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EPA Announces Plan to Classify Wood-Based Power as Carbon Neutral

The US Environmental Protection Agency (EPA) plans to propose a rule that would classify as carbon neutral power produced from the combustion of forest biomass. If eventually adopted, such a rule would begin to provide clarity to an issue that has been plagued by uncertainty for nearly ten years.

Background on Biomass Carbon Neutrality

Since 2010, EPA has struggled to develop an accounting framework for biogenic CO2 emissions. 

Following EPA’s decision to regulate greenhouse gas (GHG) emissions under the Clean Air Act, which came in response to the Supreme Court’s decision in Massachusetts v. EPA, it became necessary to develop a framework for accounting for GHG emissions when issuing stationary source permits under the Title V and the New Source Review (NSR) permitting programs. In mid-2010, EPA published in the Federal Register a “Call for Information: Information on Greenhouse Gas Emissions Associated With Bioenergy and Other Biogenic Sources.” 75 Fed. Reg. 41173, July 15, 2010. That request generated extensive comments and set in motion a lengthy scientific process to assess the carbon neutrality of biogenic CO2 emissions. 

In 2011, EPA submitted a draft technical report to its Science Advisory Board (SAB) for peer review, which contained a draft framework for assessing biogenic CO2 emissions associated with biomass combusted for power generation at stationary sources (the 2011 Draft Framework). At bottom, the 2011 Draft Framework sought to develop a Biogenic Accounting Factor (BAF) based on a carbon lifecycle approach, and that would enable individual stationary sources to calculate their biogenic CO2 emissions. In 2012, the SAB released the results of its review of the 2011 Draft Framework, noting that it contained “a number of important limitations”, including differences in calculation methodology based on feedstock, a lack of definition of key features of the 2011 Draft Framework, and a failure to address “unintended consequences.” As a result, the SAB called on EPA to develop a set of “default” BAFs that could be applied, rather than requiring a facility-level analysis.

In 2014, EPA released a second draft of its technical report (2014 Revised Framework), which incorporated SAB input, stakeholder comments, and other information, and which presented a revised framework for assessing biogenic CO2 emissions. Since then, the SAB has been unable to finalize a response to the 2014 Revised Framework due to disputes regarding the appropriate accounting framework, assumptions, and other technical considerations. As a result, EPA had not—until now—announced a clear regulatory policy governing biogenic CO2 emissions.

EPA’s Recent Biomass Policy Announcements

On April 23, 2018, EPA issued a policy statement indicating that “EPA’s policy in forthcoming regulatory actions will be to treat biogenic CO2 emissions resulting from the combustion of biomass from managed forests at stationary sources for energy production as carbon neutral.” Within the 2018 policy statement, EPA indicated that its policy “is not a scientific determination and does not revise or amend any scientific determinations that EPA has previously made.” Instead, EPA’s goal was (and is) to “promote[] the environmental and economic benefits of the use of forest biomass for energy at stationary sources, while balancing uncertainty and administrative simplicity when making programmatic decisions.” That statement acknowledges the scientific uncertainty surrounding the SAB’s work, and the need for clear regulatory policy even in the face of continued debate on an accounting framework for biogenic CO2 emissions. Congress had previously requested such action by EPA.

EPA’s 2018 biomass policy statement followed a letter sent by EPA Administrator Scott Pruitt in February, 2018 to New Hampshire Governor Chris Sununu, which came in response to an inquiry from the Governor and indicated that EPA would seek to “provide clarity and incorporate consistent treatment of biomass through the range of EPA’s regulatory programs.” Later in 2018, EPA and the U.S. Department of Agriculture and U.S. Department of Energy also sent a joint letter to the Senate and House Committees on Appropriations that described their coordinated efforts “to ensure consistent federal policy on forest biomass energy and promote clear policies that encourage the treatment of forest biomass as a carbon-neutral renewable energy solution.” 

EPA apparently plans to make good on the promises it made in 2018. On April 2, 2019, EPA Administrator Andrew Wheeler told lawmakers that EPA intends to propose a new rule that would treat biogenic CO2 emissions from power plants as carbon neutral. The proposal is expected this summer and, if adopted, the rule will have implications for the power generation industry as well as other industry sectors.

Implications of a Carbon-Neutral Biomass Policy

Since the EPA began regulating GHGs as a pollutant under the Clean Air Act, there has been a lot of discussion around how greenhouse gases should be incorporated into the NSR program. Specifically, there has been some debate about how to evaluate the Best Available Control Technology (BACT) for GHGs. Ultimately, if a source is required to obtain a NSR permit, and the source meets the GHG production threshold, then the source must evaluate BACT for GHG emissions. However, if biomass is considered carbon neutral, a facility could arguably exclude all biogenic COemissions from its inventory and could evaluate biomass co-firing or fuel-switching when setting BACT.

EPA also has signaled its desire to reevaluate federal procurement recommendations in conjunction with the development of the carbon neutral policy. Currently, there are few certifications that qualify a forest for federal procurement opportunities. However, if federal procurement recommendations are reconsidered in conjunction with the biomass proposal, then the number of forests that are eligible to participate in federal procurement opportunities could increase. Furthermore, a carbon-neutral biomass policy could expand the government’s acquisition of goods produced via sustainable environmental practices, allowing industry and government to meet other established sustainability metrics.

Finally, the federal treatment of biomass as carbon neutral may send a signal to the states. This could play out in both air permitting, and also during the implementation of a state’s renewable energy goals and Renewable Portfolio Standard (RPS). Presently, nearly 40 states have their own RPS, which requires a specified percentage of saleable electricity to come from renewable sources. State treatment of biomass varies widely: some states disfavor biomass, or require a complex lifecycle analysis of carbon neutrality, while other states take a more permissive approach. Federal policy could encourage certain states to expand the role of biomass within their RPS program.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 99


About this Author

Brook Detterman Environmental Litigation Attorney Beveridge & Diamond Boston, MA

Brook's practice focuses on climate change, renewable energy, and environmental litigation.

Brook helps his clients to navigate domestic and international climate change programs, develop renewable energy projects, and generate carbon offsets.  He helps his clients to negotiate, structure, and implement transactions related to carbon offsets and renewable energy, and works with clients during all phases of renewable energy and carbon offset project development.  Brook also represents clients during complex environmental litigation, having served as litigation and appellate counsel...

Kirstin K. Gruver Environmental Litigation Attorney Beveridge & Diamond Seattle, WA

Kirstin Gruver is efficient and responsive to clients' needs.

She maintains a diverse environmental litigation and regulatory practice, working with clients nationwide across industrial sectors with a focus on wetlands and water issues. She also has experience in product stewardship and sustainability matters.

Prior to joining Beveridge & Diamond, Kirstin worked as a deputy prosecuting attorney at the Clark County Prosecutor's office. She also worked as a legal intern with the Department of Transportation, Maritime Administration, and as a summer clerk at Earthjustice.

Kirstin attended law school at the University of Washington School of Law, where she served as an extern at the Attorney General's Office of the University of Washington and as a legal intern at the University of Washington Tribal Defense Clinic. She also acted as the Notes & Comments Editor of the Washington Journal of Environmental Law & Policy.

Before attending law school, Kirstin served a year with AmeriCorps working in the Flathead Valley doing watershed conservation and restoration work on the Flathead River, working with local farmers to create and implement restoration plans for their riverbanks. She also led environmental education sessions at her local Boys and Girls Club on the importance of wetlands and sustainable water resources.

Kirstin has also taught a portion of an environmental law class at the University of Washington School of Law, walking students through a case study of the practical application of the Comprehensive Environmental Response, Compensation, and Liability Act (known as CERCLA or Superfund) in the context of the Portland Harbor Superfund site.