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Bonanza of carbon cases at the EPA

Obama’s Environmental Protection Agency may not have a director yet, but it already has its hands full. In the final year of the Bush administration, the EPA has simply procrastinated on greenhouse gas control: the Supreme Court in 2007 ordered the agency to assess the dangerous impacts of emissions under the Clean Air Act, or else justify its lack of action, but the result was a hopelessly conflicted report with a comment period that outlasts the presidential turnover. Now adding pressure to sort this out, pronto, are an EPA decision on coal plants last week and the threat of a new lawsuit over ocean acidification.

On Thursday the EPA’s Environmental Appeals Board rejected the permit for Utah’s new Bonanza Coal Power Plant – a ruling that could halt as many as 100 other coal plants on the EPA docket until the agency can decide how to regulate their carbon dioxide output. For details, see the thorough coverage on Wired Science and Climate Progress. AP summarizes:

The panel said the EPA’s Denver office failed to adequately support its decision to issue a permit for the Bonanza plant without requiring controls on carbon dioxide, the leading pollutant linked to global warming.

The matter was sent back to that office, which must better explain why it failed to order limits on carbon dioxide. This is “an issue of national scope that has implications far beyond this individual permitting process,” the panel said.

The Sierra Club conservation group filed the Bonanza appeal and argued it on the basis of the Supreme Court ruling. Their victory wasn’t absolute, explains Alexis Madrigal on Wired Science:

The Board did not actually side with the Sierra Club’s interpretation of the Clean Air Act, but in deciding to send the decision back to the EPA with the instruction to come up with a nationwide plan for regulating greenhouse gases, the Sierra Club effectively stopped new coal plants in their tracks.

“It’s going to stop everything while EPA mulls over what to do next,” Sierra Club lawyer David Bookbinder told the AP. “And that will be decided by the next administration.”

Meanwhile, the Center for Biological Diversity has appeared to the EPA as the Ghost of Lawsuits Yet to Come. Skipping the Clean Air Act (and other federal laws cited in past cases against carbon, as noted by Dot Earth), the CBD say they will invoke the Clean Water Act in defense of acidifying oceans. The group petitioned last year for an update in the EPA’s pH standards, which haven’t been revised since 1976 – a problem flagged in a July 2007 Science commentary (subscription required).

Their followup is a notice of intent to sue. A win in court could open yet another door to EPA regulation of carbon dioxide emissions – something the CBD is going after explicitly in separate, state-level petitions.

Insiders have said that Obama’s promised federal cap-and-trade bill is unlikely fall into place until 2010. But with all new coal plants held hostage and an additional line of legal attack opening up, the new president may have to get moving much sooner on figuring out the EPA’s role in greenhouse gas regulation.

Upshots in the energy business: coal stocks are falling, and renewables could see the playing field tilt in their direction.

Anna Barnett


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