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EPA Environmental Appeals Board Bonanza Decision

EPA Environmental Appeals Board Bonanza Decision. John Barth, Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 barthlaw@aol.com. Introduction. Importance of Bonanza EAB decision and previous greenhouse gas (GHG) actions.

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EPA Environmental Appeals Board Bonanza Decision

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  1. EPA Environmental Appeals Board Bonanza Decision John Barth, Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 barthlaw@aol.com

  2. Introduction • Importance of Bonanza EAB decision and previous greenhouse gas (GHG) actions. • John Barth, Attorney at Law. Specializes in representation of non-profit environmental organizations.

  3. Topics of Discussion • Massachusetts v. EPA • Advanced Notice of Public Rulemaking (ANPR) • Bonanza EAB decision • What does it all mean with regard to EPA regulation of GHGs?

  4. Massachusetts v. EPA, 549 U.S. 497 (2007) • U.S. Supreme Court decision under EPA Clean Air Act mobile source program. • Is CO2 an “air pollutant” under the Clean Air Act (CAA)? Yes. • Who has standing to contest EPA’s failure to regulate GHGs? At least coastal states. • Endangerment finding on remand

  5. ANPR on CO2 • EPA seeks comments on use of CAA to address climate change. • ANPR is response to Mass. V EPA • ANPR is largely a “punt” to next administration

  6. Bonanza EAB decision, 13 EAD __. • Appeal of EPA-issued PSD permit for new coal plant on Utah Indian lands. • Is CO2 a pollutant “subject to regulation” under CAA Section 165(a)(4) thus requiring best available control technology (BACT)? • EAB rejects all EPA’s rationales that CO2 is NOT subject to regulation under CAA. • Scope of remand- EPA must either create a record for case-by-case determinations or address the issue in a national manner.

  7. What does this all mean? • The US Supreme Court and EPA’s own administrative court clear the way for EPA to regulate GHG from both mobile and stationary sources. • New PSD permits issued by EPA and delegated states for coal plants (and other major stationary sources) must have an adequate administrative record explaining rationale for not regulating GHGs. • Directly impacts at least 4 proposed coal plants in western United States. • Bonanza will slow issuance of permits.

  8. What does this all mean? (continued) • Is Bonanza decision legal authority in state-issued PSD permits in SIP-approved states? • Generally, Bonanza likely persuasive authority but not binding in SIP-approved states. • Impact of Bonanza likely state-dependent (Kansas v. Wyoming).

  9. If EPA regulates CO2, how will it proceed? • Amend CAA? • New NSPS Regulations? • Case-by-case BACT? • Mobile sources or stationary sources first? • Supremacy over state regulation?

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