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Marten Law Secures Victory in Washington Supreme Court Upholding Scope of GHG Review for Biomass Cogeneration Project

February 27, 2014

(Seattle, WA) - In one of the first rulings of its kind, the Washington Supreme Court has determined that the State properly treated the burning of biomass fuel as not contributing to a pulp mill’s greenhouse gas (GHG) emissions. This ruling upholds the air permit for a biomass-fired cogeneration project for Port Townsend Paper Corporation.

Marten Law represented Port Townsend Paper Corporation in defending the air permit and the associated review of the cogeneration project’s potential environmental impacts. The main issue before the State Supreme Court was whether the environmental review, conducted under Washington’s State Environmental Policy Act (SEPA), properly treated the shift from burning oil to burning biomass in two of the mill’s boilers as a net reduction in GHG emissions. The opponents argued that the fuel source should make no difference, and that all GHG emissions should be subject to the same regulatory constraints. The Department of Ecology (Ecology) had concluded that burning biomass does not increase atmospheric GHG concentrations as biomass is already part of the atmospheric carbon cycle. The court deferred to the agency’s judgment on this question, which was informed by a state statute excluding CO2 from biomass from the definition of GHGs. The court stated that Ecology was not bound by that statute in conducting environmental impact review under SEPA, but that Ecology appropriately considered the legislative intent behind that statute in forming its own judgment on the question.

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