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Ninth Circuit lends biomass a Helping Hand

On September 2, 2015, the Court of Appeals for the Ninth Circuit handed down its opinion in a consolidated case - Helping Hand Tools v. U.S. Environmental Protection Agency (available here). In it, the court held that EPA did not act arbitrarily or capriciously in granting a Prevention of Significant Deterioration (“PSD”) permit under the Clean Air Act to Sierra Pacific Industries, Inc. Both Helping Hand Tools and the Center for Biological Diversity had petitioned the court to review the permit and the court consolidated their petitions. The decision is clearly a win for EPA and Sierra Pacific. Since EPA’s exemption for biomass PSD permitting expired in 2014, biomass facilities have been subject to PSD permitting for greenhouse gases, but the manner in which they would be treated has remained an open question. The Ninth Circuit’s opinion applies established precedent regarding the PSD permitting program to a biomass facility, establishing that biomass facilities cannot be compelled to consider other forms of generation in the best available control technology analysis. The opinion is also noteworthy because the court granted deference to EPA’s Bioenergy BACT Guidance.

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CEQ Issues Final Guidance on How Federal Agencies Should Assess Climate Change Under NEPA: What Has Changed?

On August 2, 2016, the Council on Environmental Quality (“CEQ”) released guidance on the assessment of climate change impacts under the National Environmental Policy Act (“NEPA”) (“the Guidance”). The Guidance is the culmination of a long process: the Obama Administration first proposed draft NEPA climate change guidance in 2010, and published subsequent draft guidance in 2014, before taking action to issue the final Guidance. While this Guidance does not purport to create any new obligations for federal agencies under NEPA, it nonetheless has the potential to significantly expand the scope of climate impacts considered in prior NEPA documents for “major federal actions.” This is the first in a series of posts discussing the new Guidance.

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  • 21
  • October
  • 2013

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Can the Clean Water Act be Used to Address Ocean Acidification?

On October 16, 2013, the Center for Biological Diversity (“CBD”) filed a complaint in the U.S. District Court for the Western District of Washington seeking declaratory and injunctive relief that would require EPA to partially disapprove of Oregon and Washington’s impaired water lists that are required by the Clean Water Act (“CWA”) and to add water bodies impaired by ocean acidification to those lists.

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