to 

preserve and restore native forest ecosystems in the southeastern United States. 

Dogwood Alliance has no parent companies, and no publicly held company has a 

10% or greater ownership interest in Dogwood Alliance. 

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Georgia ForestWatch. Georgia ForestWatch is a nonprofit organization 

organized under the laws of the State of Georgia and incorporated under Section 

501(c)(3) of the Internal Revenue Code that works to promote healthy forests and 

watersheds in national forest lands in Georgia. Georgia ForestWatch has no parent 

companies, and no publicly held company has a 10% or greater ownership interest 

in Georgia ForestWatch. 

Natural Resources Council of Maine. Natural Resources Council of 

Maine, a not-for-profit corporation organized and existing under the laws of the 

State of Maine, is a membership organization dedicated to preserving the quality of 

the air, water, forest and other natural resources of the State of Maine, for the 

benefit of its people and its environment. Natural Resources Council of Maine has 

no parent companies, and no publicly held company has a 10% or greater 

ownership interest in Natural Resources Council of Maine. 

Natural Resources Defense Council. Natural Resources Defense Council, 

a corporation organized and existing under the laws of the State of New York, is a 

national nonprofit organization dedicated to improving the quality of the human 

environment and protecting the nation’s endangered resources. The Natural 

Resources Defense Council has no parent companies, subsidiaries, or affiliates that 

have issued shares or debt securities to the public.   

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Wild Virginia. Wild Virginia is a nonprofit organization organized under 

the laws of the State of Virginia and incorporated under Section 501(c)(3) of the 

Internal Revenue Code. Wild Virginia works to preserve wild forest ecosystems in 

Virginia’s National Forests. Wild Virginia has no parent companies, and no 

publicly held company has a 10% or greater ownership interest in Wild Virginia.

USCA Case #11-1101 Document #1364134 Filed: 03/16/2012 Page 10 of 322
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Respectfully submitted, this 15th Day of March, 2012

/s/ Ann Brewster Weeks (NL)

Ann Brewster Weeks 

Helen D. Silver 

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 (NL)

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/ Kevin Bundy (NL)

Kevin 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 

David Doniger 

Meleah A. Geertsma 

Natural Resources Defense Council 

1152 15th Street NW, Suite 300 

Washington, D.C. 20005 

Phone: (202) 289-2403 

ddoniger@nrdc.org 

mgeertsma@nrdc.org 

/s/ Nathaniel S.W. Lawrence

Nathaniel S.W. Lawrence 

Natural Resources Defense Council 

3723 Holiday Drive, SE 

Olympia, WA 98501 

Phone: (360) 534-9900 

nlawrence@nrdc.org

Counsel for Natural Resources 

Defense Council

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i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iv

GLOSSARY OF ACRONYMS AND ABBREVIATIONS ................................... ix

JURISDICTIONAL STATEMENT ..........................................................................1

STATEMENT OF THE ISSUES...............................................................................1

STATUTES AND REGULATIONS.........................................................................2

STATUTORY AND REGULATORY FRAMEWORK...........................................2

A. The Clean Air Act’s Construction and Operating Permit Programs...............2

1. Prevention of Significant Deterioration Construction Permits .............2

2. Title V Operating Permits .....................................................................4

3. State and Federal Permitting Agencies .................................................5

FACTUAL BACKGROUND....................................................................................5

A. Biogenic CO2 Emissions and the Carbon Cycle..............................................5

B. Regulation of Greenhouse Gases from Massachusetts v. EPA to the 

Tailoring Rule. ...........................................................................................................7

C. The Tailoring Rule’s Treatment of Biogenic CO2 ..........................................8

D. The Proposed Biomass Exemption..................................................................9

E. Comments on the Proposed Exemption ........................................................14

F. The Final Exemption .....................................................................................16

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ii

SUMMARY OF ARGUMENT ...............................................................................18

STANDING .............................................................................................................20

ARGUMENT ...........................................................................................................30

I. STANDARD OF REVIEW...........................................................................30

II. THE ADMINISTRATIVE NECESSITY DOCTRINE DOES NOT 

SUPPORT THE BIOMASS EXEMPTION ............................................................30

A. The Administrative Necessity Doctrine Allows Departure From Statutory 

Commands Only Under Very Narrow Circumstances ............................................31

B. EPA Failed to Demonstrate that There Are Impossible Burdens Associated 

With Regulating Biogenic CO2 Under the Tailoring Rule ......................................32

C. EPA Failed to Justify Rejecting the Narrower Alternative of Ignoring 

Lifecycle Factors at the BACT Stage During the Three-Year Exemption Period ..35

III. THE DE MINIMIS DOCTRINE DOES NOT SUPPORT THE BIOMASS 

EXEMPTION...........................................................................................................37

A. The Clean Air Act Does Not Allow a De Minimis Exemption Based on OffSite CO2 Absorption.................................................................................................39

1. The Clean Air Act Does Not Allow Consideration of Off-Site Factors 

in PSD and Title V Permit Applicability Decisions......................................40

2. The De Minimis Doctrine Does Not Allow EPA to Introduce 

Legislatively Excluded Factors into Permit Applicability Decisions ...........46

B. EPA Has No Record Support for a Categorical De Minimis Exemption for 

Biogenic CO2 Emissions..........................................................................................47

1. EPA May Not Base an Exemption on Speculative Future Fact-Finding 

About Lifecycle CO2 Emissions....................................................................47

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iii

2. EPA Failed to Tailor its Biogenic CO2 Exemption as Narrowly as 

Possible ..........................................................................................................48

3. EPA Did Not Demonstrate That Other Impacts Will be De Minimis.52

IV. THE ONE-STEP-AT-A-TIME DOCTRINE DOES NOT SUPPORT THE 

BIOMASS EXEMPTION........................................................................................54

CONCLUSION........................................................................................................57

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TABLE OF AUTHORITIES 

CASES

*Ala. Power Co. v. Costle 

636 F.2d 323 (D.C. Cir. 1979)........................ 2, 31, 35, 39, 40, 41, 46, 47, 54 

Animal Legal Defense Def. Fund v. Glickman 

154 F.3d 426, 444 (D.C. Cir. 1998)..............................................................26 

*Chevron v. NRDC 

467 U.S. 837 (1984).......................................................................... 40, 41, 42 

*Environmental Defense Fund v. EPA 

636 F.2d 1267 (DC Cir. 1980).......................................................... 31, 32, 34 

Interstate Natural Gas Ass’n of Am. v. FERC 

285 F.3d 18 (D.C. Cir. 2002).........................................................................55 

Lujan v. Defenders of Wildlife 

504 U.S. 555 (1992).......................................................................................21 

Massachusetts v. EPA 

549 U.S. 497 (2007).................................................................................. 7, 44 

*Mova Pharmaceutical Corp. v. Shalala 

140 F.3d 1060, 1074-75 (D.C. Cir. 1998) ............................................. 26, 32 

*Nat’l Ass’n of Broadcasters v. FCC 

740 F.2d 1190 (D.C. Cir. 1984).............................................................. 54, 55 

*New York v. EPA 

443 F.3d 880 (D.C. Cir 2006)................................................................. 39, 48 

* Authorities upon which we chiefly rely are marked with asterisks 

USCA Case #11-1101 Document #1364134 Filed: 03/16/2012 Page 15 of 322
v

NRDC v. EPA 

966 F.2d 1292 (9th Cir. 1992) .......................................................................48 

Ober v. Whitman 

243 F.3d 1190 (9th Cir. 2001) .......................................................................40 

*Ohio v. EPA 

997 F.2d 1520 (D.C. Cir. 1993)....................................................... 40, 51, 52 

Permian Basin Area Rate Cases 

390 U.S. 747 (1968).......................................................................................35 

Pub. Citizen Health Research Grp. v. FDA 

185 F.3d 898 (D.C. Cir. 1999).......................................................................55 

Pub. Citizen v. FTC 

869 F.2d 1541 (D.C. Cir. 1998)........................................................ 32, 36, 37 

Shays v. Fed. Elections Comm’n 

414 F.3d 76 (D.C. Cir. 2005).........................................................................40 

Sierra Club v. EPA 

292 F.3d 895 (D.C. Cir. 2002).......................................................................21 

Sierra Club v. EPA 

499 F.3d 653 (7th Cir. 2007) .........................................................................24 

*Sierra Club v. EPA 

719 F.2d 436 (D.C. Cir. 1983).................................................... 31, 32, 34, 39 

STATUTES

42 U.S.C. § 7410(a)(2)(C) .........................................................................................5 

42 U.S.C. § 7410(c) ...................................................................................................5 

42 U.S.C. § 7411(a)(3).............................................................................................41 

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42 U.S.C. § 7470......................................................................................................26 

42 U.S.C. § 7475........................................................................................................2 

42 U.S.C. § 7475(a) .................................................................................................41 

42 U.S.C. §7475(a)(1)..............................................................................................25 

42 U.S.C. § 7475(a)(3).............................................................................................53 

42 U.S.C. § 7475(a)(4)...................................................................................... 23, 25 

42 U.S.C. § 7475(a)(5).............................................................................................53 

42 U.S.C. § 7479........................................................................................................2 

42 U.S.C. § 7479(1) .................................................................................................41 

42 U.S.C. § 7479(3) .......................................................................................... 24, 26 

42 U.S.C. § 7503(a)(1)(A) .......................................................................................45 

42 U.S.C. § 7521(a)(1)...............................................................................................7 

42 U.S.C. § 7545(o) .................................................................................................45 

42 U.S.C. § 7602(g) ...................................................................................................7 

42 U.S.C. § 7602(j) ............................................................................................. 5, 42 

42 U.S.C. § 7607(b)(1)...............................................................................................1 

42 U.S.C. § 7607(b)(2)...............................................................................................1 

42 U.S.C. § 7607(d)(9)(A)................................................................................ 20, 30 

42 U.S.C. § 7607(d)(9)(C) ................................................................................ 20, 30 

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42 U.S.C. § 7661(2) ...................................................................................................5 

42 U.S.C. § 7661a(a)........................................................................................... 4, 42 

REGULATIONS

40 C.F.R. § 51.166(b)(4).........................................................................................43 

40 C.F.R § 52.22(b) .................................................................................................57 

40 C.F.R. § 51.166(a).................................................................................................5 

40 C.F.R. § 51.166(a)(7)............................................................................................3 

40 C.F.R. § 51.166(b)(1)............................................................................................3 

40 C.F.R. § 51.166(b)(18)........................................................................................43 

40 C.F.R. § 51.166(b)(23)........................................................................................23 

40 C.F.R. § 51.166(b)(48)(ii)(a) ..............................................................................44 

40 C.F.R. § 51.166(j) ...............................................................................................23 

40 C.F.R. § 51.166(j)(2)...........................................................................................23 

40 C.F.R. § 51.166(j)(3)...........................................................................................23 

40 C.F.R. § 52.21(a)(1)..............................................................................................5 

40 C.F.R. § 52.21(b)(23)..........................................................................................23 

40 C.F.R. § 52.21(j) .................................................................................................23 

40 C.F.R. § 52.21(j)(2).............................................................................................23 

40 C.F.R. § 52.21(j)(3).............................................................................................23 

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40 C.F.R. § 70.1(a).....................................................................................................5 

40 C.F.R. § 70.4 .........................................................................................................5 

40 C.F.R. § 71.1 .........................................................................................................5 

40 C.F.R. § 71.4 .........................................................................................................5

43 Fed. Reg. 26,380 (June 19, 1978).........................................................................3 

74 Fed. Reg. 66,496 (Dec. 15, 2009).........................................................................7 

75 Fed. Reg. 17,004 (Apr. 2, 2010) .................................................................... 4, 44 

75 Fed. Reg. 25,324 (May 7, 2010)...........................................................................8 

*75 Fed. Reg. 31,514 (June 3, 2010).................................. 4, 8, 9, 10, 25, 33, 35, 57 

75 Fed. Reg. 41,173 (July 15, 2010)........................................................................49 

*76 Fed. Reg. 15,249 (Mar. 21, 2011).................. 6, 9, 10, 11, 12, 13, 14, 17, 44, 49 

*76 Fed. Reg. 43,490 (July 20, 2011)....... 1, 7, 17, 30, 33, 36, 38, 48, 49, 50, 51, 54 

OTHER AUTHORITIES

Random House Dictionary (online edition) .................................................................................43 

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GLOSSARY OF ACRONYMS AND ABBREVIATIONS 

BACT Best Available Control Technology 

CBD Center for Biological Diversity 

CERCLA Comprehensive Environmental Response, Compensation, 

 and Liability Act 

CFI Call For Information 

CO Carbon Monoxide 

CO2 Carbon Dioxide 

EPA Environmental Protection Agency 

GHG Green House Gas 

NAAQS National Ambient Air Quality Standards 

NAFO National Alliance of Forest Owners 

NOx Nitrogen Oxides 

NRDC Natural Resources Defense Council 

NSR New Source Review 

PM Particulate Matter 

PM2.5 Particulate Matter of 2.5 microns diameter 

PSD Prevention of Significant Deterioration 

RTC Response to Comments 

SELC Southern Environmental Law Center 

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JURISDICTIONAL STATEMENT 

Petitioners seek review of a final action of the Environmental Protection 

Agency (EPA) entitled Deferral for CO2 Emissions From Bioenergy and Other 

Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and 

Title V Programs, 76 Fed. Reg. 43,490 (July 20, 2011) (“Biomass Exemption” or 

“Exemption”) (JA ___). The petition in No. 11-1101 was filed on April 7, 2011. 

The petition in No. 11-1285 was filed on August 15, 2011. The petitions in Nos. 

11-1328 and 11-1336 were filed on Sept. 19, 2011. All petitions for review were 

filed within the 60-day period provided under Clean Air Act Section 307(b)(1), 

which gives this Court exclusive jurisdiction over petitions to review final EPA 

actions of nationwide applicability. 42 U.S.C. § 7607(b)(1); see also 76 Fed. Reg. 

at 43,491/1 (JA ___). Pursuant to section 307(b)(2), this includes jurisdiction to 

review any final action deferring performance of a nondiscretionary statutory 

action to a later time. 42 U.S.C. § 7607(b)(2) 

STATEMENT OF THE ISSUES 

In the final action under review, the Environmental Protection Agency 

issued a rule exempting stationary sources of biogenic carbon dioxide (CO2) 

pollution from the construction and operating permit requirements of the Clean Air 

Act. EPA identified neither any express authority, nor any gap or ambiguity, in the 

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Act that might authorize this exemption. Rather, EPA relied on last-resort 

doctrines allowing deviations from statutory requirements in extremely narrow 

circumstances. This presents the following issues: 

1. Is the exemption authorized under the administrative necessity doctrine? 

2. Is the exemption permissible or authorized under the de minimis doctrine? 

3. Is the exemption authorized by the “one-step-at-a-time” doctrine? 

STATUTES AND REGULATIONS 

Pertinent parts of statutes and regulations are reproduced in an addendum to 

this brief. 

STATUTORY AND REGULATORY FRAMEWORK 

A. The Clean Air Act’s Construction and Operating Permit Programs 

1. Prevention of Significant Deterioration Construction Permits

The Clean Air Act’s Prevention of Significant Deterioration (PSD) program 

requires each new or modified “major emitting facility” to obtain a construction 

permit showing that the facility meets specific pollution control requirements. 

Sections 165 and 169, 42 U.S.C. §§ 7475, 7479,1

 are the core provisions of the 

permit program. See Ala. Power Co. v. Costle, 636 F.2d 323, 352 (D.C. Cir. 

1979). Section 165(a) prohibits construction of any “major emitting facility” 

                                                           

1

 This brief generally refers to statutory provisions by their Clean Air Act section 

numbers. Parallel U.S. Code citations are given when provisions are first 

mentioned. 

USCA Case #11-1101 Document #1364134 Filed: 03/16/2012 Page 22 of 322
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without a permit. To obtain a permit, Section 165(a)(4) requires the facility, 

among other things, to meet an emission limitation reflecting the “best available 

control technology” (“BACT”) for “each pollutant subject to regulation under this 

chapter emitted from, or which results from, such facility.” Section 165(a)(2) also 

requires a public hearing where interested persons may submit data and views 

about air quality impacts, control technology options, alternatives to building the 

proposed facility, and other appropriate considerations. 

Section 169(1) defines a “major emitting facility” as any “stationary 

source[ ] ... which emit[s], or [has] the potential to emit” more than 100 or, 

depending on the source type, 250 tons per year of “any air pollutant.”2

 Section 

169(3) defines BACT, in pertinent part, as: 

an emission limitation based on the maximum degree of reduction of each 

pollutant subject to regulation under this chapter emitted from or which 

results from any major emitting facility, which the permitting authority, on a 

case-by-case basis, taking into account energy, environmental, and economic 

impacts and other costs, determines is achievable for such facility through 

application of production processes and available methods, systems, and 

techniques, including fuel cleaning, clean fuels, or treatment or innovative 

fuel combustion techniques for control of each such pollutant. 

 

In 2010 EPA issued the “Tailoring Rule” to phase in PSD permitting for 

sources of greenhouse gas emissions in a series of steps. 75 Fed. Reg. 31,514 

                                                           

2

 Long-standing EPA regulations define “any air pollutant” to mean any “regulated 

NSR [new source review] pollutant.” 40 C.F.R. § 51.166(a)(7) and (b)(1) 

(requiring permits of “major stationary sources” that emit certain amounts of 

“regulated NSR pollutant[s]”).  See, e.g., 43 Fed. Reg. 26,380, 26,403, 26,406 (June 

19, 1978).

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(June 3, 2010) (JA ___). Step 1 (which ran from January 2 through June 30, 

20113

) covered only major emitting facilities that already required a permit due to 

their emissions of non-greenhouse gases. Under Step 1, as part of obtaining a PSD 

permit, these sources had to meet BACT for their greenhouse gases if those 

emissions would increase by the equivalent of at least 75,000 tons of CO2 per year. 

Id. at 31,523/1-2 (JA ___). In Step 2 (which began July 1, 2011) extends coverage 

to the largest greenhouse gas emitting sources that were not already required to get 

PSD permits: A new source currently needs a permit if it has the potential to emit 

at least 100,000 tons of greenhouse gases per year, and a modified source needs a 

permit if it will increase those emissions by at least 75,000 tons. Id. at 31,523/3 – 

31,524/1 (JA ___-___). EPA also committed to further actions after Step 2 to 

bring additional sources into the PSD program over time. 

2. Title V Operating Permits 

Section 502(a) of the Act prohibits the operation of any “major source” 

without obtaining an operating permit. 42 U.S.C. § 7661a(a). Under Section 

501(2), a “major source” means “any stationary source (or any group of stationary 

sources located within a contiguous area and under common control),” and 

                                                           

3

 In an April 2010 final rule, EPA determined that PSD (and Title V) requirements 

would begin to apply to greenhouse gases on January 2, 2011, the date on which 

EPA’s greenhouse gas emission standards for light-duty motor vehicles took effect. 

Reconsideration of Interpretation of Regulations That Determine Pollutants 

Covered by Clean Air Act Permitting Programs, 75 Fed. Reg. 17,004 (Apr. 2, 

2010) (JA ___), 

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includes any “major stationary source” under Section 302(j), i.e., any source that 

“directly emits, or has the potential to emit,” at least 100 tons per year of any air 

pollutant. 42 U.S.C. §§ 7661(2), 7602(j). The Tailoring Rule phases in the 

applicability of Title V to greenhouse gas emission sources on the same schedule 

as PSD. 

3. State and Federal Permitting Agencies

The PSD and Title V programs are mostly implemented by state permitting 

authorities operating under plans approved by EPA, or as EPA’s delegates under 

federal plans. EPA directly implements permitting programs in areas with no 

approved or delegated plan, and on federal lands and in Indian country.4

 

FACTUAL BACKGROUND 

A. Biogenic CO2 Emissions and the Carbon Cycle 

Plant life takes up CO2 in order to grow, and therefore such “biogenic” 

material can be said to sequester CO2 from the atmosphere while it is alive. When 

plant life dies, or is harvested and burned, its stored CO2 is released, either 

gradually through decomposition, or immediately upon combustion. Center for 

Biological Diversity, et al. Comments (EPA-HQ-OAR-2011-0083-0350.1) (“CBD 

                                                           

4 See 42 U.S.C. § 7410(a)(2)(C) and 40 C.F.R. § 51.166(a) (providing for state 

implementation plans, including PSD programs); 42 U.S.C. § 7410(c) and 40 

C.F.R. § 52.21(a)(1) (providing for federal implementation plans covering PSD). 

See also 40 C.F.R. §§ 70.1(a), 70.4 (state Title V permitting programs) and 40 

C.F.R. §§ 71.1, 71.4 (EPA administration of Title V permitting programs). 

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6

Comments”) at 15-16 (JA ___-___). CO2 released when biomass is burned has the 

identical heat-trapping properties of CO2 released when fossil fuels are combusted. 

As EPA has recognized, once emitted to the atmosphere, “it is not possible to 

distinguish between the radiative forcing associated with a molecule of CO2

originating from a biogenic source and one originating from the combustion of 

fossil fuel.” 76 Fed. Reg. 15,249, 15,254/1 (Mar. 21, 2011) (JA ___). 

Because CO2 from plant matter is released immediately on burning, but 

grown back (if at all) only over time, there is a “debt” period for each ton of carbon 

released but not yet resequestered. This debt persists even if regrowth eventually 

catches up to the sequestration levels that would have been reached had the 

biomass not been harvested but had continued growing. CBD Comments at 16 (JA 

___); Booth Decl. ¶¶ 25, 26, 32; Natural Resources Defense Council Comments 

(EPA-HQ-OAR-2011-0083-0104) (“NRDC Comments”) at 12 (JA ___). For the 

fastest growing biomass crops (e.g., perennial grasses), regrowth can be achieved 

in a year. But for other types of biogenic fuel (e.g., whole trees), the debt period 

may extend for decades or centuries. CBD Comments at 16 (JA ___). When new 

areas of forest or other vegetation are harvested for fuel, total CO2 emissions can 

exceed the amount released directly from the facility where the fuel is burned. One 

reason is that the soil itself stores carbon, and when trees are cut, soil carbon is 

released into the atmosphere as CO2. Id., Exhibit 11 (JA ___-___). 

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The forest products industry asserts that the net CO2 emissions from burning 

any biogenic fuel are zero. See National Alliance of Forest Owners (NAFO) 

Comments (EPA-HQ-OAR-2011-0083-0074) at 3 (JA ___). But EPA itself has 

found that this claim is not supportable: while some biogenic feedstocks may resequester given amounts of CO2 in a short period, the agency acknowledges that 

the scientific evidence demonstrates this is certainly not true for all biogenic fuel. 

Indeed, in the final rule EPA acknowledges the possibility that burning some 

biomass feedstocks actually causes significant net CO2 increases. 76 Fed. Reg. at 

43,498/1, 43,499/1 (JA ___, ___). 

B. Regulation of Greenhouse Gases from Massachusetts v. EPA to the 

Tailoring Rule.

The pathway to the Biomass Exemption starts with the Supreme Court’s 

holding in Massachusetts v. EPA, that CO2 and other greenhouse gases are “air 

pollutants” under Section 302(g) of the Act, 42 U.S.C. § 7602(g), and the Court’s 

conclusion that EPA had to make a science-based determination whether they may 

reasonably be anticipated to endanger public health and welfare. 549 U.S. 497 

(2007). In 2009, EPA made its determination that these pollutants do indeed 

endanger public health and welfare, and in 2010 EPA established emission 

standards for greenhouse gas emissions from motor vehicles under Section 

202(a)(1), 42 U.S.C. § 7521(a)(1). 74 Fed. Reg. 66,496 (Dec. 15, 2009) 

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(Endangerment Finding) and 75 Fed. Reg. 25,324 (May 7, 2010) (Vehicle 

Standards). 

As described above, EPA also determined that greenhouse gases became 

regulated air pollutants on the effective date of the vehicle standards, triggering the 

PSD and Title V permit requirements. Supra at 4, n.3. EPA also issued the 

“Tailoring Rule” to implement PSD and Title V permitting for greenhouse gas 

emission sources in a series of steps covering the largest emitters first. Supra at 3-

4. 

C. The Tailoring Rule’s Treatment of Biogenic CO2

The Tailoring Rule provided that all CO2 directly emitted from a source 

must be counted towards the permitting thresholds, regardless whether it originated 

from burning fossil fuel or biomass. 75 Fed. Reg. at 31,527/2-29/3, 31,590/1-91/1 

(JA ___-___, ___-___). Thus, any source with sufficient direct CO2 emissions 

needs to obtain a PSD permit and meet BACT. In the Tailoring Rule, EPA 

declined to adopt the suggestion by certain industries, including paper mills and 

private forest growers, that all biogenic CO2 was “‘carbon neutral’ (i.e., that 

combustion or oxidation of such materials would cause no net increase in GHG 

emissions on a lifecycle basis)” and should be exempted from PSD and Title V 

permit applicability determinations regardless of their characteristics. Id. at 

31,590/3 (JA ___). Nonetheless, EPA said it would seek further comment on the 

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treatment of biogenic CO2 emissions under the PSD and Title V programs. EPA 

asserted its understanding that “there is flexibility to apply the existing regulations 

and policies regarding BACT in ways that take into account [biomass fuels’] 

lifecycle effects on GHG concentrations.” Id. at 31,591/2 (JA ___).

D. The Proposed Biomass Exemption. 

In March 2011, EPA proposed a sharp change of course. In a notice of 

proposed rulemaking, 76 Fed. Reg. 15,249 (Mar. 21, 2011) (JA ___), EPA granted 

a petition for reconsideration of the Tailoring Rule from NAFO. EPA explicitly 

rejected the claim that all biomass fuels are carbon neutral. See 76 Fed. Reg. at 

15,261/3 (JA ___) (possibility remains that some biomass fuels will have a 

significant impact on the net carbon cycle). Nonetheless, EPA proposed a threeyear categorical exclusion of all “biogenic CO2 emissions” from any applicability 

or BACT determinations required under the PSD and Title V permitting programs. 

Id. at 15,249/3 (JA ___). EPA also said it intended to undertake a subsequent 

rulemaking, during the three-year exemption period, on how biogenic CO2

emissions “should be treated and accounted for in PSD and Title V permitting” 

after that period. Id. at 15,251/3 (JA ___). 

 EPA opaquely asserted that, absent the proposed exemption, “there would 

be significant and unique complexities” related to “the unique characteristics and 

attributes of biogenic CO2 feedstocks,” leading to “additional permitting burden in 

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terms of time and resource requirements” beyond that previously anticipated in the 

Tailoring Rule. Id. at 15,259/3 (JA ___). EPA did not expressly state where those 

asserted burdens and complexities would be experienced. The Tailoring Rule 

required no consideration of lifecycle emissions in applicability decisions (i.e., 

when determining if a source emits sufficient CO2 to require a permit). And EPA 

further stated its view that “interim guidance” on BACT determinations “will help 

alleviate some of this burden.” Id.; see also 75 Fed. Reg. at 31,591/2 (JA ___) 

(Tailoring Rule on consideration of biomass lifecycle emissions in BACT for 

greenhouse gases). 

Regardless, in the proposed Exemption, EPA stated that it believed it had the 

authority to exempt all biogenic CO2 emissions from PSD applicability and from 

BACT: “EPA believes it has the authority to exclude biogenic CO2 emissions 

from the PSD and Title V requirements for the proposed three-year deferral period 

and will be exploring whether a permanent exemption is permissible for at least 

some and perhaps all types of feedstocks.” 76 Fed. Reg. at 15,260/3 (JA ___). 

EPA acknowledged, however, that 

since the relevant provisions of the Act apply to “any air pollutant” or any 

“air pollutant subject to regulation,” the terms of the [Clean Air Act] suggest 

that the PSD and Title V requirements should apply to CO2 emissions from 

bioenergy or other biogenic sources in the same manner as they apply to 

emissions of CO2 from any other type of source, since such emissions are 

constituents of the regulated pollutant [greenhouse gases]. 

 

Id. 

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 After this decidedly brief reference to the statutory language, EPA turned 

immediately to the de minimis doctrine. EPA pointed to examples of prior de 

minimis determinations exempting sources from PSD permit requirements on the 

basis that compliance would yield only trivial benefits. In each prior example, 

however, the agency’s trivial benefits analysis bore strictly on emissions coming 

directly from the source in question. See id. at 15,261/2 (JA ___). In this proposal, 

however, EPA asserted that it could consider not only the direct CO2 emissions 

from biomass-burning sources, but also the absorption of CO2 by plants growing 

tens or hundreds of miles away, even if controlled by some other entity. 

On the factual side, EPA claimed it had “sufficient information” to conclude 

that “at least some biomass feedstocks that may be utilized to produce energy have 

a negligible impact on the net carbon cycle.” Id. at 15,261/2 (emphasis added) (JA 

___). As an example, EPA suggested “residue material (e.g., sawdust from milling 

operations) that would have decomposed under natural circumstances” over 10-15 

years,” and asserted that “the gain from regulating emissions from combustion of 

this feedstock for bioenergy could be considered to be trivial.” Id. at 15,261/2-3 

(emphasis added) (JA ___). EPA did not further describe what “sufficient 

information” supported this conclusion. Instead, EPA asserted that future 

scientific assessment might identify other such feedstocks: 

It appears that the potential may exist for EPA to determine that other 

types of biomass feedstocks would have a negligible impact on the net 

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carbon cycle impact after further detailed examination of the science 

associated with biogenic CO2 emissions. Thus, if EPA were to require 

all bioenergy facilities to limit emissions of CO2 before this 

assessment is complete, it may later determine that such actions have 

yielded trivial gain. 

Id. at 15,261/3 (emphasis added) (JA ___). Finally, EPA made clear its 

understanding that other biogenic feedstocks can have non-trivial impacts: 

[T]he possibility also remains that more detailed examination of the 

science of biogenic CO2 will demonstrate that the utilization of some 

biomass feedstocks for bioenergy production will have a significant 

impact on the net carbon cycle, making application of the PSD 

program requirements to such emissions necessary to fulfill 

Congressional intent. 

Id. (emphasis added). 

EPA then considered three alternatives to continuing the Tailoring Rule 

without change (i.e., alternatives to counting only direct emissions when 

determining whether PSD permits are required and to addressing lifecycle factors, 

if at all, only in the BACT stage). First, the agency could “apply PSD and Title V 

to all facilities with biogenic CO2 emissions that emit at or above the Tailoring 

Rule thresholds, but without making any effort to take into account net carbon 

cycle impacts.” Id. at 15,262/2 (JA ___). This would have reduced the 

administrative burdens of the Tailoring Rule, by eliminating consideration of the 

lifecycle characteristics of biogenic CO2 in BACT determinations. EPA, however, 

rejected this alternative because: 

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we believe that it is conceivable that as a result of the scientific 

examination of biogenic CO2 emissions [to be conducted over the next 

three years], we could conclude that the net carbon cycle impact for 

some biomass feedstocks is negligible. Accordingly, this could result 

in regulation that yields trivial gain as previously discussed. 

Id. (emphasis added). In other words, EPA preferred exempting all biomassburning sources from permitting, however large the volume of their direct or net 

emissions, in order to avoid requiring permits for any sources that might later be 

considered to have de minimis impacts based on off-site phenomena. 

As a second alternative, EPA said it could base permit applicability on caseby-case determinations of the lifecycle CO2 emissions of each biomass facility, 

rather than its direct CO2 emissions. See id. at 15,261/3-15,262/2 (JA ___-___). 

Even though this option would distinguish between biogenic feedstocks with 

positive and negative lifecycle CO2 impacts, EPA asserted that it would impose too 

heavy an administrative burden. Here EPA mixed administrative burden and de 

minimis rationales: “[G]iven the potential that the utilization of at least some 

biomass feedstocks may have a negligible impact on the net carbon cycle, engaging 

in this type of burdensome analysis may not be an optimal use of the limited 

resources of PSD and Title V permitting authorities.” Id. at 15,262/2 (emphasis 

added) (JA ___). 

 Even before seeking comment, EPA rejected both of these alternatives in 

favor of a third option. The agency instead proposed a blanket three-year 

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exemption under which no biomass-burning sources – even those with clear net 

adverse carbon cycle impacts – would undergo PSD or Title V permitting. Id. at 

15,262/1 (JA ___). 

E. Comments on the Proposed Exemption

EPA received numerous comments opposing the proposed exemption. For 

example, the Center for Biological Diversity (CBD), the Natural Resources 

Defense Council (NRDC), and others told EPA that it lacked legal authority to 

create an exemption from PSD and Title V applicability based on off-site, “net” 

lifecycle emissions. See, e.g., CBD Comments at 6-8 (JA __-___). These and 

other commenters also submitted that the exemption was scientifically unwarranted 

because combusting many biomass feedstocks will in fact increase CO2 emissions, 

even considered on a lifecycle basis. Id. at 6, 12, 14-16 (JA ___, ___, ___-___); 

see also NRDC Comments at 1, 11-14 (JA ___, ___-___). CBD stated that “the 

most recent and thorough of the studies [submitted to EPA] overwhelmingly 

demonstrate that biomass burned for energy generation is not ‘always carbon 

neutral’.” CBD Comments at 12 (JA ___). In fact, there are “greater carbon 

emissions per unit energy from biomass than fossil fuels,” and scientists have 

concluded that “‘using standing trees for bioenergy immediately transfers carbon 

to the atmosphere ... increasing overall [GHG] emissions for several decades.’” 

Id. at 16 (JA ___). 

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CBD also cited studies contradicting EPA’s suggestion that combusting 

“waste” feedstocks expected to decompose within 10-15 years would have a de 

minimis impact. Id. at 14, 22-25 (JA ___, ___-___). NRDC and others submitted 

that EPA currently had the tools to limit the exemption, and that “the science does 

not justify” exempting feedstocks like whole trees that “are extremely likely to 

increase net CO2 emissions for more than 20 years.” See NRDC Comments at 11-

14 (JA __-___). 

EPA also received comments from states undercutting the agency’s 

contention that a blanket exemption was needed to avoid unmanageable 

administrative burdens. For example, Arkansas expected only “one or two” PSD 

permits “possibly involving biomass sources” per year over the next three years, 

and did not anticipate a “drastic increase” in biomass Title V permits. Arkansas 

Department of Environmental Quality Comments (EPA-HQ-OAR-2011-0083-

0033) at 2 (JA ___). Florida found it “difficult to predict” how many permits it 

would need to process. Florida Department of Environmental Protection 

Comments (EPA-HQ-OAR-2011-0083-0038) at 2 (JA __). Georgia identified five 

pending applications, but stated that it was “uncomfortable commenting on future 

resource constraints; [because] it would be speculation only, and not based on 

facts.” Georgia Department of Natural Resources Comments (EPA-HQ-OAR2011-0083-0094) at 1 (JA __). Minnesota expected only one to two applications 

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over the Exemption Rule time frame, and identified no pending applications. 

Minnesota Pollution Control Agency Comments (EPA-HQ-OAR-2011-0083-0102) 

at 1 (JA __). Oklahoma anticipated “no significant increases or decreases” in 

permit applications over the next three years. Oklahoma Department of 

Environmental Quality Comments (EPA-HQ-OAR-2011-0083- 0037) at 1 (JA __). 

Oregon expected only three to five biomass power plant applications over the same 

period. Oregon Department of Environmental Quality Comments (EPA-HQ-OAR2011-0083-0058) (JA __). Pennsylvania found itself “unable to advise EPA, at 

this time, of the estimated number and type of biomass sources that will be 

operating in Pennsylvania within the next three years.” Pennsylvania Department 

of Environmental Protection Comments (EPA-HQ-OAR-2011-0083-0135) at 2 (JA 

__). South Carolina, while currently processing four applications, nonetheless 

found it “impossible to predict how many biomass applications will be received in 

the future.” South Carolina Department of Health and Environmental Control 

Comments (EPA-HQ-OAR-2011-0083-0124) at 3 (JA __). 

F. The Final Exemption

On July 20, 2011, EPA adopted the Biomass Exemption as proposed, i.e. ̧ a 

blanket exemption for sources burning any kind of biomass fuels, without 

differentiation, from all PSD or Title V permitting requirements. 76 Fed. Reg. 

43,490 (JA ___). The agency asserted once again that determining the net carbon 

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cycle impact of biogenic emissions is a complex and uncertain undertaking, and 

“would therefore entail extensive workload requirements by many of the 

permitting authorities.” Id. at 43,496/1. EPA also restated its belief that it has 

authority to undertake a future rulemaking to exempt sources of biogenic CO2

permanently, based on lifecycle considerations. See 76 Fed. Reg. at 43,498/2 (JA 

___). In addition, EPA added an argument that the Exemption was supported by 

the “one-step-at-a-time doctrine.”5

 Id. at 43,497/1 to 43,498/2 (JA ___-___). 

In neither the final Exemption notice nor the response-to-comments 

document did EPA provide any substantial responses to the key comments 

highlighted above. Notably, EPA provided no cogent response to comments 

disputing the authority of permitting agencies to look beyond the direct emissions 

of biomass-burning sources in determining whether such sources require PSD or 

Title V permits. EPA provided no substantive response to comments from states 

calling into question the seriousness of the administrative burdens they would face 

addressing biomass-burning sources. And EPA did not provide any substantive 

response to comments demonstrating the adverse lifecycle CO2 emissions from 

burning various biomass feedstocks, or the adverse public health consequences of 

the Exemption. 

                                                           

5

 In the proposal, EPA had specifically found this doctrine irrelevant. 76 Fed. Reg. 

at 15,255/3 n.13 (JA ___). 

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Instead, in rote fashion EPA repeated a boilerplate response to each 

substantive comment, reasserting belief in its authority and views about the 

complexity of the science issues involved, and saying that it would deal with all 

such issues in its future rulemaking. See, e.g., Summary of Public Comments and 

Responses (EPQ-HQ-OAR-2011-0083-0359) at 67, 68, 71, and 94. (JA ___-___, 

___, and ___) 

Petitioners filed these petitions for review.

SUMMARY OF ARGUMENT 

The Clean Air Act requires all new and modified stationary sources to obtain 

preconstruction and operating permits if they have the potential to emit CO2 or 

other greenhouse gases into the atmosphere in amounts exceeding the thresholds 

set forth in EPA’s June 2010 Tailoring Rule. The Biomass Exemption challenged 

here creates a broad and unjustified exemption to that requirement. Under the 

Tailoring Rule, a biomass-burning source would have triggered PSD and Title V 

permitting if the facility itself emitted sufficient CO2. Under the Exemption, the 

same facility now escapes the permitting programs altogether. Under the Tailoring 

Rule, such a facility would have had to meet BACT for CO2 and any other 

regulated pollutant such as fine particles or nitrogen oxides it emitted in significant 

amounts. Instead, these facilities are now exempt from BACT. And even facilities 

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that trigger PSD and Title V because they emit sufficient amounts of other air 

pollutants no longer need to meet BACT for their biogenic CO2 emissions. 

The Exemption is contrary to law and arbitrary and capricious. EPA failed 

to identify any statutory authority affirmatively supporting the Exemption, nor has 

it identified any gap or ambiguity in the language of the statute permitting it. 

Additionally, EPA failed to justify the Exemption under the doctrines on which it 

does rely. 

First, EPA invoked the “administrative necessity” doctrine, but it failed to 

carry its heavy burden of demonstrating that considering biogenic CO2 emissions 

in the PSD and Title V permitting processes would create administrative 

difficulties rising to the level of impossibility. Nor did EPA show that the Biomass 

Exemption was narrowly tailored to excuse statutory compliance only to the degree 

demanded for administrability. 

Second, EPA improperly invoked the de minimis doctrine in several ways. 

EPA did not show that a de minimis exemption from permitting based on 

“lifecycle” CO2 emissions is consistent with the Clean Air Act. The agency 

identified no affirmative statutory authority for subtracting distant off-site CO2

absorption from the facility’s own CO2 emissions when determining whether the 

facility needs a permit, and no statutory gap or ambiguity from which such 

authority could reasonably be inferred. For these reasons, a de minimis exemption 

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based on lifecycle CO2 emissions is contrary to the statute. Further, EPA 

exempted all biomass-burning sources, even though the agency claimed to have 

data showing trivial lifecycle emissions for only some such sources. EPA put off 

all relevant scientific and factual determinations to a future rulemaking, and thus 

failed to demonstrate in this rulemaking that any of the emissions it exempted from 

the permitting programs were truly de minimis or trivial. In fact, EPA admitted 

that some types of biomass fuel may be significant net CO2 emitters, e.g., fuels 

whose emissions when burned add to atmospheric CO2 for decades or centuries, 

regardless of what countervailing off-site factors are considered. 

Third, EPA failed to show an independent basis for invoking the “one-stepat-a-time” doctrine when the grounds for administrative necessity and de minimis 

exemptions are lacking. 

For these reasons, the Biomass Exemption is “arbitrary, capricious, an abuse 

of discretion, and otherwise not in accordance with law; [and] ... in excess of 

statutory ... authority, or limitation.” 42 U.S.C. § 7607(d)(9)(A), (C). It must be 

vacated and remanded.

STANDING 

Petitioners have standing to challenge EPA’s Biomass Exemption because 

their members’ health, recreational, and aesthetic interests are harmed by the 

additional air pollution, forest degradation, and harm to wildlife that have occurred 

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and will occur as a result of exempting biomass-burning power plants and 

industrial facilities from the PSD permit program, and by the loss of procedural 

opportunities to advocate for strong pollution controls and alternatives to 

construction of those facilities. These harms are the direct result of EPA’s decision 

to exempt biogenic CO2 from greenhouse gas permitting, and so reversing the 

Biomass Exemption would remedy these injuries. 

To demonstrate Article III standing, Petitioners must establish that at least 

one of their members has standing to sue in his or her own right, that Petitioners 

seek to protect interests that are germane to their organizational purposes, and that 

the participation of individual members is not needed. See Sierra Club v. EPA, 

292 F.3d 895, 898 (D.C. Cir. 2002). A member has standing if he or she would 

suffer an injury-in-fact that is both fairly traceable to EPA’s action and redressable 

by a favorable decision of the court. Lujan vs. Defenders of Wildlife, 504 U.S. 555, 

560 (1992). 

Petitioners meet these requirements. They are nonprofit organizations whose 

purposes include protecting public health and the environment from air pollution, 

including air pollution from biomass-burning facilities, and preventing degradation 

of forest ecosystems, including deterioration due to the extraction of biomass fuels 

consumed by such facilities. See Siegel Decl. ¶¶ 4, 10-13; Lopez Decl. ¶¶ 4-5; 

Harwood Decl. ¶¶ 3, 9-11; Houston Decl. ¶ 6; Reed Decl. ¶¶ 5, 9-11; Quaranda 

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Decl. ¶ 2; Davis Decl. ¶¶ 4-5; Hitner Decl. ¶¶ 5-6. Petitioners have associational 

standing on behalf of their members who have been, and will continue to be, 

injured by EPA’s action as explained below. The facts supporting these injuries, 

their traceability to EPA’s Exemption, and their redressability by reversing that 

Exemption are evident in the record of this rulemaking and in the declarations 

submitted with this brief. 

Biomass combustion results in harmful air pollutants such as CO2, 

particulate matter (PM), nitrogen oxides (NOx). While the former contributes to 

climate change, the latter two are associated with a host of respiratory and cardiac 

problems. See Sahu Decl. ¶ D.1. In addition, increased demand for biomass 

feedstocks will contribute to an increased pressure for harvesting, including 

logging and even clearcutting. See Booth Decl. ¶¶ 16 and 32; Plantinga Decl. ¶ 7.6

 

This increased logging is reasonably expected to adversely affect forest habitat and 

other forest-related environmental values, Booth Decl. ¶ 17, as well as to increase 

                                                           

6 See also Dogwood Alliance Comments (EPA-HQ-OAR-2011-0083-0119) 

(“Dogwood Comments”) at 2 (JA ___) (logging rates in the Southeastern United 

States could double in response to increased demand for biomass fuel) and 4 (JA 

___ and ___); Natural Resources Defense Council (EPA-HQ-2011-0083-0104) 

(“NRDC Comments”) at 19-23 (JA __-___) and EPA-HQ-OAR-2011-0083-0104 

at 19-23 (JA ___-___) and The Wilderness Society Comments (EPA-HQ-OAR2011-0083-0065) at 2 (JA ___); Wild Earth Guardians Comments (EPA-HQ-OAR2011-0083-0131) at 1-2 (JA ___-___) (Industry information and studies based on 

U.S. Forest Service data similarly show that logging residues are insufficient to 

supply proposed biomass facilities in other regions across the country – 

necessitating an increase in whole-tree logging). 

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atmospheric CO2, id. ¶¶ 20-30. Both air pollution and forest harms will increase as 

a result of exempting biomass-burning facilities from PSD permitting. 

As explained above, all new or modified major emitting facilities must 

obtain preconstruction permits that comply with the PSD program’s BACT and 

public participation requirements. If a biomass plant is a major emitting facility 

because of its CO2 emissions, it must comply with BACT for each other regulated 

pollutant, including PM2.5, and NOx, that it has the potential to emit above EPAestablished significance thresholds. See 42 U.S.C. § 7475(a)(4); 40 C.F.R. §§ 

51.166(j), 52.21(j); see also Sahu Decl. ¶¶ D.2-3 and 8-10. EPA has established 

significance thresholds of 10 tons per year for fine particulate matter (PM2.5) and 

40 tons per year for NOx. See 40 C.F.R. §§ 51.166(j)(2), (3), 52.21(j)(2), (3); 

51.166(b)(23), 52.21(b)(23). A typical biomass-burning facility emitting sufficient 

biogenic CO2 to require a PSD permit under the Tailoring Rule will also emit more 

than 10 tons per year of PM2.5 and 40 tons per year of NOx, and thus would have 

required BACT for those two pollutants. See Sahu Decl. ¶¶ E.1.i and ii, E.2. 

Under the Exemption, however, the same facility can be constructed without 

BACT limits for those two pollutants and others. The additional pollution from 

such facilities harms Petitioners’ members.7

                                                           

7

 Many states also issue permits under state law for new sources that do not require 

PSD permits. However, such permits generally do not impose emission limits as 

stringent as BACT. Sahu Decl. ¶ 6. A facility exempted from BACT and other 

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If a biomass-burning facility requires a PSD permit, it also will be subject to 

the public participation requirements of Section 165(a)(2), giving Petitioners’ 

members the opportunity to advocate for stringent BACT limits and to press for 

alternatives. The alternatives analysis is a “distinct” and broader inquiry than 

whether a particular permit complies with BACT. See Sierra Club v. EPA, 499 

F.3d 653, 654-55 (7th Cir. 2007). Consideration of the “need” for a facility is a 

proper part of the alternatives analysis. In re Prairie State, PSD Appeal No. 05-05, 

13 E.A.D. 1, 31 (EAB 2006). A permitting agency thus may deny a PSD permit on 

the basis of public input showing the facility is not needed or that any need can be 

met by a smaller plant, or that there are alternative designs or methods of operation 

that are better for air quality. See id. 

A permitting authority also must consider the “environmental ... impacts” of 

control options when determining BACT. See Section 169(3), 42 U.S.C. § 

7479(3). In the case of a facility intended to burn whole trees, for example, 

permitting agencies must consider, and members of the public have the opportunity 

to comment on, adverse environmental impacts to the forests from which the trees 

will be harvested. 

                                                                                                                                                                                               

PSD permit requirements under EPA’s Biomass Exemption would be allowed to 

emit more pollution under such a state law permit. That difference in pollution 

harms Petitioners’ members. 

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By exempting proposed biomass-burning facilities from PSD permit 

requirements, EPA has deprived Petitioners’ members of these procedural 

opportunities to advocate lack of need for a proposed facility or unacceptable 

environmental impacts. 

Members of Petitioners’ organizations live, work, or recreate in the vicinity 

of specific biomass-burning facilities that were permitted as minor sources but did 

not commence construction by July 1, 2011,8

 or were proposed after July 1, 2011 

and obtained minor source permits in direct reliance on the Biomass Exemption, 

and so in each case are currently exempt from PSD permit requirements as the 

result of the Biomass Exemption. A non-exclusive list of such projects is provided 

in the declaration of expert Ron Sahu. Sahu Decl. ¶¶ E.1 and E.2, Table 1. These 

members have already been harmed by the loss of procedural opportunities to 

question the need for the facilities or to advocate for more effective air pollution 

controls. They will also be harmed by exposure to higher pollution levels if the 

plants are constructed without BACT. If the Biomass Exemption is reversed, of 

these facilities, those which have not yet commenced construction will have to 

                                                           

8

 As EPA explained in the Tailoring Rule, PSD permits would be required of 

facilities that (a) obtained minor source permits prior to July 1, 2011 and (b) would 

have the potential to emit above the greenhouse gas thresholds for Step 2, but (c) 

failed to commence construction by that date. 75 Fed. Reg. at 31,594/1-2 (JA ___-

___); see also 42 U.S.C. §7475(a)(1), (4) (no major emitting facility may construct 

without a permit that complies with BACT for each pollutant subject to 

regulation). 

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comply with PSD permit requirements they previously avoided; even if the plants 

commence construction under the illegal Exemption, upon a reversal of the 

Exemption they can be required to source more sustainably grown fuel and/or 

comply with more stringent limits requiring full operation and maintenance of their 

pollution control equipment. This will directly redress the harms these members 

have suffered.9

The member declarations demonstrate that specific members are currently 

living, working, or recreating near these proposed plants and are suffering harms 

redressable by reversal of the Exemption. See, e.g., B. Laffitte Decl. ¶¶ 8 (“Given 

that my farm is immediately adjacent to [the proposed Allendale plant], I am 

extraordinarily concerned that construction of this facility without more effective 

air pollution control devices will be harmful to my health”), and 10 (if Allendale 

had gone through PSD, “the plant’s air permit would allow the plant to emit less 

PM, NOx, and CO”); Colacino Decl. ¶¶ 5-7 (lives near the Klamath Falls 

                                                           

9 These facts demonstrate that Petitioners’ members are squarely within the zone of 

interest protected by the PSD program, which is aimed at reducing air pollution 

while protecting other environmental values. See, e.g., 42 U.S.C. § 7470 (purpose 

of Part C is to protect public health and welfare from adverse effects of air 

pollution); id. at § 7479(3) (BACT requires permitting authority to take into 

account environmental impacts); Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 

1060, 1074-75 (D.C. Cir. 1998) (court must “consider the purposes of the specific 

statutory provision that is at issue..., read in the context of the statutory scheme as 

a whole”); Animal Legal Defense Def. Fund v. Glickman, 154 F.3d 426, 444 (D.C. 

Cir. 1998) (zone inquiry is “generous and relatively undemanding”).

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Bioenergy plant and states that “we believe and fear that [our hiking, dog-walking, 

and bird-watching] activities will be diminished by the Klamath Falls Bioenergy 

plant, and that they will no longer be safe and healthy activities if the biomassburning plant is sited here without stringent controls”; “My wife is prone to 

asthma, so is especially affected by air pollution”; “I am concerned about the 

effects that additional air pollution from the Klamath Falls Bioenergy plant will 

have on my health...”), 11 (if the Klamath Falls Bioenergy plant had to comply 

with BACT, “there would be less health-threatening pollution in my community”), 

and 13 (alternatives such as energy efficiency “would reduce air pollution from 

burning biomass at the plant, and also from the many trucks that would drive 

through the community to deliver fuel to the plant.”); Ludtke Decl. ¶¶ 5 (“I suffer 

from asthma. My husband uses an inhaler while exercising due to reactive lung 

tissue.... [M]y husband and I live approximately 2 miles from [the proposed 

Concord Biomass Plant], and I am concerned that construction of this facility 

without the appropriate air pollution control mechanism will be harmful to my and 

my husband’s health”) and 10-12 (“I am familiar with air pollution issues because 

I, and other members of my family, have engaged in endurance sporting activities 

for 30 years or more”; “my husband, daughter, and I all suffer from impaired 

respiratory function that will be exacerbated by additional air pollution from this 

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plant.”); see also Booher Decl. ¶¶ 7, 10-15 (harms from the Wadley plant); Govus 

Decl. ¶¶ 5, 16-20. 

The declaration of expert Ron Sahu demonstrates that the exemption from 

BACT requirements deprives Petitioners’ members of the benefits of stringent 

BACT limits, notably for harmful particulate matter and nitrogen oxides, Sahu 

Decl. ¶¶ D.1 (health effects of air pollutants) and E.1-E.2 (describing lower limits 

for biomass power plants permitted as minor sources that would likely result from 

PSD permitting), which will result in their exposure to higher levels of harmful 

pollution and restrictions on their activities. 

The Exemption also harms members who recreate in or enjoy the forests 

from which fuel for the facilities is harvested, as they are deprived of the 

opportunity to raise concerns about impacts on forests and the opportunity to 

mitigate those impacts through alternatives or BACT. Colacino Decl. ¶¶ 5 

(describing hiking in Winema National Forest near Klamath Falls) and 8 (“I also 

am concerned that the Klamath Falls Bioenergy Plant will harm the forests and 

wildlife areas that my wife and I use and enjoy” because the plant intends to source 

woody biomass from nearby public lands); Nowicki Decl. ¶¶ 11-17 (exemption 

rule will increase demand for biomass fuels from plants in Amador, Calaveras and 

El Dorado Counties, resulting in more intensive logging and harm to forest habitat 

and wildlife in Eldorado, Tahoe, and Stanislaus National Forests where he 

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recreates); see also Booth Decl. ¶¶ 17-19 (exemption rule will increase demand for 

biomass fuels, resulting in more intensive logging and harm to forest habitat and 

wildlife); Plantinga Decl. ¶¶ 5-7 (exemption will result in decreased costs of 

sourcing fuel from whole trees, which in turn will result in trees being harvested 

earlier than without the Exemption). In particular, the Exemption prevents 

Petitioners’ members from seeking CO2 BACT limits that restrict the plants to 

combusting only sustainably harvested biomass feedstocks with low lifecycle 

carbon emissions, instead of burning fuel from whole trees. See Colacino Decl. ¶ 

12 (if the Klamath Falls plant had to comply with BACT for CO2, it might have to 

comply with a “requirement to burn only more sustainably grown fuel from 

sources other than the forests that I and my wife use and enjoy.”) 

These injuries are concrete and actual or imminent: the Biomass Exemption 

has already allowed proposed biomass-burning facilities to avoid the public 

process for major sources and, if unremedied, will allow the facilities to be 

constructed and operated (a) emitting higher levels of air pollution to which nearby 

members will be exposed, and (b) running on fuels that degrade forests that 

members use and enjoy. These injuries are fairly traceable to EPA’s Exemption. 

Were it not for the Exemption, these plants would be subject to BACT and the 

analysis of needs and alternatives. These injuries can be reduced, and are therefore 

redressable, by vacating or remanding the Exemption.

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ARGUMENT 

I. STANDARD OF REVIEW 

Under section 307(d)(9) of the Clean Air Act, this Court may reverse EPA‘s 

action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law” or “in excess of statutory jurisdiction, authority, or 

limitations, or short of statutory right.” 42 U.S.C. § 7607(d)(9)(A), (C). 

II. THE ADMINISTRATIVE NECESSITY DOCTRINE DOES NOT 

SUPPORT THE BIOMASS EXEMPTION 

To justify the three-year Biomass Exemption, EPA asserted that it was 

necessary to take a “step back” from the Tailoring Rule because considering 

biogenic CO2 emissions under that rule had proven to be more “complex[ ]” and 

“uncertain[ ]” than anticipated. 76 Fed. Reg. at 43,496/1-3 (JA ___). But the 

“administrative necessity” doctrine imposes a heavy burden on EPA. It must show 

that complying with the statute is literally impossible, not merely complicated. 

EPA failed to carry its burden of showing that the Tailoring Rule created 

“impossible” burdens for permitting agencies addressing facilities emitting 

biogenic CO2. Further, the “administrative necessity” doctrine prohibits an agency 

from carving out an exemption any wider than needed to resolve the asserted 

impossibility. Even if EPA had demonstrated that meeting the otherwise 

applicable statutory requirements was an impossibility, the exemption it created 

was far broader than necessary to address the issue. 

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A. The Administrative Necessity Doctrine Allows Departure From Statutory 

Commands Only Under Very Narrow Circumstances 

Categorical exemptions from express statutory requirements on grounds of 

“administrative necessity” are disfavored. Ala. Power, 636 F.2d at 358. This 

Court has emphasized that EPA bears a “heavy burden” to demonstrate 

administrative “impossibility,” lest government officials “seize on a remedy made 

available for extreme illness and promote it into the daily bread of convenience.” 

Id. at 359; see also Sierra Club v. EPA, 719 F.2d 436, 462-63 (D.C. Cir. 1983) 

(agency must make a rigorous showing of administrative impossibility). 

This Court noted in Alabama Power that courts have upheld “streamlined” 

procedures only where strict statutory compliance “would, as a practical matter, 

prevent the agency from carrying out the mission assigned to it by Congress,” or 

“when practical considerations make it impossible for the agency to carry out its 

mandate.” 636 F.2d at 358-359 (emphasis added). The Court also emphasized that 

“there exists no general administrative power to create exemptions to statutory 

requirements based upon the agency’s perceptions of costs and benefits.” Id. at 

357. 

Later decisions have confirmed the extremely limited scope of 

“administrative necessity” exemptions and the heavy burden EPA bears. In 

Environmental Defense Fund v. EPA, the agency failed to show that it “[could not] 

carry out” relevant “statutory commands” to regulate an entire class of sources of 

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polychlorinated biphenyls, and thus could not sustain an exemption for low 

concentrations on “administrative necessity” grounds. 636 F.2d 1267, 1283 (D.C. 

Cir. 1980); see also Sierra Club v. EPA, 719 F.2d at 462-63 (predictions that 

plume rise determinations would be “difficult” and fell “far short”). Moreover, the 

doctrine does not allow an agency to deviate from the statute any more than the 

minimum extent necessary. See, e.g., Pub. Citizen v. FTC, 869 F.2d 1541, 1556 

(D.C. Cir. 1998) (administrative necessity doctrine creates only a “narrow range of 

inherent discretion in an agency to create case-by-case exceptions in order to come 

within the practical limits of feasibility” (emphasis original)); see also Mova 

Pharm. Corp., 140 F.3d at 1069 (agency faulted for “embark[ing] upon an 

adventurous transplant operation in response to blemishes in the statute that could 

have been alleviated with more modest corrective surgery”). 

EPA has entirely failed either to carry its initial burden to show 

administrative impossibility or to fashion the narrowest exemption necessary to 

preserve the statute’s administrability. 

B. EPA Failed to Demonstrate that There Are Impossible Burdens Associated 

With Regulating Biogenic CO2 Under the Tailoring Rule 

EPA failed to show that treating facilities emitting biogenic CO2 just like 

other CO2-emitting sources under the Tailoring Rule created “impossible” burdens 

for permitting agencies. While claiming that complexity and uncertainty 

associated with accounting for lifecycle CO2 emissions from biomass fuels would 

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“entail extensive workload requirements by many of the permitting authorities,” 76 

Fed. Reg. at 43,496/1 (JA ___), EPA did not specify where exactly in the 

permitting process the feared complexity and uncertainty would come into play. 

Nevertheless, the Agency promulgated a broad exemption from the phrase “subject 

to regulation,” affecting PSD applicability (decisions about which sources required 

permits) for plants burning all kinds of biomass. This runs counter to both the 

Tailoring Rule and 30 years of practice in implementing the PSD program, under 

which applicability decisions are made strictly on the basis of a source’s own 

emissions and without regard to the lifecycle emissions of its fuel. 

EPA also noted in the Tailoring Rule that it believed that for sources burning 

biomass “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. 31,591/2 (JA ___). Yet in the Biomass Exemption 

EPA now backs away even from this alternative approach in favor of a broad 

exemption from PSD applicability. 

EPA’s argument boils down to an assertion that regulating sources of 

biogenic CO2 emissions, including having to make BACT determinations taking 

into account lifecycle fuel characteristics would paralyze the permitting agencies. 

The record, however, severely undercuts EPA’s contentions. A number of state 

permitting agencies – the very permitting authorities EPA wishes to spare from 

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paralysis – said in comments that they expected only a small number of new and 

modified biogenic CO2 sources to require PSD permits under the Tailoring Rule, 

and that they could handle the load. Other state agencies offered no projections of 

the number of such permits they anticipated or reasons why they could not 

manage. See supra at 15-16. No state agency asserted that it faced an impossible 

task in considering plants over the Tailoring Rule thresholds with biogenic 

emissions. 

Mere assertions that the burden of permitting biogenic CO2 sources has 

increased are patently insufficient to establish administrative impossibility. Sierra 

Club, 719 F.2d at 462-63; Envtl. Def. Fund, 636 F.2d at 1283. A rational 

assessment of that burden must address two components: How difficult would the 

required BACT determinations be, were a PSD permit required, and how many 

such determinations must be made. EPA provided no data on either component. 

EPA did not quantify its statements about the difficulty of making individual 

BACT determinations for biogenic CO2 emissions, or explain how and why this 

changed between the Tailoring Rule and the Biomass Exemption. Nor did EPA 

address whether the number of biomass sources presenting themselves for 

permitting had increased or decreased. Without such information, EPA could 

make no rational assessment of the overall burden, let alone demonstrate 

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impossibility. Without such analysis, there is no record showing that proceeding 

under the Tailoring Rule approach would result in “impossible” burdens. 

EPA’s thin factual assertions in this rulemaking concerning the burden of 

permitting biomass-burning sources stand in stark contrast to the agency’s robust 

showing in the Tailoring Rule regarding the burdens of permitting tens of 

thousands – or even millions – of additional sources. See Final Tailoring Rule, 75 

Fed. Reg. 31,534/3-41/2 (detailed, quantitative examination of the number of new 

sources, workload hours, and dollar costs associated with immediately requiring 

PSD and Title V permits for all greenhouse gas sources above statutory thresholds, 

and for less inclusive alternatives) (JA ___-___). Likewise, EPA’s showing here is 

a far cry from the “thousands” of case-by-case determinations that the Alabama 

Power Court found persuasive in backing up a claim of administrative necessity. 

636 F.2d. at 358 (citing Permian Basin Area Rate Cases, 390 U.S. 747, 777 

(1968)). 

C. EPA Failed to Justify Rejecting the Narrower Alternative of Ignoring 

Lifecycle Factors at the BACT Stage During the Three-Year Exemption 

Period 

Even if EPA had validly established the administrative impossibility of 

making BACT determinations for biogenic CO2 emissions sources under the 

original Tailoring Rule, the agency would not have been justified in issuing a 

blanket exemption that excused all biogenic CO2 emissions from counting towards 

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permit applicability. As noted above, the administrative necessity doctrine does 

not allow agencies to hack out broad exemptions from statutory commands but 

rather tolerates deviations from the statute only to the extent necessary to avoid the 

identified administrative impossibility. See Pub. Citizen v. FTC, 869 F.2d at 1556. 

Here, EPA acknowledged that it could have resolved any administrative overload 

simply by carrying out PSD and Title V permitting for biomass-burning sources 

“without making any effort to take into account net carbon cycle impacts” at either 

the applicability or BACT stages. 76 Fed. Reg. 43,496/3 (JA at ___). 

The agency offered no legally adequate reason for rejecting this option. 

EPA said only that “this [alternative] could result in regulation of sources with 

trivial or positive impacts on the net carbon cycle” during EPA’s three-year 

analytical period. Id. There is no case law allowing EPA to upgrade a weak 

showing of administrative burden into a demonstration of impossibility by 

claiming that some sources – even though administratively feasible to cover – may 

in the end have de minimis impacts. In other words, EPA hacked a total exemption 

from the Act because it feared that some regulation under this alternative might 

have little benefit – a cost-benefit approach this Court has expressly prohibited. 

Pub. Citizen, 869 F.2d at 1556. 

Moreover, EPA did not even consider the competing evil of its sweeping 

categorical exemption – namely, that it gives complete regulatory immunity to all

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biogenic CO2 sources, including those with adverse impacts on the net carbon 

cycle. Nowhere did EPA provide factual support for its assertions that requiring 

PSD permits for some potentially trivial net CO2 emitters would be more harmful 

than exempting biomass-burning sources that in fact increase atmospheric carbon 

pollution. Nor did EPA assert that there is any statutory barrier to the narrow 

option of ignoring lifecycle factors in the PSD process during the three-year 

period. Absent a statutory conflict, EPA lacked authority to reject the narrower 

statutory deviation in favor of the broader one that EPA selected. 

The Biomass Exemption excuses all biogenic CO2 sources from PSD 

permitting in order to avoid even potential regulation of some as-yet-undetermined 

class of sources with speculatively “trivial” effects. This is even more egregious 

than the Federal Trade Commission’s overbroad exemption of all promotional 

goods from the requirement to carry tobacco warning labels, which this Court 

struck down in Public Citizen because it was not tailored to the few promotional 

goods the agency had shown were too small to bear a warning, but rather extended 

to all such items no matter their size. 869 F.2d at 1556. The administrative 

necessity doctrine does not authorize the Biomass Exemption, and the Court must 

vacate it. 

III. THE DE MINIMIS DOCTRINE DOES NOT SUPPORT THE 

BIOMASS EXEMPTION 

 

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In addition to relying on administrative necessity, EPA also makes frequent 

reference to a second last-resort doctrine, the de minimis doctrine. Making sense 

of the agency’s jumble of statements about the de minimis doctrine is no easy task. 

EPA repeatedly used the phrase de minimis to describe a category of emissions it 

hypothesizes contribute little or no “net” CO2 to the atmosphere, once off-site 

sequestration of CO2 in growing biomass is taken into account. 76 Fed. Reg. 

43,498/2-43,499/1 (JA ___–___). As Petitioners show below, however, the Clean 

Air Act does not authorize EPA to take off-site CO2 absorption into account in 

determining whether sources require PSD and Title V permits, and EPA lacks 

authority to change the statutory framework under color of making a de minimis 

exemption, even on a temporary basis. Moreover, in addition to explaining the 

three-year exemption for all biogenic CO2 in the current rule, EPA also presented a 

de minimis rationale to justify future permanent exemptions for some or all 

biogenic CO2: 

EPA believes it has the authority to exclude biogenic CO2 emissions 

from the PSD and Title V requirements, if scientific analysis supports 

conclusions about the nature of biogenic CO2 in question that in turn 

support such an exclusion; the agency will be using the three-year 

deferral period to better understand the science associated with 

biogenic CO2 emissions and to explore whether or not a permanent 

exemption is permissible for at least some and perhaps all types of 

feedstocks. 

76 Fed. Reg. 43,498/2 (JA ___). 

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In this opaque discussion, EPA has left it quite unclear whether it is relying 

on the de minimis doctrine to support the present Biomass Exemption, or whether 

it is only advertising that doctrine as the basis for a future rulemaking. If the Court 

finds that EPA did not rely on the de minimis doctrine in making the present 

exemption, then it need not determine in this case the limits on EPA’s authority to 

make future exemptions. If, however, the Court finds that EPA did rely on the de 

minimis doctrine to support the present Exemption, then the Court must decide 

now whether EPA has legal authority to do so, and whether EPA set forth a 

rational basis on this record for invoking the doctrine. 

A. The Clean Air Act Does Not Allow a De Minimis Exemption Based on OffSite CO2 Absorption 

As with exemptions borne of administrative necessity, an agency bears a 

heavy burden to justify a categorical de minimis exemption. “Determination of 

when matters are truly de minimis naturally will turn on the assessment of 

particular circumstances, and the agency will bear the burden of making the 

required showing.” Ala. Power, 636 F.2d at 360; see also Sierra Club, 719 F.2d at 

462-463 (agency must make a rigorous showing with regards to the de minimis

doctrine). A de minimis exemption likewise must be no broader than necessary. 

New York v. EPA, 443 F.3d 880, 888 (D.C. Cir. 2006) (an agency relying on the de 

minimis doctrine may “diverge from the plain meaning of a statute only so far as is 

necessary to avoid its futile application”). See also Shays v. Fed. Elections 

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Comm’n, 414 F.3d 76, 114 (D.C. Cir. 2005) (“situations covered by a de minimis

exemption must be truly de minimis”). As EPA itself acknowledges, 76 Fed. Reg. 

43,498/3 (JA ___), the de minimis doctrine does not allow EPA to take actions 

“contrary to the express terms of the statute.” Ober v. Whitman, 243 F.3d 1190 

(9th Cir. 2001); see also Ohio v. EPA, 997 F.2d 1520, 1534-35 (D.C. Cir. 1993). 

The Clean Air Act, as shown below, unambiguously provides that whether a 

source needs a PSD or Title V permit turns on the amount of regulated pollutants 

that the source itself emits. Nowhere does EPA identify a gap or ambiguity in the 

statute that would make it reasonable for the agency to give the source a credit for 

off-site CO2 absorption, offsetting its own emissions. 

The de minimis doctrine does not provide EPA with authority to “exercise a 

‘revisory power’” to change the statute. Ala. Power, 636 F.2d at 361. As this 

Court has held, the de minimis doctrine does not allow EPA to change the statute’s 

meaning based on a view that the costs of carrying out the statute exceed its 

benefits or based on other factors that are not relevant to the underlying statute. Id.

1. The Clean Air Act Does Not Allow Consideration of Off-Site Factors 

in PSD and Title V Permit Applicability Decisions

Nowhere in the proposed or final rule notices did EPA identify either any 

statutory language that permits it, under either Step 1 or 2 of Chevron v. NRDC to 

reach beyond the borders of a source to consider lifecycle emissions when 

determining whether the source requires a PSD or Title V permit. As shown 

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below, all of the relevant statutory terms – “major emitting facility,” “stationary 

source,” “emits,” “potential to emit,” “any air pollutant,” “subject to regulation,” 

“directly,” or “from” – require EPA to count the amount of emissions that the 

source itself emits when determining if a biomass-burning source needs a PSD or 

Title V permit. 467 U.S. 837 (1984). None of those terms is in any way 

ambiguous, leaving no room for considering off-site CO2 absorption in permit 

applicability decisions. Analysis begins with the term “major emitting facility.” 

Under Section 165(a)(1), “no major emitting facility” may be constructed without 

a PSD permit. 42 U.S.C. § 7475(a). Section 169(1) defines a “major emitting 

facility,” in relevant part, as a “stationary source[ ] of air pollutants which emit[s], 

or [has] the potential to emit,” certain amounts of any air pollutant “from” the 

source. 42 U.S.C. § 7479(1) (emphasis added). The term “stationary source” itself 

is defined in Section 111(a)(3) as “any building, structure, facility, or installation 

which emits or may emit any air pollutant.” 42 U.S.C. § 7411(a)(3) (emphasis 

added). These terms do not admit of the far-ranging inquiry into off-site uptake of 

CO2 invoked by EPA. 

Both this Court and the Supreme Court have held that EPA may define 

“stationary source” and “major emitting facility” as broadly as an industrial plant 

as a whole, defined as a set of geographically contiguous or adjacent facilities that 

are under common ownership and control. See Ala. Power, 636 F.2d at 396 

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(“facility” and “installation” may be defined “broadly enough to encompass an 

entire plant.”); Chevron, 467 U.S. at 861-62 (same for “building, structure, facility, 

or installation”). Thus, the statutory terms permit EPA or state agencies to count 

the contemporaneous emission increases and decreases within a given industrial 

plant when determining, on net, whether a construction project has caused a 

sufficient emissions increase to trigger the requirement to obtain a PSD permit. 

But nothing in these statutory terms, or the Courts’ decisions, allows EPA to 

stretch the maximum geographic ambit of “major emitting facility” to reach sites 

far distant from the facility in question, let alone under the ownership and control 

of other entities. 

The same analysis holds for Title V operating permits. Under Section 

502(a), each “major stationary source” requires an operating permit. 42 U.S.C. 

§ 7661a(a). “Major stationary source” is defined in Section 302(j) as “any 

stationary facility or source of air pollutants which directly emits, or has the 

potential to emit” specified levels of “any pollutant.” 42 U.S.C. § 7602(j). 

EPA has never before asserted authority for sources to “net out” of PSD or 

Title V permitting by taking into account distant, off-site, and later emissions 

decreases, let alone by taking into account distant off-site CO2 absorption from the 

atmosphere. To the contrary, EPA has long held that “secondary emissions” – 

“emissions which occur as a result of ... the operation of a major stationary source 

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or modification, but do not come from the major stationary source or major 

modification itself” – “do not count in determining the potential to emit of a 

stationary source.” See 40 C.F.R. § 51.166(b)(4), (18) (emphasis added). 

Whether they increase or decrease, these distant emissions “occur[ing] as result of” 

the source do not count in determining whether the source needs, or does not need, 

a permit. Id. § 51.166(b)(18). It would be an even greater stretch to count CO2

absorption during the growth of trees or crops on wholly separate and distant sites, 

owned or operated by unrelated entities, when determining how much pollution a 

biomass-burning source emits or has the potential to emit. 

The terms “emit” and “potential to emit” are also equally clear. “Emit” 

means “to send forth; discharge” or “give forth or release.” Emit Definition, 

Dictionary.com, http://dictionary.reference.com/browse/emit?s=t (last visited Mar. 

14, 2012). “Potential to emit” means a source’s theoretical maximum emissions 

“under its physical and operational design.” See, e.g., 40 C.F.R. § 51.166(b)(4). 

The plain meaning of “emit” or “potential to emit” does not encompass anything 

off-site. There certainly is no ambiguity that allows for reasonably interpreting the 

terms to encompass carbon absorption during plant growth extrinsic to the emitting 

source. 

EPA’s final rule implements the Biomass Exemption by excluding CO2

emissions resulting from the combustion of any type of biomass from the mass of 

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the greenhouse gas emissions that must be tallied to determine PSD applicability, 

so that such “biogenic CO2” is excluded from the statutory phrase “any air 

pollutant subject to regulation.” See, e.g., Id. § 51.166(b)(48)(ii)(a). But that 

phrase’s component terms do not allow such an interpretation. The Supreme Court 

decided in Massachusetts v. EPA that CO2 and other greenhouse gases are 

unambiguously “air pollutants.” 549 U.S. at 528-29, 532. And as EPA itself 

recognizes, greenhouse gases (including CO2) became a pollutant “subject to 

regulation” for PSD permitting purposes at the very latest when EPA’s motor 

vehicle standards took effect in January 2011. 75 Fed. Reg. 17,004 (Apr. 2, 2010)( 

JA ___). 

As EPA acknowledged in the proposal, “since the relevant provisions of the 

Act apply to ‘any air pollutant’ or any ‘air pollutant subject to regulation,’ the 

terms of the [Act] suggest that the PSD and Title V requirements should apply to 

CO2 emissions from bioenergy or other biogenic sources in the same manner as 

they apply to emissions of CO2 from any other type of source, since such emissions 

are constituents of the regulated pollutant [greenhouse gases].” 76 Fed. Reg. at 

15,260/3 (JA ___). In fact, the unambiguous statutory terms do more than 

“suggest” this result; they require it. 

The limitations in the terms in Sections 169, 165, and 502 become more 

evident when looking at other provisions of the Act. When Congress has intended 

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EPA to take “lifecycle greenhouse gas emissions” into account in the Clean Air 

Act, it has provided so expressly. The renewable motor fuels program in Section 

211(o) expressly directs the Administrator to ensure that the “lifecycle greenhouse 

gas emissions” associated with various renewable motor fuels will be equal to, or 

less than, the “baseline lifecycle greenhouse gas emissions” of conventional 

petroleum-based fuels. See Section 211(o), 42 U.S.C. § 7545(o). There is nothing 

like this authority to take lifecycle emissions into account in the Act’s PSD or Title 

V provisions for stationary sources. 

Similarly, Congress was explicit when it wished EPA to take into account 

off-site emissions decreases in stationary source permitting decisions. Section 173 

of the Act provides that to obtain a permit to construct in a nonattainment area (an 

area where pollutant concentrations already exceed a national ambient air quality 

standard), a new or modified major stationary source must obtain emission 

reduction offsets, which the statute expressly provides may come from other

sources in the same region. See 42 U.S.C. § 7503(a)(1)(A) (source must obtain 

“sufficient offsetting emissions reductions ... such that total allowable emissions 

from existing sources in the region, from new or modified sources which are not 

major emitting facilities, and from the proposed source[,] will be sufficiently less 

than total emissions from existing sources ... so as to represent ... reasonable 

further progress”). 

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In sum, there is no statutory authority and no statutory ambiguity or gap that 

allows consideration of lifecycle CO2 emissions in PSD and Title V permit 

applicability determinations. 

2. The De Minimis Doctrine Does Not Allow EPA to Introduce 

Legislatively Excluded Factors into Permit Applicability Decisions

As noted above, the de minimis doctrine is not a roving license to consider 

factors that are irrelevant under the terms of the statute. At most, the de minimis 

doctrine allows EPA to move away from the statutory terms only when full 

compliance with them would produce nothing but trivial benefits. For example, 

Alabama Power concluded that Section 165 by its terms required EPA to issue 

permits for modifications that resulted in any emissions increase from a source. 

The Court then held that EPA could exclude emissions increases so small that 

regulating them would “yield a gain of trivial or no value.” Ala. Power, 636 F.2d 

at 361. But the Court also made clear that EPA may not “exercise a ‘revisory 

power’” to change what an “emissions increase” means. Id. Thus, while EPA may 

treat very small emissions increases from a source itself as de minimis, it has no 

authority to excuse the source’s own substantial emissions increases because of 

off-site emissions decreases or off-site CO2 absorption. In short, the de minimis 

doctrine does not allow EPA to change what the statute tells it to measure in the 

course of determining whether the amount emitted is de minimis. 

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Indeed, using the de minimis doctrine as EPA does here makes a mockery of 

the doctrine itself. The doctrine exists to permit agencies to ignore genuine trifles. 

But here EPA claimed authority to fabricate “net trifles” by pairing very large 

source-specific emissions increases with hypothesized major offsets in far distant 

forests or fields that might occur, if at all, at some other time. Creating a huge 

loophole on that basis is well beyond the limited exemption that this Court 

recognized in Alabama Power. .

B. EPA Has No Record Support for a Categorical De Minimis Exemption for 

Biogenic CO2 Emissions. 

EPA’s record simply does not support reliance on the de minimis doctrine to 

create a categorical exemption for all biogenic CO2. First, EPA cannot reasonably 

base a current categorical exemption on the possibility that a future analysis and a 

future rulemaking may provide the factual support for it. Second, like the agency’s 

overbroad administrative necessity rationale, EPA cannot base an exemption for all

biogenic CO2 emissions on the possibility that EPA may eventually decide that 

some such emissions are de minimis. Third, EPA utterly neglected other statutorily 

relevant effects of the exemption it created, including criteria pollutant emissions 

increases and forest harms. 

1. EPA May Not Base an Exemption on Speculative Future Fact-Finding 

About Lifecycle CO2 Emissions

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Even assuming it had authority to do so, EPA has failed to show that the 

benefits of requiring biomass-burning sources to obtain PSD and Title V permits 

are trivial. Instead of a demonstration of present facts, EPA offered only fainthearted speculation that future analysis may show some biomass feedstocks may – 

or may not – prove to yield trivial benefits. EPA “believe[s] that it is conceivable

that as a result of the scientific examination of biogenic CO2 emissions, we could

conclude that the net carbon cycle impact for some biomass feedstocks is trivial, 

negative, or positive.” 76 Fed. Reg. at 43,496/3 (JA ___) (emphasis added). But, 

the de minimis doctrine does not allow EPA to make an exemption in advance of 

demonstrating the basis for it. See NRDC v. EPA, 966 F.2d 1292, 1306 (9th Cir. 

1992) (“Because of the lack of data, we cannot know whether [EPA’s exemption] 

will indeed have only a de minimis effect.”). 

2. EPA Failed to Tailor its Biogenic CO2 Exemption as Narrowly as 

Possible 

Further, EPA lacks authority to exempt all biomass feedstocks now on the 

basis of future scientific analysis and a subsequent rulemaking that it speculates 

may show trivial regulatory benefits for some such feedstocks. 76 Fed. Reg. at 

43,496/3, 43,498/3-43,499/1-2 (JA ___, ___-___). The de minimis doctrine 

requires EPA to demonstrate that trivial benefits attend the entire category being 

exempted, not just part of that category. An exemption may not be any broader 

than needed to avoid futile regulation. See New York, 443 F.3d at 888. Far from 

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tailoring the Biomass Exemption as narrowly as possible, the agency extended its 

breadth as far as possible. See 76 Fed. Reg. at 43,493/1 (defining “biogenic CO2

emissions” as including those from “combustion or decomposition” of all 

“biologically based materials other than fossil fuels and mineral sources of 

carbon,” including the “biological fraction” of tires and other solid wastes) (JA 

___). EPA acknowledged that different types of biomass have very different 

lifecycle carbon profiles. Some feedstock types, the agency asserted, may later be 

shown to have “a negligible impact on the carbon cycle.” 76 Fed. Reg. at 15,261/2 

(JA ___). Other feedstock types, the record shows, remain net CO2 emitters over 

very long time periods – decades or more. See supra 15. And for some types – for 

example, because of the loss of carbon stored in soils converted from forest to 

agriculture, or simply clear cut – re-growth may never fully recapture the 

emissions lost to the atmosphere, keeping them from being carbon neutral over any 

timeframe. CBD Comments at 16, 24-25 (JA __, ___-___); Wild Virginia, et al. 

Comments (EPA-HQ-OAR-2010-0560-0455) at 18 (JA ___).10 And, as the agency 

                                                           

10 See also Booth Decl. ¶¶ 17, 19, and 26 (citing Michael Ryan, et al., A Synthesis 

of the Science on Forests and Carbon for U.S. Forests, Ecological Society of 

America: Issues in Ecology, Report No. 13 (Spring 2010) at 7). These studies were 

among many submitted in response to EPA’s “Call for Information on Greenhouse 

Gas Emissions Associated with Bioenergy and Other Biogenic Sources,” 75 Fed. 

Reg. 41,173 (July 15, 2010) (“CFI”), Docket No. EPA-HQ-OAR-2010-0560. This 

information has been on record before the Agency at least since the Fall of 2010, 

and has been incorporated into the record for this proceeding. See Incorporation 

by Reference (EPA-HQ-OAR-2011-0083-0003) (JA ___). 

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also stated: “[t]he possibility also remains that ... the utilization of some biomass 

feedstocks for bioenergy production will have a significant impact on the net 

carbon cycle, making application of the PSD program requirements necessary to 

fulfill congressional intent.” 76 Fed. Reg. at 43,499/1-2 (JA ___). 

Moreover, the record demonstrates that for the same usable energy output 

(e.g., megawatt-hours of electricity), the direct emissions of CO2 from combusting 

at least some forms of biomass are greater than CO2 emissions from burning fossil 

fuels. Some biomass fuels burn less efficiently than fossil fuels because they 

contain more moisture, and energy must be expended evaporating that water. For 

example, the record reveals that a source burning chipped-up whole trees and 

residues produces almost four times more CO2 per megawatt-hour of electricity 

than a comparably sized natural gas plant, and twice the CO2 emissions per 

megawatt-hour of a comparably sized coal plant. See CBD Comments at.11 

In comments on the proposed three-year exemption, certain petitioners 

reminded EPA of its duty to set the narrowest possible exemptions, and demanded 

that EPA restrict any exemption to only a subcategory of biomass feedstocks that 

the agency could then demonstrate has clearly trivial carbon cycle impacts. See, 

                                                           

11 See, e.g., Clean Air Task Force Comments, et al. on CFI (CFI Docket Nos. EPAHQ-OAR-2010-0560-0066.2, EPA-HQ-OAR-2010-0560-0157.1, and EPA-HQOAR-2010-0560-0564432.1) (comment submittals covering recent peer reviewed 

studies demonstrating that all biomass does not provide carbon benefits, 

particularly in the near term) (JA __). 

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e.g., NRDC Comments at 23 (JA __) (noting that only “biomass feedstocks that 

will not add to net carbon emissions going forward from the present time,” could 

be the subject of a current de minimis exemption). 

In short, the record demonstrates, and EPA acknowledged, that not all 

biomass energy facilities produce trivial or inconsequential CO2 emissions on a net 

lifecycle basis. Thus even if some facility-fuel pairings were eventually shown to 

be carbon neutral, EPA’s record would still not support a three-year de minimis

exemption from PSD permitting for all sources of biogenic CO2 emissions. This 

situation is in complete contrast to Ohio v. EPA, a CERCLA case cited by EPA to 

support the Exemption. See 76 Fed. Reg. 43,498/3 (JA ___). 

In Ohio, the agency could claim, on the basis of detailed studies, that 

regulating would mean reviewing sites where as little as “a single molecule of 

hazardous material” remained. 997 F. 2d at 1534. Here, in contrast, EPA has only 

just begun studying the issue, and admits the distinct possibility that the effect of 

exempting all major sources of biomass CO2 now will be to exempt sources whose 

CO2 emissions actually are significant on a life-cycle basis. 76 Fed. Reg. at 

43,499/1-2 (JA ___). Further, in Ohio EPA did not create an exemption for all

sites based on findings that only some had de minimis quantities of hazardous 

materials remaining. Rather, the rule upheld in Ohio exempted only those few 

sites where the remaining amount of hazardous material was deemed “safe” under 

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health-based standards, i.e., the site was fit for unlimited and unrestricted public 

use. 997 F.2d at 1534. Instead of supporting the Biomass Exception, Ohio shows 

how thoroughly short of the de minimis mark it falls. 

3. EPA Did Not Demonstrate That Other Impacts Will be De Minimis

As badly as EPA failed to show that the CO2 impacts of the Biomass 

Exemption will be de minimis, it failed even to assess the impact on emissions of 

criteria pollutants from biomass-burning plants. The record before the agency 

demonstrates that sources burning some biomass fuels produce not only more CO2

per megawatt-hour than sources burning coal or natural gas, but also more criteria 

pollutants – including PM2.5, and NOx, and carbon monoxide (CO). Partnership for 

Policy Integrity Comments (EPA-HQ-OAR-2011-0083-0357) at slides 40-44 (JA 

___-___). As explained above, when a biomass-burning facility is subject to PSD 

and requires a permit because of its CO2 emissions, then it must also comply with 

BACT for its other regulated pollutants. See supra 3. But under the Exemption, 

these facilities can be constructed and operated for their entire lifetimes without 

meeting BACT for those pollutants. 

Additionally, under Section 165(a)(3) and (a)(5), these facilities would have 

to meet other PSD requirements, including a demonstration that their criteria 

pollutant emissions will not cause or contribute to exceedances of relevant healthbased national ambient air quality standards (NAAQS) or the maximum allowable 

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pollution increases (“increments”) allowed in PSD areas. 42 U.S.C. § 

7475(a)(3), (5). Under the Exemption, however, biomass-burning facilities with 

significant criteria pollutant emissions can be constructed without making these 

health protection demonstrations. 

EPA had ample evidence that the health risks – including risks of early death 

– from these extra PM2.5 and NOx emissions are not de minimis. See, e.g., 

Dogwood Comments at 3 (JA ___).

12 EPA failed even to assert, let alone 

demonstrate, that the consequences of these emissions will be trivial or of no 

benefit. EPA simply dismissed these concerns about health impacts in some 

instances as mere “form letters” in “general opposition” to EPA’s rule and 

therefore not meriting detailed response. See generally, Response to Comments 

(EPA-HQ-OAR-2011-0083-0359) (RTC) at 146,13 178,14 and Appendix A at A-9 

and Appendix B (JA __, ___, and __ and ____). 

                                                           

12 See also Dr. William Blackley Comments (EPA-HQ-OAR-2011-0352)April 30, 

2011 (noting serious concerns about the increased health risks of particulate matter 

associated with biomass combustion) (JA ___), and CBD Comments at 57 (EPA’s 

proposal will result in non-trivial increases in conventional air pollution emissions 

that threaten human health) (JA ___). 

13 Offering no direct response to evidence submitted in CBD Comments that EPA’s 

proposal will result in non-trivial increases in conventional air pollution emissions 

that threaten human health. 

14 Offering only that EPA is “studying the question” of biogenic CO2 emissions, in 

response to Petitioner Dogwood Alliance’s concerns about the health impacts of 

increases in non-CO2 air pollution as a result of the Exemption. 

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EPA similarly failed to show that the Biomass Exemption will produce de minimis

impacts on forest resources. Petitioners Dogwood Alliance and Center for 

Biological Diversity, et al., pointed out significant risks to forests from biomassburning facilities constructed or modified during the three-year exemption period. 

See Dogwood Comments at 1-3 (JA ___), CBD Comments at18-22 (JA ___-___). 

Rather than address these “particular circumstances,” in Alabama Power, EPA said 

only that it will “keep [the comments] in mind,” and that “the Agency is 

proceeding as expeditiously as possible.” 636 F.2d at 360; RTC at 63, 117-18 (JA 

___, ___-___). EPA provided no evidence whatsoever that impacts of the Biomass 

Exemption on forest resources will be trifling or inconsequential. 

IV. THE ONE-STEP-AT-A-TIME DOCTRINE DOES NOT SUPPORT 

THE BIOMASS EXEMPTION 

EPA mistakenly tries to bolster its case for the Biomass Exemption by 

relying on what it “call[s] the ‛one-step-at-a-time’ doctrine.” 76 Fed. Reg. at 

43,494/1 (JA ___); see also id. at 43,497/1-43,498/2 (JA ___-___). The agency 

misconstrues the reach of this doctrine, which applies to how an agency exercises 

the discretion Congress has conferred. See, e.g. Nat’l Ass’n of Broadcasters v. 

FCC, 740 F.2d 1190, 1207-08 (D.C. Cir. 1984) (condoning stepwise use of 

congressionally conferred discretion). The doctrine simply does not give agencies 

more discretion than that. In the context of the administrative necessity doctrine, 

and others that authorize agencies to depart from a statute’s express terms, oneUSCA Case #11-1101 Document #1364134 Filed: 03/16/2012 Page 74 of 322
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step-at-a-time may apply to the way they exercise the limited discretion the 

departure doctrine allows. The doctrine, however, does not by itself justify 

exempting otherwise regulated entities from the requirements of a statute. Nor can 

EPA use this doctrine to expand the limited authority conferred by the 

administrative necessity and de minimis doctrines, without vitiating the strict limits 

courts have imposed. 

The Court has recognized that Congress may write statutes that deal with 

matters incrementally. See, e.g., Williamson v. Lee Optical of Okla., 348 U.S. 483, 

489 (1955) (“reform may take one step at a time, addressing itself to the phase of 

the problem which seems most acute to the legislative mind”); see also Pub. 

Citizen Health Research Grp. v. FDA, 185 F.3d 898, 903 (D.C. Cir. 1999) (this 

Court noting that “Congress may, of course, approach matters one step at a time”). 

This Court also has recognized that agencies may regulate incrementally where 

Congress entrusts an agency with broad authority to exercise its judgment in a 

given area. See, e.g. Nat’l Ass’n of Broadcasters, 740 F.2d at 1207-08 (noting that 

the challenged agency rules “are not a statutory requirement” and upholding their 

exemption of one class of businesses against the argument that the agency’s 

rationale applied equally to other, unexempted, businesses); Interstate Natural Gas 

Ass’n of Am. v. FERC, 285 F.3d 18, 29, 35 (D.C. Cir. 2002) (reviewing rate setting 

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required by statute to be “just and reasonable” and finding “the Commission is free 

to undertake reform one step at a time”). 

But where a statute, as here, prohibits facilities from constructing or 

operating without a permit and limits agency discretion to make exemptions based 

on off-site emission reductions or absorption, the “one-step” doctrine does not by 

itself create latitude for an agency to diverge from its clear statutory mandate. 

Here, having failed to offer any positive statutory authority for the Biomass 

Exemption, or that either the administrative necessity or de minimis doctrines 

warrant exempting biogenic sources wholesale, the agency adds nothing by 

asserting that it can proceed one-step-at-a-time. 

EPA did not show that the Biomass Exemption was an administrative 

necessity (as it did for the Tailoring Rule) or warranted under the de minimis

doctrine, and the agency here did not rely on the absurd results doctrine. Thus, 

there is no basis for proceeding one step at a time. Having failed to identify a 

legitimate source of discretion for a blanket exemption, EPA cannot rely on the 

one-step-at-a-time doctrine as authority for the piecemeal exercise of discretion 

that it does not actually have. 

Allowing an agency to use the one-step-at-a-time doctrine this way would 

largely render the administrative necessity, de minimis, and absurd results 

doctrines dead letters. All three doctrines are tightly circumscribed to ensure that 

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agencies do not flout congressional direction. If agencies could conjure up 

discretion to stray from the explicit language of a statute simply by asserting that 

they were proceeding one step at a time, there would never be any need to prove 

administrative necessity or the other conditions, and there would be no requirement 

to tailor the exemption or deviation from statutory text as narrowly as possible. 

This rulemaking contrasts sharply with the Tailoring Rule. There EPA 

applied the one-step-at-a-time doctrine in a manner consistent with the strict 

limitations of the other doctrines it invoked, namely administrative necessity and 

absurd results. EPA primarily grounded the Tailoring Rule in those doctrines, 

making a detailed, record-based analysis of what would constitute the very least 

amount of non-compliance necessary. See, e.g., supra 35 (calculations to assess 

and alleviate administrative burden). EPA then used the one-step-at-a-time 

doctrine to buttress its stepwise approach to full implementation, making 

enforceable commitments to a schedule for continuing to evaluate compliance 

down to the statutory thresholds. See, e.g., 75 Fed. Reg. at 31,607/1-2 

(promulgating new 40 C.F.R § 52.22(b) setting out additional steps toward 

implementing the statutory thresholds) (JA ___). No comparable record exists 

here. And with the failure to justify either administrative necessity or de minimis 

regulatory benefits, EPA lacks a basis for invoking the one-step doctrine. 

CONCLUSION 

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 Because EPA did not show that the Biomass Exemption was either needed 

to avoid an impossible administrative burden or would have only trivial effects, 

and the agency lacked any other authority for the Exemption, the Exemption was 

not adopted in accordance with law and was in excess of the agency’s statutory 

authority and/or limitations, and should be vacated on that basis. 

 

Respectfully submitted, this 15th Day of March, 2012

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/s/ Ann Brewster Weeks (NL)

Ann Brewster Weeks 

Helen D. Silver 

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 (NL)

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/ Kevin Bundy (NL)

Kevin 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 

David Doniger 

Meleah A. Geertsma 

Natural Resources Defense Council 

1152 15th Street NW, Suite 300 

Washington, D.C. 20005 

Phone: (202) 289-2403 

ddoniger@nrdc.org 

mgeertsma@nrdc.org 

/s/ Nathaniel S.W. Lawrence

Nathaniel S.W. Lawrence 

Natural Resources Defense Council 

3723 Holiday Drive, SE 

Olympia, WA 98501 

Phone: (360) 534-9900 

nlawrence@nrdc.org

Counsel for Natural Resources 

Defense Council

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1

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 13,576 

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

DATED: March 15, 2012 SIGNED: /s/ Nathaniel S.W. Lawrence

USCA Case #11-1101 Document #1364134 Filed: 03/16/2012 Page 80 of 322
CERTIFICATE OF SERVICE

 I hereby certify that the foregoing Opening 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: March 15, 2012 SIGNED: __/s/ Nathaniel S.W. Lawrence__ 

 [printed name] 

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