Bully for Biomass: Washington Supreme Court Rejects Greenhouse Gas Claims, Upholds Finding of No Significant Environmental Impact for Biomass Facility

February 27, 2014

The Washington Supreme Court today rejected claims that the potential for greenhouse gas ("GHG") from a biomass facility triggers the requirement to prepare a full Environmental Impact Statement under Washington's State Environmental Protection Act ("SEPA"). Today's decision promises to greatly simplify the permitting process for projects planning to use woody biomass and should help clarify how GHG emissions are treated for biomass-fired facilities, a question that has bedeviled courts and regulators in other contexts. PT Air Watchers et al. v. State of Washington et al., No. 88208-8 (issued Feb. 27, 2014).

The controversy arose from Port Townsend Paper Company's plans to modernize the boiler at its paper mill by increasing the use of woody biomass to fuel the boiler, increase the boiler's firing efficiency, and adding a 25 megawatt generator to produce electricity. The paper company prepared a SEPA "checklist" in accordance with WAC 197-11-960. The checklist concluded that, because the project would reduce burning of fossil fuels by burning woody biomass instead, it would produce a net reduction in GHG emissions. The Department of Ecology agreed, concluding that no EIS was required because the project would not produce significant environmental impacts. A coalition of local environmental groups challenged this finding, but the challenges were rejected both in an administrative appeal and by the reviewing courts. The Washington Supreme Court accepted review and today affirmed Department of Ecology's finding that no significant environmental impacts requiring preparation of an EIS would result from the project.

The thorniest issue tackled in today's opinion is how GHG emissions from biomass production should be treated in environmental impact analysis. The Department of Ecology concluded that GHG emissions from burning fossil fuels should not be treated as equivalent to GHG emissions from biomass facilities because carbon dioxide released from the burning of woody biomass is reabsorbed by growing plants as part of the earth's natural carbon cycle, producing little or no net increase in atmospheric carbon dioxide concentrations, while carbon dioxide emitted by burning fossil fuels is released from geological deposits that would otherwise be sequestered from the atmosphere. As a result, burning fossil fuels adds to the amount of carbon dioxide in the atmosphere, and replacing fossil fuel combustion with biomass combustion, as proposed by Port Townsend Paper, therefore produces a net decrease in GHG emissions.

Today's Supreme Court opinion affirms the Department of Ecology's analysis of GHG emissions. In addition to the usual practice of deferring to Ecology's expert scientific judgment, the Court also took considerable comfort from the Washington's legislature's determination, codified in RCW 70.235.020(3), that emissions from burning woody biomass should not be considered GHGs as long as the carbon sequestration capacity of the region's forests is maintained or increased.

In addition to its determination regarding the treatment of carbon dioxide emissions from biomass plants, today's decision reaches two additional questions that are likely to be of considerable significance for future development of biomass facilities in Washington. First, the Supreme Court rejected the environmental plaintiffs' argument that increasing use of biomass by the Port Townsend plant would increase demand for woody biomass and thereby degrade Washington's forests. The Court rejected this argument on the grounds that existing state laws protect forests from degradation and also that Port Townsend plans to use existing stocks of wood waste rather than harvesting additional trees to fire its biomass burner.

Second, the Court concluded that a specific statute requiring preparation of a full EIS for waste incineration or energy recovery facilities was inapplicable. Although the court concluded that the Port Townsend facility is exempt under a provision exempting facilities in operation prior to January 1, 1989, the Court's reasoning suggests that the statute would not apply to biomass facilities that use only wood waste, as opposed to municipal solid waste, sewage sludge, or other forms of trash.

If you have any questions about the State Environmental Protection Act, environmental impact analysis, air quality regulation, renewable energy development, or other matters related to energy, natural resources, or the environment, please contact a member of GTH's Energy, Telecommunications, and Utilities practice group or Environment & Natural Resources practice group. We're proud that our partner Jim Waldo was recently named 2013 Lawyer of the Year for Energy and Natural Resources Law, and practice group members Don Cohen, Bill Lynn, and Brad Jones were all named among Seattle's Best Lawyers.