Only 13 days after EPA issued interpretive guidance stating carbon dioxide (CO2) is not currently a regulated pollutant, and on the same day that the guidance was published in the federal register, environmental groups asked EPA to change its mind. As reported previously, the EPA guidance was released in response to the In re: Deseret decision by the Environmental Appeals Board (“EAB”), which held that EPA had not previously determined whether air permits issued under the Clean Air Act’s New Source Review (“NSR”) program must contain conditions limiting CO2 emissions.

The interpretive guidance, issued on December 18, 2008, expressed EPA’s “definitive interpretation” that the Clean Air Act and EPA regulations do not require CO2 emission limits in air permits, and that EPA regions in the future should be guided by that interpretation in acting on future permit applications. EPA officially published notice of its interpretation in the federal register on December 31, 2009, stating that any challenges to the interpretation “must be brought to the United States Court of Appeals for the District of Columbia Circuit by March 2, 2009.” However, the day of the publication, EPA received a request for reconsideration undersigned by representatives of the Sierra Club, Natural Resources Defense Council, Environmental Defense Fund, Grand Canyon Trust, and many other public interest groups. The groups seek to persuade the incoming Administration to find a way to revoke the guidance and begin regulating CO2 under NSR.