An update from the National Law Review’s friends at Michael Best & Friedrich, LLP – Linda Bochert, Michelle Wagner & Anna Wildeman: 
In a move designed to encourage clean energy and the use of biomass as a fuel, on January 12, 2011, the U.S. Environmental Protection Agency (“EPA”) announced a 3-year deferral of the newly enacted Greenhouse Gas (“GHG”) permitting requirements for biomass-burning industries and other biogenic sources.
Effective January 2, 2011, large GHG emitters – e.g., power plants, refineries – must obtain air permits and implement energy efficiency measures or cost-effective technologies to reduce GHG emissions when building new facilities or making major modifications to existing facilities. EPA plans to complete the rulemaking to implement the deferral of the GHG permitting requirements for biomass-burning industries and other biogenic sources by July 2011. To cover the six-month gap until the deferral rule becomes effective, EPA is expected to issue guidance allowing state and local permitting authorities to conclude that the use of biomass is the best available control technology for GHG emissions.
EPA is implementing the deferral to enable it to seek and consider scientific research on carbon dioxide (“CO2”) emissions from biomass sources, including evidence that biomass based energy generation can be carbon-neutral. During the deferral period, EPA will seek input from other governmental agencies as well as from independent experts. EPA will also consider more than 7,000 comments it received from its July 2010 “Call for Information,” requesting public comment on approaches to account for GHG emissions from biomass-burning sources. Before the three year deferral ends, EPA expects to develop a second rulemaking that addresses how GHG emissions from biomass-burning and other biogenic sources should be treated under the Clean Air Act GHG permitting requirements.
In a separate, but related matter, EPA notified the National Alliance of Forest Owners (“NAFO”) that the agency will grant NAFO’s petition to reconsider the portion of EPA’s “Tailoring Rule,” finalized this past May 2010, which addresses the treatment of biomass carbon emissions. The biomass industry at large, including NAFO, was taken aback when EPA finalized its Tailoring Rule without any exemption for biomass-burning facilities.
