Deseret Decision Regarding CO2 Avoids The Key Question And Creates Significant Uncertainty

Environmental Law Update

In a noteworthy Clean Air Act decision in the wake of Massachusetts v. EPA, 549 U.S. 497 (2007), the Environmental Appeals Board (EAB) avoided the key question of whether carbon dioxide (CO2) is currently "subject to regulation" under the Clean Air Act (Act). In the Matter of Deseret Power Electric Cooperative, EAB App. No. PSD 07-03. (November 13, 2008). It appears that the decision is carefully designed to leave open for the next Administration the question of whether CO2 will be regulated under a key EPA permitting program.

On the one hand, EAB sided with the Environmental Protection Agency (EPA), agreeing that EPA is not required to treat CO2 as "subject to regulation" for purposes of the Prevention of Significant Deterioration (PSD) permitting program. On the other hand, EAB found that EPA could exercise its discretion to treat CO2 as "subject to regulation," and thus require permit limits for CO2 based on the "best available