8. No free pass for “biogenic” carbon dioxide emissions. The ethanol industry has been politically favored for many years. An additional bit of favoritism was provided by the Obama Administration in 2011 when the Environmental Protection Agency (EPA) amended its regulatory definition of “greenhouse gases” to exclude biogenic carbon dioxide from carbon emissions requirements (the exemption is from the Prevention of Significant Deterioration permitting requirement). Under the revised rule, the normal preconstruction review and permitting for greenhouse gases emitted from an ethanol plant (and other plants that derive energy from biological sources such as paper and lumber manufacturers) is waived for three years. But, in 2013 the U.S. District Court for the District of Columbia invalidated the EPA’s amended rule.


Also see Top ten agricultural law developments of 2012


The court held that there was a complete lack of a statutory basis for exempting biogenic carbon dioxide from the carbon emissions requirements. The court also opined that the EPA was “necessarily making it up as it goes along” with respect to greenhouse gas emissions. Center for Biological Diversity, et al. v. Environmental Protection Agency, et al., No. 11-1101, 2013 U.S. App. LEXIS 14108 (D.C. Cir. Jul. 12, 2013).