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Center for Biological Diversity v. Environmental Protection Agency

ELR Citation: 43 ELR 20157
Nos. 11-1101, (D.C. Cir., 07/12/2013)

The D.C. Circuit vacated an EPA rule that deferred regulation of biogenic carbon dioxide—non-fossil-fuel carbon dioxide sources such as ethanol—for three years. Although the "Deferral Rule" is a temporary regulation, it functions, in effect, as a permanent exemption from the PSD permitting requirement for any biogenic carbon dioxide source constructed during the three-year deferral period. Citing scientific uncertainty over how to account for biogenic carbon dioxide’s unique role in the carbon cycle, EPA justified the rule on the basis of the de minimis, one-step-at-a-time, and administrative necessity doctrines. Several environmental groups petitioned for review, arguing that the Agency's invocation of these doctrines was arbitrary and capricious. The court agreed. The deferral rule has a three-year sunset provision whereas the de minimis doctrine "is used to establish permanent exemptions." Thus, the rule cannot be sustained under the de minimis doctrine. In addition, EPA’s invocation of the one-step-at-a-time doctrine was arbitrary and capricious. EPA failed to articulate what it believes the statute requires and how it intends to achieve that goal. As such, the court has no basis for evaluating whether EPA is in fact taking "a first step toward a complete solution." And under the administrative necessity doctrine, an agency must adopt the narrowest feasible exemption. Here, EPA failed to explain why it rejected a middle-ground option that would have reduced emissions from sources the Deferral Rule permanently exempts.