Federal Court Strikes Down EPA’s “Deferral Rule”

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According to the D.C. Circuit Court of Appeals, the U.S. EPA acted in an arbitrary and capricious manner in promulgating the 2011 “Deferral Rule” which, albeit temporarily, treated biogenic sources of carbon dioxide differently than greenhouse gas emissions from fossil-fuel combustion in vehicle tailpipes and stationary sources such as coal-fired power plants for purposes of greenhouse gas permitting. The D.C. Circuit’s recent decision to vacate the Deferral Rule in Center for Biological Diversity v. EPA, essentially means that sources of biogenic carbon dioxide – such as landfill gas, wastewater treatment plants, manure management facilities, biomass combustion sources, and ethanol production plants – may no longer rely on the temporary deferral and must now consider such emissions as part of pre-construction and construction permitting (PSD and NSR) and major source operating permits (Title V).

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