Greens claim victory on EPA ruling, lawyers say not-so-fast

The Environmental Protection Agency was blocked Thursday from issuing a permit for a proposed coal-burning power plant in Utah without addressing global warming, a decision that could affect dozens of coal power projects around the country.
The decision by an appeals panel at the EPA essentially punts the decision of CO2 regulation to the incoming administration of Barack Obama. According to AP:

“The panel said the EPA’s Denver office failed to adequately support its decision to issue a permit for the Bonanza plant without requiring controls on carbon dioxide, the leading greenhouse gas.
The matter was sent back to that office, which must better explain why it failed to order limits on carbon dioxide. This is “an issue of national scope that has implications far beyond this individual permitting process,” the panel said.”

The Sierra Club trumpeted the decision with the headline: “Coal Plants Must Limit C02”

“The EAB rejected every Bush Administration excuse for failing to regulate the largest source of greenhouse gases in the United States. This decision gives the Obama Administration a clean slate to begin building our clean energy economy for the 21st century.”

But attorneys with Bracewell & Giuliani, which represents utilities and merchant power plant developers, point out a paragraph in the decision:

“The Board rejects Sierra Club’s contention that the phrase “subject to regulation” has plain meaning and compels the Region to impose a CO2 BACT limit in the permit. On the contrary, the board finds that the statute is not so clear and unequivocal as to preclude Agency interpretation of the phrase “subject to regulation under this Act” and therefore the statue does not dictate whether the Agency must impose a BACT limit for CO2 in the permit.”

Attorney Rich Alonso said the decision ” … is really is a procedural outcome that is silent as to any particular regulatory outcome.”

“This decision stands for the principle that Congress did not clearly intend that CO2 be regulated under the existing Clean Air Act. Many industries are breathing a sigh of relief today. A ruling in support of regulation would have turn American industry on its head by forcing inappropriate and inflexible CO2 regulation across the country, instead of allowing Congress to develop a national program to address CO2.”

Here’s Sierra Club’s list of coal power projects across the country and their status.