Washington Supreme Court Denies SEPA Challenge to Biomass Project
In PT Air Watchers et al. v. Department of Ecology, the Washington Supreme Court recently held that the construction of a woody debris biomass facility did not significantly affect the environment, and thus an Environmental Impact Statement (EIS) was not required under the Washington State Environmental Policy Act (SEPA). Although every biomass project must be evaluated on its merits, the decision strikes a legal blow to project opponents because the Court made two findings that will likely dissuade parties from bringing future challenges.
First, the opponents had asserted that the use of biomass as a substitute fuel for fossil fuels to generate steam would release greenhouse gases, and thus require the preparation of an EIS. The court found that woody debris biomass is part of the “carbon cycle” and will naturally release carbon as it decays, regardless whether it is burned as a fuel. In short, biomass fuel does not add carbon to the atmosphere that would not already be released over time, unlike the burning of fossil fuels. The net result is that the use of biomass as a fuel will decrease greenhouse emissions and dovetail with RCW 70.235.020, the Washington State policy requiring the reduction of greenhouse gas emissions over the next few decades. On this basis, the court held that Ecology could decide that an EIS was not necessary to retrofit the plant for biomass.Second, the opponents asserted that the co-generation plant’s demand for biomass woody debris would result in increased logging of Washington forests, possibly on an unsustainable basis, and thus require the preparation of an EIS. The court found, however, that the Washington Forest Practices Act addresses the use of woody debris for biomass and provides adequate safeguards for the harvesting of woody debris. The project proponent also stated in its permit application that it did not intend to cut any trees but simply use existing biomass on the forest floor. On this basis, the court ruled that an EIS was not necessary.
In this well-reasoned decision, the court swatted away the opponent’s two substantive arguments that an EIS was necessary because biomass fuel causes carbon dioxide emissions and a significant increase in logging in Washington forests. In doing so, the court has provided future biomass project proponents with a shield from legal challenges on these two bases, and it may have a chilling effect on opponents bringing such challenges in the first place.