On November 13, 2008, the U.S. Environmental Appeals Board remanded an operating permit back to the U.S. Environmental Protection Agency (USEPA) regional office that issued it. The permit had been granted to a new coal-fired unit at a Utah power plant (operated by Deseret Power Electric Cooperative). The Board ordered the USEPA office to reconsider whether to require the coal-fired unit, as a condition of the permit, to adopt best available control technology (BACT) for its carbon dioxide (CO2) emissions. The Board also required USEPA to develop an adequate record for whatever decision it made. In its reasons, the Court ruled that although the U.S. Clean Air Act (CAA) did not compel the USEPA to impose BACT conditions in the permit, the USEPA is not prevented from doing so by its historical interpretation that CO2 is not subject to regulation under the CAA. In Massachusetts v. EPA, a 2007 case, described in Torys’ Climate Change Bulletin, the U.S. Supreme Court had ruled that CO2 was an “air pollutant” under the CAA, although at the time, the Court did not consider whether it was an air pollutant “subject to regulation” under the CAA.
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