The Biobased and Renewable Products Advocacy Group (BRAG) helps members develop and bring to market their innovative biobased and renewable chemical products through insightful policy and regulatory advocacy. BRAG is managed by B&C® Consortia Management, L.L.C., an affiliate of Bergeson & Campbell, P.C.

New U.S. Environmental Protection Agency (EPA) Administrator Gina McCarthy is working hard this month to carry out the President's Climate Action Plan, which is available online. The plan is designed to "cut the carbon pollution that causes climate change and affects public health." This week, Administrator McCarthy participated in a town hall event at the University of Colorado at Boulder to discuss the plan and EPA's work on new emissions rules for new and existing power plants. 


 

On July 18, 2013, the Senate voted 59-40 to approve the nomination of Gina McCarthy to lead the U.S. Environmental Protection Agency (EPA). Six Republicans voted for the nomination, including Senators Lamar Alexander (R-TN); Kelly Ayotte (R-NH); Susan Collins (R-ME); Bob Corker (R-TN); and Jeff Flake (R-AZ). McCarthy was sworn in to her new position as EPA Administrator on July 19, 2013.


McCarthy's confirmation came after four months of debate, with several Republicans, including members of the Senate Committee on Environment and Public Works (EPW), opposing her nomination out of protest for the perceived lack of transparency at EPA as the Agency works to issue rules to promote alternative forms of energy and combat climate change. McCarthy's nomination moved forward after one of the key opponents, Senator David Vitter (R-LA), announced his satisfaction that EPA was making progress on this transparency issue.


McCarthy served as the Assistant EPA Administrator for Air and Radiation since 2009. Before that, she served as Connecticut's Environmental Commissioner during which time she played an instrumental role in the development of the Regional Greenhouse Gas Initiative (RGGI). The RGGI is an initiative among nine Northeastern states to reduce harmful greenhouse gas (GHG) emissions in that region. In her new role, McCarthy is expected to work diligently with all stakeholders to issue rules designed to carry out President Obama's new climate change plan. These rules will include new controls on GHG from new and existing power plants, as well as the final 2013 renewable volume obligations (RVO) under the federal Renewable Fuel Standard (RFS) and the proposed 2014 RFS RVOs.
 

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On July 12, 2013, the U.S. Court of Appeals for the District of Columbia issued its decision in Center for Biological Diversity v. EPA. In a 2-1 decision, the court vacated the U.S. Environmental Protection Agency's (EPA) rule (the Deferral Rule) exempting bioenergy and other biogenic sources of greenhouse gas emissions from new greenhouse gas permitting requirements under EPA's Tailoring Rule for a period of three years. This deferral was meant to allow EPA time to study and develop a proper method of accounting for greenhouse gas emissions from these sources. The court held that EPA did not meet the standards to justify its Deferral Rule under any of the four doctrines it had invoked.


According to EPA, biogenic carbon emissions are "emissions of CO2 from a stationary source directly resulting from the combustion or decomposition of biologically-based materials other than fossil fuels and mineral sources of carbon." Examples of biogenic CO2 include: CO2 generated from the biological decomposition of waste in landfills, fermentation during ethanol production, combustion of the biological fraction of municipal solid waste or biosolids, combustion of the biological fraction of tier-derived fuel, and combustion of biological material, including all types of wood and wood waste, forest residue, and agricultural material, among others. Therefore, carbon emissions from some facilities producing biofuels and renewable chemicals could be subject to these new permitting requirements under the Tailoring Rule. The requirements of the Tailoring Rule are triggered when stationary sources meet certain emissions thresholds.


This decision is important for industry and creates uncertainty going forward. Without future legal, legislative, or regulatory action, it appears likely that stationary sources meeting the emissions thresholds under the Tailoring Rule will be subject to the new permitting requirements.

 

 

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