ZELLER-POWELL 1/10/2012 9:09 AM [367] CHRISTINE ELIZABETH ZELLER-POWELL* Defining Biomass as a Source of Renewable Energy: The Life Cycle Carbon Emissions of Biomass Energy and a Survey and Analysis of Biomass Definitions in States’ Renewable Portfolio Standards, Federal Law, and Proposed Legislation  I. Introduction ........................................................................... 370  II. Energy Generation from Biomass ......................................... 372  III. Greenhouse Gas Implications of Biomass Electricity Generation ............................................................................. 374  A. Carbon Emissions, Storage, and Absorption in Forests ............................................................................ 374  B. Life Cycle Analysis Methodology and Counting Carbon Emissions and Capture ...................................... 378  1. Counting Carbon Emissions from Biomass Combustion and Carbon Capture from Biomass Growth ....................................................................... 379  2. Basic Methodology of a Life Cycle Analysis of Greenhouse Gas Balances for Bioenergy .................. 381  C. Carbon Emissions and Credits from Different Sources of Woody Biomass ........................................... 383  1. Forest Sources of Biomass and Biomass Residues ... 383  a. Study Summary: Manomet ................................. 385  b. Study Summary: Joanneum Research ................ 388  * Associate attorney at Roy S. Haber PC working in toxic tort litigation. J.D. & Masters in Environmental Studies, University of Oregon, 2011. Zeller-Powell was a Senior Editor on the Journal of Environmental Law and Litigation and a Sustainable Land Use Fellow. ZELLER-POWELL 1/10/2012 9:09 AM 368 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 c. Study Summary: Stockholm Environment Institute ............................................................... 389  d. Study Summary: Morris ..................................... 392  e. Summary of Life Cycle Analysis Studies ........... 395  2. Energy Crops ............................................................. 396  D. Conclusions Regarding Emissions from Woody Biomass Electricity ........................................................ 398  IV. Legal Treatment of GHG Emissions from Bioenergy in Definitions of Biomass in State Renewable Portfolio Standards (RPS) .................................................................... 399  A. Definitions of Eligible Biomass in State RPS Programs ........................................................................ 401  B. Summaries of Individual States’ Definitions of Eligible Biomass ............................................................ 402  1. States with Mandatory RPS Programs That Consider Whole Trees to Be Eligible Biomass ......... 402  a. Arizona ............................................................... 402  b. California ............................................................ 403  c. Colorado ............................................................. 404  d. Connecticut ......................................................... 404  e. Delaware ............................................................. 405  f. Hawaii ................................................................. 405  g. Iowa .................................................................... 405  h. Kansas ................................................................. 406  i. Maine .................................................................. 406  j. Maryland ............................................................. 406  k. Michigan ............................................................. 407  l. Minnesota ........................................................... 408  m. Missouri .............................................................. 408  n. Montana .............................................................. 409  o. Nevada ................................................................ 409  p. New Hampshire .................................................. 409  q. New Mexico ....................................................... 410  r. New York ........................................................... 410  s. North Carolina .................................................... 411  t. Ohio .................................................................... 412  u. Oregon ................................................................ 412  v. Rhode Island ....................................................... 413  w. Texas ................................................................... 413  x. Utah .................................................................... 413  y. Washington ......................................................... 414  ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 369 z. Wisconsin ........................................................... 414  2. States with Voluntary RPS Programs That Consider Whole Trees to Be Eligible Biomass ......... 414  a. Indiana ................................................................ 414  b. North Dakota ...................................................... 415  c. Oklahoma ........................................................... 415  d. South Dakota ...................................................... 415  e. Vermont .............................................................. 416  f. Virginia ............................................................... 416  g. West Virginia ...................................................... 417  3. States with Mandatory RPS Programs That Do Not Consider Whole Trees to Be Eligible Biomass .. 417  a. Illinois ................................................................. 417  b. Massachusetts ..................................................... 418  c. New Jersey .......................................................... 418  d. Pennsylvania ....................................................... 419  C. Analysis of Definitions of Eligible Biomass in RPS Programs ........................................................................ 420  V. Legal Treatment of GHG Emissions from Bioenergy in Definitions of Biomass in Federal Law and Proposed Federal Legislation ................................................................ 423  A. Treatment of Woody Biomass from Federal Lands ....... 425  B. Biomass from Private Forestland: Waste Materials Only or Merchantable Whole Trees? ............................. 428  C. Energy Crops and Land Use Change ............................. 431  D. Summary of Federal Definitions of Biomass ................. 432  VI. Conclusions and Recommendations ...................................... 433  ABSTRACT Electricity generated from woody biomass material is generally considered renewable energy and carbon neutral. However, this has recently been criticized by scientists, who argue that the greenhouse gas (GHG) emission profile of bioenergy is nuanced and the carbon neutral label is inappropriate. An initial carbon debt is created when a forest is harvested and combusted for bioenergy. Because forests regrow over a period of years, life cycle analyses show that bioenergy generated from whole trees from forests may not reduce GHG emissions in the short term, as is required to combat climate change. State renewable portfolio standards and federal laws and proposed legislation designed to incentivize renewable energy typically define eligible forms of biomass that qualify for these incentives. Most of ZELLER-POWELL 1/10/2012 9:09 AM 370 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 these definitions are very broad and do not account for GHG emissions from bioenergy. Federal and state laws should incorporate life cycle analyses into definitions of eligible biomass so that these laws incentivize biomass electricity that reduces GHG emissions in the next several decades. I INTRODUCTION Much debate currently surrounds the issue of the carbon neutrality of energy generated from biomass. Many call the energy generated from biomass “carbon neutral” because the carbon emissions released at biomass electricity generating facilities are from carbon that was captured and removed from the atmosphere during the growth of the biomass.1 However, in terms of stack emissions, biomass-fired power plants emit more carbon dioxide per kilowatt-hour than coal-fired power plants.2 Because biomass has generally been considered carbon neutral, GHG emissions from the combustion of biomass have rarely been considered in life cycle analyses (LCA) of biomass energy.3 Several prominent scientists have recently criticized the practice of considering all bioenergy as carbon neutral regardless of the source of the biomass. 4 The regulation of biomass energy as renewable energy does not address carbon emissions from biomass energy in a comprehensive manner, if at all. The Environmental Protection Agency’s (EPA) decision in 2010 not to exempt biomass energy carbon emissions from regulation in the Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (Tailoring Rule)5 and the 1 MANOMET CTR. FOR CONSERVATION SCI., BIOMASS SUSTAINABILITY AND CARBON POLICY STUDY EXECUTIVE SUMMARY 6 (June 2010). 2 GREGORY MORRIS, GREEN POWER INST. & PAC. INST., BIOENERGY AND GREENHOUSE GASES 1 (2008). 3 GIULIANA ZANCHI ET AL., JOANNEUM RESEARCH, THE UPFRONT CARBON DEBT OF BIOENERGY 16 (2010). 4 See, e.g., Timothy Searchinger et al., Fixing a Critical Climate Accounting Error, 326 SCIENCE 527 (2009); Gregg Marland, Accounting for Carbon Dioxide Emissions from Bioenergy Systems, 14 J. INDUS. ECOLOGY 866 (2010); Eric Johnson, Goodbye to Carbon Neutral: Getting Biomass Footprints Right, 29 ENVTL. IMPACT ASSESSMENT REV. 165 (2009). 5 See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,514, 31,590 (June 3, 2010) (codified at 40 C.F.R. § 70.2 (2010)) (defining a major source of air pollutants as emitting or having the potential to emit 100 tons per year or more of GHGs). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 371 EPA’s decision in January 2011 to defer application of this rule to biomass facilities in order to study the issue of carbon emissions from biomass6 indicate that regulation of biomass energy carbon emissions is unsettled and currently evolving. The guidelines for accounting for biogenic carbon dioxide emissions from stationary sources issued by the EPA in September 2011 provide an accounting framework but do not make any recommendations or judgments about whether these emissions should be regulated. Climate scientists argue it is critical that we reduce greenhouse gas emissions in the next twenty to thirty years to avoid irreversible climate change.7 The National Academy of Sciences, in a report commissioned by the U.S. Congress, recently stated that there is a “pressing need for substantial action” to reduce GHG emissions and “the nation should reduce [GHG] emissions substantially over the coming decades.”8 Thus, incentive programs designed to encourage the development of renewable energy sources, such as state “renewable portfolio standards,”9 should incentivize biomass energy that reduces overall carbon emissions in the short to medium term. Life cycle analyses that examine the GHG balances for a variety of sources of biomass energy can inform the creation of legal incentive programs that encourage bioenergy from sources that reduce carbon emissions on the time scale required. This Article focuses on LCAs of GHG emissions from different sources of woody biomass, particularly woody biomass in the Pacific Northwest, and the definitions of eligible woody biomass in state renewable portfolio standards and federal law and proposed legislation. The results of this analysis show that electricity from waste sources of woody biomass and woody energy crops grown in certain conditions are likely to result in reduced GHG emissions within the time period suggested by climate scientists. However, LCAs demonstrate that electricity generated using whole trees does not necessarily reduce GHG emissions within this time period. Most 6 Letter from Lisa Jackson, EPA Adm’r, to Sen. Debbie Stabenow 2 (Jan. 12, 2011), available at www.epa.gov/nsr/ghgdocs/StabenowBiomass.pdf. 7 Timothy Searchinger et al., Use of U.S. Croplands for Biofuels Increases Greenhouse Gases Through Emissions from Land-Use Change, 319 SCIENCE 1238, 1239 (2008); see also James Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim? 2 OPEN ATMOSPHERIC SCI. J. 217, 229 (2008). 8 NAT’L ACAD. SCI., AMERICA’S CLIMATE CHOICES: REPORT IN BRIEF 2–3 (2011). 9 Renewable portfolio standards (RPS) are state laws that require electricity providers to procure a certain percentage of their electricity from renewable energy sources. ZELLER-POWELL 1/10/2012 9:09 AM 372 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 definitions of biomass in state and federal legislation do not address GHG emissions from biomass or limit eligible woody biomass to waste sources, instead generally permitting the use of whole, merchantable trees. II ENERGY GENERATION FROM BIOMASS In 2009, renewable energy accounted for eight percent of the United State’s energy supply.10 Biomass energy constituted half of all renewable energy consumed, or four percent of the nation’s energy supply.11 In comparison, hydroelectric power generated thirty-five percent of renewable energy; wind, nine percent; geothermal, five percent; and solar, one percent.12 Thus, biomass energy plays a significant role in the supply of renewable energy in the United States. The term “biomass” encompasses a wide range of materials. Biomass fuels include forestry and agricultural residues, municipal green waste, sewage sludge and biosolids, organic waste by-products, and energy crops.13 Biomass can either be specifically grown for energy as an energy crop, such as willow or poplar trees, or be waste residues or by-products of other activities.14 Biomass waste residues can be primary, secondary, or tertiary residues.15 Primary residues are by-products of the production of agricultural and forestry crops, which must be gathered from the field to be utilized for energy production.16 Woody biomass primary residues include unused portions of trees from commercial harvesting operations, unused residue from land clearing operations, and forest thinnings from hazardous fuel reduction operations.17 Processing of raw organic materials produces secondary residues, which include 10 ENERGY INFO. ADMIN., DEP’T OF ENERGY, RENEWABLE ENERGY CONSUMPTION AND ELECTRICITY PRELIMINARY STATISTICS 2009 (Aug. 2010), available at http://www .eia.doe.gov/cneaf/alternate/page/renew_energy_consump/rea_prereport.html. 11 Id. 12 Id. 13 Pascale Champagne, Biomass, in FUTURE ENERGY: IMPROVED, SUSTAINABLE AND CLEAN OPTIONS FOR OUR PLANET 151–52 (Trevor Letcher ed., 2008). 14 Id. at 155. 15 Id. 16 Id. 17 Erin G. Wilkerson & Robert D. Perlack, Resource Assessment, Economics and Technology for Collection and Harvesting, in RENEWABLE ENERGY FROM FOREST RESOURCES IN THE UNITED STATES 88 (Barry Solomon & Valerie A. Luzadis eds., 2008). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 373 woody waste material produced at lumber and paper mills.18 Tertiary residues include waste streams of organic materials after the useful lives of these materials have ended.19 Woody biomass tertiary residues include wood from demolition of buildings or other discarded wooden materials. Woody biomass must be harvested, chipped, dried, and transported to the processing facility before it can be converted into electricity.20 Biomass is often air-dried by evaporation by leaving harvested biomass in the forest or at a landing work site nearby.21 One benefit of drying the biomass in the forest is that leaves and needles fall off and replenish the soil.22 Also, drier biomass with fewer leaves and needles stores better because it undergoes less decomposition while in storage.23 Biomass can be converted to energy via three thermal processes: combustion, gasification, and pyrolysis.24 Combustion, or standard burning, of biomass to provide heat or electricity is a common practice in commercial settings.25 Gasification is a more technically involved process that generates fuel gas from biomass.26 Gasification has been demonstrated on a large scale but is not in widespread use due to its relative cost compared to fossil fuel-based energy.27 Pyrolysis results in the production of charcoal, liquid fuel, or gas vapors depending on the process temperature used.28 Fast, high temperature pyrolysis produces liquid biofuel as the main product.29 Combustion of biomass is currently the most viable form of generating electricity from biomass. Cogeneration facilities increase the efficiency of biomass combustion. Cogeneration, also called combined heat and power (CHP), is the practice of utilizing both the 18 Champagne, supra note 13, at 155. 19 Id. 20 Anton C. Vosloo, The Future of Methane and Coal to Petrol and Diesel Technologies, in Lechter, supra note 13, at 81–83. 21 Id. 22 Id. 23 Id. 24 TONY BRIDGWATER, Bioenergy: Future Prospects for Thermal Processing of Biomass, in FUTURE ELECTRICITY TECHNOLOGIES AND SYSTEMS 121 (Tooraj Jamasb et al. eds., 2006). 25 Id. at 122. 26 Id. 27 Id. at 132. 28 Id. at 134. 29 Id. at 135 tbl.5.3. ZELLER-POWELL 1/10/2012 9:09 AM 374 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 recovered, low quality heat generated by combustion in addition to the electricity generated.30 The efficiency of the energy generating system increases as more of this heat is used.31 Currently, most biomass electricity plants do not utilize this heat unless the plant is co-located with an industry that can use the heat,32 such as a wood drying operation. Biomass encompasses a broad category of natural materials, many of which have been used by humans to produce energy for centuries. However, today’s large-scale energy use presents new dilemmas in terms of carbon emissions and the ability of forests and agricultural lands to sustainably produce biomass. III GREENHOUSE GAS IMPLICATIONS OF BIOMASS ELECTRICITY GENERATION The overall carbon footprint of biomass electricity depends on many things, including the source of the biomass, transportation of the biomass, the method of electricity production, and, in the case of waste sources of biomass, emissions from alternative disposal methods that are avoided by using biomass to produce electricity. In terms of the source of biomass, it is important to distinguish between biomass energy crops, waste sources of biomass, and other sources of woody biomass. The various methods of producing electricity from biomass, including the combustion of wood chips in a boiler, pyrolysis of biomass (biochar), and conversion of biomass into liquid fuels, result in different carbon footprints. The timing and rate of carbon emission and absorption by forests can also impact the overall carbon footprint of biomass electricity. A. Carbon Emissions, Storage, and Absorption in Forests Forests absorb, store, and emit carbon. Forests absorb carbon because trees and other plants absorb carbon dioxide as part of the 30 Barry D. Solomon & Nicholas H. Johnson, Introduction, in Solomon & Luzadis, supra note 17, at 18. 31 MANOMET CTR. FOR CONSERVATION SCI., MASSACHUSETTS BIOMASS SUSTAINABILITY AND CARBON POLICY STUDY: REPORT TO THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF ENERGY RESOURCES 22 (Thomas Walker ed., 2010), available at http://www.manomet.org/sites/manomet.org/files/Manomet_Biomass_Report _Full_LoRez.pdf. 32 See id. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 375 process of photosynthesis.33 Forests store the absorbed carbon in the form of live and slowly decomposing woody and plant materials, as well as in the soil.34 Woody material harvested from forests and preserved as wood (not burned or allowed to decompose) continues to store carbon.35 The carbon stored in forests is emitted during forest fires,36 through decomposition of organic materials (i.e., fallen trees, branches, leaves), 37 and when woody material harvested from forests is burned.38 Based on the rates of absorption and emission of carbon, forests can be carbon sinks, carbon sources, or carbon neutral at a given point in time. Forests are carbon sinks when they absorb more carbon than they emit and are carbon sources when they emit more carbon than they absorb.39 A review of studies on carbon emissions and absorption found that, on a global scale, forests between fifteen and 800 years old are usually carbon sinks.40 Much of the analysis here will focus on Pacific Northwest forests because many of these forests are among the most productive and long-lived forests in the world, making these forests potentially a large source of biomass.41 Overall, forests in the West Cascade region were a carbon source during most of the 1900s due to the conversion of old-growth forests to Douglas fir plantations, but these forests became carbon sinks as harvest levels decreased in the 1990s.42 While forests in western Oregon tend to be carbon sinks, large forest fires, such as the Biscuit 33 Photosynthesis, BRITANNICA ONLINE ENCYCLOPEDIA http://www.britannica.com /EBchecked/topic/458172/photosynthesis (last visited Oct. 30, 2011). 34 Sebastiaan Luyssaert et al., Old-Growth Forests as Global Carbon Sinks, 455 NATURE 213, 213 (2008). 35 OR. FOREST RES. INST. ET AL., FORESTS, CARBON AND CLIMATE CHANGE: A SYNTHESIS OF SCIENCE FINDINGS 127 (2006), available at http://library.state.or.us /repository/2007/200708241530345/. 36 Garret W. Meigs et al., Forest Fire Impacts on Carbon Uptake, Storage, and Emission: The Role of Burn Severity in the Eastern Cascades, Oregon, 12 ECOSYSTEMS 1246, 1247 (2009). 37 Luyssaert et al., supra note 34. 38 OR. FOREST RES. INST. ET AL., supra, note 35, at 8. 39 Luyssaert, supra note 34, at 213. 40 Id. at 213, 214 fig.1; Tara Hudiburg et al., Carbon Dynamics of Oregon and Northern California and Potential Land-Based Carbon Storage, 19 ECOLOGICAL APPLICATIONS 163, 170 tbl.2 (2009). 41 Hudiburg et al., supra note 40, at 178. 42 B.E. Law et al., Disturbance and Climate Effects on Carbon Stocks and Fluxes Across Western Oregon USA, 10 GLOBAL CHANGE BIOLOGY 1429, 1441 (2004). ZELLER-POWELL 1/10/2012 9:09 AM 376 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 Fire in 2002, emit enormous amounts of carbon and can turn a forest sink into a carbon source for a decade or more after the fire.43 Young forests (less than ten to fifteen years old) are often carbon sources because new forests typically form after the removal or disturbance of a previous forest, resulting in carbon emissions from decaying residue materials that are greater than the carbon absorbed by new growth.44 Even-aged forests composed of trees of the same age, usually the result of replanting after a harvest, are more likely to become carbon sources when they age than old-growth forests with trees of mixed age.45 A study of forests across the United States and Canada found forests are generally carbon sources for twenty years after stand replacing harvests and at least ten years after stand replacing fires, with local climate playing a significant role in the rate of growth of vegetation and decomposition of organic debris.46 Insect infestations and thinning operations have the greatest impact on forest carbon flux in the year they occur, with a relatively short recovery period (five to ten years).47 However, full assessment of the effects of commercial thinning over longer time periods will require more study.48 Forests are carbon neutral when they emit and absorb equal amounts of carbon.49 It has been generally thought that older forests are carbon neutral, but newer research shows this is not necessarily the case.50 Based on an analysis of stand age, total biomass, and the net rate of carbon absorption for forests in Oregon, a recent study found forests in all of the study regions (Coast Range, West Cascades, East Cascades, and Klamath Mountains) continued to absorb more carbon than they released, including forests with a stand age of more than 200 years.51 The authors of this study recommend using a 200- 43 Id. at 1441–42. 44 Luyssaert et al., supra note 34, at 213. 45 Id. at 214; Law et al., supra note 42, at 1430. 46 B.D. Amiro et al., Ecosystem Carbon Dioxide Fluxes After Disturbance in Forests of North America, 115 J. GEOPHYSICAL RES. G00K02, Oct. 27, 2010, at 6–7. 47 Id. at 9. 48 Id. at 9–10. 49 Luyssaert et al., supra note 34, at 213. 50 See, e.g., Hudiburg et al., supra note 40, at 170 tbl.2; Luyssaert et al., supra note 34, at 213. 51 S. Van Tuyl et al., Variability in Net Primary Production and Carbon Storage in Biomass Across Oregon Forests—An Assessment Integrating Data from Forest Inventories, Intensive Sites, and Remote Sensing, 209 FOREST ECOLOGY & MGMT. 273, 281–82 tbl.1 (2005). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 377 year cutting rotation cycle to maximize carbon stocks in Oregon forests.52 Forests in different eco-regions accumulate biomass at different rates and accumulate different maximum amounts of biomass.53 A study of federal inventory data and additional field measurements found that in the Oregon Coast Range and West Cascade regions, the rate of accumulation of biomass peaks at about eighty years, but the total amount of biomass continues to increase in forests over 300 years old.54 However, both of these regions have high rates of accumulation to begin with, and the decline in the rate of accumulation is only conspicuous in the Coast Range region.55 The decline is more pronounced in the Coast Range region because these forests are some of the “most productive temperate forests in the world” with aboveground carbon stocks that are similar to tropical forests.56 In comparison, the rate of accumulation in the Klamath Mountain region is initially half the rate for the Coast Range and peaks when the trees are approximately sixty years old, but forests in the Klamath Mountains continue to accumulate biomass for at least 600 years.57 The maximum amount of live biomass in the Coast Range and Klamath Mountain regions is about three to four times that of the East Cascade and Blue Mountain regions.58 The differences between regions in the rates of accumulation and maximum biomass make it difficult to generalize about carbon storage potential across all forests. The same study found that in Oregon and Northern California, the average age of trees is significantly greater on public land than private land.59 For example, in the Coast Range and West Cascade regions, the average stand age on public lands is approximately twice that on private land (156 versus 83 and 254 versus 105, respectively).60 This difference in age results in carbon stores that are thirty to fifty percent higher on public land in Oregon and Northern California than the 52 Id. at 289. 53 Hudiburg et al., supra note 40, at 168. 54 Id. 55 Id. at 168, 172 fig.4. 56 Id. at 175. 57 Id. at 170 tbl.2. 58 Id. at 168. 59 Id. 60 Id. ZELLER-POWELL 1/10/2012 9:09 AM 378 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 private land in the same area.61 In order to maximize carbon stores, forests should be managed to maximize total biomass accumulation rather than to maximize the rate of accumulation.62 While carbon storage in Oregon and Northern California forests could be double current levels, the authors of this study found it may be more realistic to “increase rotation ages by 30–50 years or reduce the acreage that is harvested in areas more likely to reach the theoretical [maximum carbon storage] levels (Coast Range, West Cascades, Klamath Mountains).”63 This discussion of rates of accumulation of biomass and maximum levels of biomass accumulation suggests forests’ abilities to accumulate and store carbon should be recognized and considered in evaluating the desirability of using forest biomass for electricity. Also, the rate of accumulation of biomass in forests is significant in calculating the overall carbon footprint of biomass electricity produced from forest sources of biomass, for example, in a life cycle analysis. B. Life Cycle Analysis Methodology and Counting Carbon Emissions and Capture A life cycle analysis involves the “investigation and evaluation of the environmental impacts of a given product or service,” including all steps of the production chain and full life cycle.64 LCA is a widely accepted methodology for calculating the GHG emissions balance for bioenergy systems.65 A GHG balance for a bioenergy system must account for emissions of carbon dioxide, methane, and nitrous oxide,66 and the absorption by biomass of carbon dioxide from the atmosphere.67 Also, LCAs for bioenergy projects should be designed to determine the additionality of the project, or the extent to which GHG emission reductions represent additional reductions compared 61 Id. at 175. 62 Id. at 177. 63 Id. at 178–79. 64 Francesco Cherubini, GHG Balances of Bioenergy Systems—Overview of Key Steps in the Production Chain and Methodological Concerns, 35 RENEWABLE ENERGY 1565, 1566 (2010). 65 Id. at 1565. 66 Id. at 1567. Because these three compounds impact climate change in varying degrees, their impacts are standardized relative to the effect of carbon dioxide, using the unit “CO2-equivalent” (CO2-eq). Id. 67 Ari Rabl, How to Account for CO2 Emissions from Biomass in an LCA, 12 INT’L J. L.C.A. 281, 281 (2007). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 379 to today’s status quo.68 This concept is particularly relevant when determining whether to assign credits in LCAs for carbon captured during the growth of biomass. 1. Counting Carbon Emissions from Biomass Combustion and Carbon Capture from Biomass Growth Debate exists among policy makers, scientists, environmentalists, and the biomass industry as to whether or not carbon emissions from combustion of biomass should be included in the GHG LCA for a bioenergy system. This debate is related to the timing of the capture, release, and recapture of the carbon emissions. To consider biomass electricity carbon neutral at the time of generation requires either assigning a carbon credit for the carbon captured during the growth of the biomass or assuming that the carbon emissions from combustion of biomass are immediately recaptured by growing plants.69 Both of these assumptions may be reasonable for energy crops. Assuming immediate recapture could be acceptable for fast growing plants such as energy crops harvested annually or on a relatively short timescale.70 Also, assigning a carbon credit for the carbon captured during biomass growth is suitable for bioenergy crops planted specifically for the purpose of absorbing carbon for conversion to energy because the carbon captured represents additional carbon absorbed over today’s status quo. If we assign a credit for the carbon captured by the biomass as it grew, prior to combustion for energy, then the credits for this captured carbon will cancel out the emissions from combustion, resulting in zero net emissions (ignoring any emissions from production, fertilizer, transportation, land use change, or other sources and any changes in soil carbon). However, it does not seem appropriate to assume immediate recapture of carbon or to assign a carbon capture credit in an LCA for non-energy-crop forms of biomass, for example, natural forests or forests grown for lumber. Most trees in forests grow slowly, making the assumption of immediate or near immediate recapture inapplicable. Also, it does not make sense to credit the capture of carbon by non-energy-crop biomass in an LCA because the carbon 68 Timothy G. Foley et al., Extending Forest Rotation Age for Carbon Sequestration: A Cross-Protocol Comparison of North American Forest Offsets, 259 FOREST ECOLOGY & MGMT. 201, 204 (2009). 69 See ZANCHI ET AL., supra note 3, at 16. 70 See id. ZELLER-POWELL 1/10/2012 9:09 AM 380 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 absorbed by this biomass does not represent additional carbon absorption relative to the status quo today. Because we are trying to decrease our net carbon emissions based on today’s levels, when doing an LCA of GHG emissions from bioenergy, it does not make sense to credit carbon that does not represent additional carbon captured. The term “upfront carbon debt” is used to describe the carbon emissions profile of forests harvested for bioenergy. Because there is a delay between the release of carbon during combustion and the recapture of carbon by forest regrowth, an upfront carbon debt exists.71 This upfront carbon debt takes several decades of forest regrowth to erase, as discussed below in part C, which means biomass energy does not necessarily reduce carbon emissions in the short to medium term (twenty to fifty years).72 Also, while new trees or other crops can recapture the amount of carbon dioxide released during combustion for bioenergy,73 there is no guarantee replanting will occur or that forests will be allowed to grow for a sufficient time to recapture enough carbon to offset the original release. Because of these complications, many scientists argue that GHG emissions from and captured by biomass should be included in LCAs.74 The fact that bioenergy can have a sizable upfront carbon debt is significant because GHG emissions must be reduced in the next twenty to thirty years to combat climate change.75 Carbon dioxide molecules from biomass electricity behave identically to carbon dioxide molecules from coal and other fossil fuels in terms of impacts on climate change. Therefore, we must determine the real effectiveness of woody biomass to offset GHG emissions in a short- term time frame.76 LCAs that account for the release and recapture of carbon are a useful tool for performing such an analysis. 71 Id. at 5. 72 Id. 73 ROBERT L. EVANS, FUELING OUR FUTURE: AN INTRODUCTION TO SUSTAINABLE ENERGY 101 (2007); Champagne, supra note 13, at 152. 74 See generally Rabl, supra note 67; Johnson, supra note 4, at 167; Searchinger et al., supra note 4, at 528; Marland, supra note 4 at 866. 75 Searchinger et al., supra note 7, at 1240; see generally Hansen, supra note 7. 76 ZANCHI ET AL., supra note 3, at 5. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 381 2. Basic Methodology of a Life Cycle Analysis of Greenhouse Gas Balances for Bioenergy An LCA of GHG emissions for a bioenergy system requires calculating the total GHG emissions of the bioenergy system and the fossil fuel system the bioenergy system will replace, referred to as the reference energy system.77 The GHG savings of the bioenergy system relative to the reference system are calculated by subtracting the GHG emissions of the bioenergy system from the GHG emissions of the reference system.78 A number of different units can be used to express the results of the GHG balance. For energy crops, expressing GHG emissions in terms of kilograms of CO2-eq per acre allows comparison of the land use efficiency of a given energy crop.79 For biomass residue feedstock, using the units of kilograms of CO2-eq per kilowatt-hour allows comparison of the emissions across different types of feedstock or type of energy.80 Using the units of kilograms of CO2-eq per kilogram of feedstock allows comparison of alternative fates or uses for a given residue.81 Final outcomes are also sometimes presented on a per year basis.82 In order to make a valid comparison between the GHG emissions of a bioenergy system and a fossil fuel reference system, the systems must similarly include emissions from production, distribution, and combustion of the fuel.83 The type of fossil fuel used in the reference system should be specified because oil, natural gas, and coal have different GHG emission factors.84 For example, the GHG savings of a bioenergy system relative to a coal reference system are much larger than when natural gas is used for the reference system.85 Whether the biomass is grown as an energy crop or is a residue or by-product of another activity has an impact on the methodology for calculating the GHG emissions of a bioenergy system.86 Because 77 Bernhard Schlamadinger et al., Towards a Standard Methodology for Greenhouse Gas Balances of Bioenergy Systems in Comparison with Fossil Energy Systems, 13 BIOMASS & BIOENERGY 359, 364 (1997). 78 Cherubini, supra note 64, at 1567. 79 Id. at 1568. 80 Id. 81 Id. 82 Id. 83 Id. 84 Id. 85 Id. 86 Id. ZELLER-POWELL 1/10/2012 9:09 AM 382 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 biomass residues are produced regardless of whether they are utilized for bioenergy, the avoided GHG emissions from the alternative fates of the residues must be credited in an LCA of GHG emissions for a residue-based bioenergy system.87 All of the energy and material inputs of the growing and cultivating phases are attributed to the primary product, not the residues.88 Thus, emissions attributed to energy crops include GHG emissions from the manufacture and use of fertilizer, herbicides, and farm machinery used during the growth and harvest stages.89 Any GHG emissions from the manufacture and use of machinery to collect or bundle residues after the primary crop has been extracted should be attributed to the residues. GHG emissions from drying, chopping, transportation, and combustion must be accounted for both energy crops and biomass residues.90 When bioenergy production involves a change in land use in order to grow the biomass material, GHG gas emissions are created as a result of the land use change and must be included in a complete LCA.91 For example, if forest or grassland is cleared to grow energy crops, the loss of stored carbon from belowground biomass (roots), soil, and the cleared aboveground vegetation must be counted.92 This type of land use change is called a direct land use change.93 The cultivation of bioenergy crops can also result in indirect land use change when bioenergy crops are planted on existing agricultural land and other land is brought into cultivation to grow the crops displaced by the energy crops.94 The magnitude of the GHG emissions will depend on the original state of the land.95 These emissions happen relatively quickly but can be amortized over a period of years when included in an LCA.96 Biomass residues and bioenergy crops grown 87 Id. at 1570. The term “alternative fates” is synonymous with “prior uses.” 88 Id. 89 Id. 90 Id. 91 Searchinger et al., supra note 7, at 1238. 92 See Joseph Fargione et al., Land Clearing and the Biofuel Carbon Debt, 319 SCIENCE 1235, 1236 (2008). 93 Cherubini, supra note 64, at 1571. 94 Id. This phenomenon is also referred to as “leakage.” 95 Compare Searchinger et al., supra note 7, at 1239, with ZANCHI ET AL., supra note 3, at 29–30 (comparing land use change GHG emissions for different land types). 96 See generally Alissa Kendall et al., Accounting for Time-Dependent Effects in Biofuel Life Cycle Greenhouse Gas Emissions Calculations, 43 ENVTL. SCI. & TECH. 7142 (2009); Searchinger et al., supra note 7, at 1239. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 383 on unproductive land or abandoned agricultural land do not create land use change or associated emissions.97 Thus, whether biomass electricity results in lower carbon emissions than fossil fuel-based electricity is a complicated matter that depends, in part, on the source of the biomass fuel, whether there is a change in land use, the type of replaced fossil fuel, the rate of regrowth of vegetation, and the time frame considered.98 The outcomes of LCAs of GHG emissions often vary for similar systems because different basic assumptions about a variety of factors—including the type of biomass source, the inclusion or exclusion of various parts of the energy production process, and end-use technologies—often differ.99 These differences make comparisons between LCA studies difficult. C. Carbon Emissions and Credits from Different Sources of Woody Biomass The type of biomass material used as fuel impacts the GHG balance of bioenergy. Woody biomass fuels can be divided into four categories: energy crops, woody waste materials, thinnings from overgrown forests resulting from fire suppression, and existing natural forests or forests grown for lumber. Each of these categories of fuel has a different carbon emissions profile.100 1. Forest Sources of Biomass and Biomass Residues Generation of electricity from treetops, limbs, and other unmerchantable materials left in the forest after timber harvests results in fewer overall carbon emissions and a shorter carbon recovery time as compared to other sources of woody biomass.101 This is because biomass waste is typically burned in slash piles or left to decompose, both of which produce carbon emissions. As discussed above, when evaluating the carbon emissions from electricity generated from waste sources of woody biomass, emissions from alternative disposal methods that are avoided by using biomass to produce electricity must be considered. In other words, the emissions 97 Searchinger et al., supra note 7, at 1240; Fargione et al., supra note 92, at 1236. 98 Marland, supra note 4, at 868; see also ZANCHI ET AL., supra note 3, at 5 (noting that whether biomass energy reduces GHG emissions depends on “the source of wood, the efficiency of conversion, the type of substituted fuel and the mix of final products”). 99 Cherubini, supra note 64, at 1565. 100 MANOMET CTR. CONSERVATION SCI., supra note 31, at 6. 101 Id. at 109; see also ZANCHI ET AL., supra note 3, at 32 (assuming annual extractions). ZELLER-POWELL 1/10/2012 9:09 AM 384 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 produced by electricity generation must be compared to the would-be emissions from burning slash piles or decomposing biomass. The first step in this process is to identify the various alternative disposal methods and determine the emissions from these disposal methods. Waste sources of woody biomass include forestry and agricultural residues, waste from wood products industries, construction debris, and urban tree care and landscaping waste. In the United States, by one measure, approximately sixteen percent of the total volume removed during logging is residue consisting of treetops and small branches.102 Because this material is typically uneconomical to remove, it is often burned on-site in slash piles to reduce fire danger.103 The Oregon Forest Practice Administrative Rules allow “mechanical processes, fire, . . . [and] other means” as methods to minimize woody biomass or slash residue from harvesting operations.104 In Oregon, woody biomass residues generated from forestry activities are generally burned on-site in slash piles or left to decompose.105 Waste sources of biomass will produce emissions regardless of the manner of disposal. Combustion of biomass in slash piles or in energy facilities produces carbon dioxide emissions.106 Combustion of biomass in slash piles also produces carbon monoxide and fine particulate matter (PM2.5), but decomposing biomass and using biomass to produce electricity results in little to no production of these pollutants.107 When biomass decomposes, whether on the forest floor, in a landfill, or in any other location, carbon dioxide and, potentially, methane are released.108 Decomposing biomass that is naturally dispersed on the forest floor is not likely to release methane, but methane can form when biomass is put into landfills or heaped into slash piles and left to decompose.109 102 Wilkerson & Perlack, supra note 17, at 69. 103 Id. at 70. 104 OR. ADMIN. R. 629-615-0000(2) (2010). 105 CARRIE LEE ET AL., STOCKHOLM ENVTL. INST & OLYMPIC REGION CLEAN AIR AGENCY, GREENHOUSE GAS AND AIR POLLUTANT EMISSIONS OF ALTERNATIVES FOR WOODY BIOMASS RESIDUES 20 (2010), available at www.orcaa.org/index.php/download _file/view/429/114/. 106 GREGORY MORRIS, GREEN POWER INST. & NAT’L RENEWABLE ENERGY LAB., THE VALUE OF THE BENEFITS OF U.S. BIOMASS POWER 7 (1999), available at http://www .energyproducts.com/Documents/NREL%20Biomass%20Power%20value.pdf. 107 LEE ET AL., supra note 105, at 33–34 figs.10 & 11. 108 Id. at 48. 109 Id. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 385 Because basic assumptions about a variety of factors often differ, and because there are very few analyses that compare carbon emissions from the various alternative fates of logging residues,110 comparisons between LCA studies are difficult. The following sections examine the methodologies and results of several studies of GHG balances of bioenergy generated from woody biomass and woody biomass residues. a. Study Summary: Manomet The Commonwealth of Massachusetts Department of Energy Resources commissioned a study by the Manomet Center for Conservation Sciences (Manomet study) that addresses, among other things, the GHG implications of shifting from fossil fuel energy sources to forest biomass sources in Massachusetts.111 The Manomet study utilizes a “comprehensive lifecycle carbon accounting framework” that addresses emissions from “bioenergy combustion technology, the fossil fuel technology it replaces, and the biophysical and forest management characteristics of the forests from which the biomass is harvested.”112 This approach allows analysis of the decrease over time in the carbon debt generated from combustion of biomass as the harvested forest regrows.113 However, this study does not account for changes in soil carbon, which, if accounted for, would tend to increase the initial carbon debt.114 The Manomet study does not focus on the use of woody biomass residues as an independent fuel source but as part of a bioenergy harvest from a forest that includes both whole trees and residues.115 The authors included whole trees because woody residues are not available in sufficient quantities to supply the proposed expansion of biomass electricity in Massachusetts and would be less cost effective than whole trees.116 110 Id. at 18; see also HEINZ CTR. & PINCHOT INST. FOR CONSERVATION, FOREST SUSTAINABILITY IN THE DEVELOPMENT OF WOOD BIOENERGY IN THE U.S. 2 (2010), available at www.pinchat.org/uploads/download?filedId=677. 111 MANOMET CTR. CONSERVATION SCI., supra note 31, at 6. 112 Id. 113 See, e.g., id. at 6 fig.1, 105. 114 Id. at 83; see also MARY S. BOOTH, REVIEW OF THE MANOMET BIOMASS SUSTAINABILITY AND CARBON POLICY STUDY 18–19 (July 2010), available at http://www.catf.us/resources/whitepapers/files/201007-Review_of_the_Manomet _Biomass_sustainability_and_Carbon_Policy_study.pdf. 115 See MANOMET CTR. CONSERVATION SCI., supra note 31, at 109. 116 Id. at 33, 39. ZELLER-POWELL 1/10/2012 9:09 AM 386 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 The study used multiple harvest scenarios to analyze the timing of the recapture of carbon released as a result of electricity generation from woody biomass. The scenarios differ in terms of harvest intensity and whether or not treetops and limbs are utilized. The two main types of scenarios are “business as usual” harvests and biomass harvests.117 Business as usual (BAU) harvests are based on logging practices in Massachusetts where harvests typically remove only the larger, higher quality trees, and total removal is around twenty percent of the “above-ground live stand carbon” in a forest.118 No treetops or limbs are removed from the forest as part of a BAU scenario harvest.119 Biomass harvest scenarios include more intensive removal of trees than a BAU scenario harvest; they generate more treetops and limbs than a BAU scenario and include the removal and use of sixty- five percent of treetops and limbs.120 Of the six scenarios analyzed, the rate of carbon recapture by the regrowing forest was fastest for the scenario with “heavy BAU” removals (thirty-two percent of aboveground live stand carbon) and “light biomass” removals (twenty percent of aboveground live stand carbon and forty percent of treetops and limbs removed) with approximately eighty-six percent of the carbon recaptured after ninety years.121 This is because the light biomass harvest contains a proportionally larger amount of logging residues that would otherwise decay and add to the carbon debt.122 Harvest levels this light would not necessarily produce an adequate supply of biomass materials to support a viable, expanded biomass industry in Massachusetts.123 In the scenarios where removals approach clear-cut levels, approximately sixty-eight percent of the carbon is recaptured after ninety years.124 None of these six scenarios models the use of only treetops and limbs as biomass fuel because these materials are not generated in Massachusetts in sufficient quantities to play a significant role in the biomass industry.125 However, the authors note that when biomass fuel consists of only treetops and limbs, 117 Id. at 101. 118 Id. at 107. 119 Id. at 84 exhibit 5-2, 107. 120 Id. at 83, 101 exhibit 6-3. 121 Id. at 108. 122 Id. 123 Id. 124 Id. (exhibit 6-9, scenarios 3 & 6). 125 Id. at 110. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 387 approximately sixty-eight percent of the carbon is recaptured after ten years and ninety-seven percent is recaptured after fifty.126 The study finds that the use of treetops and limbs makes biomass electric power “look favorable” to natural gas electric power, but the use of this type of fuel is not included in the analysis of avoided emissions discussed below.127 However, accounting for avoided emissions from fossil fuels shortens the length of time required to recover the initial carbon debt.128 For example, for the harvest scenario discussed above (heavy BAU/light biomass), when a typical biomass electric facility replaces a coal electricity facility, the carbon debt is repaid in approximately twelve years and a carbon dividend of sixty-eight percent is realized in ninety years.129 However, for all other harvest scenarios considered, when a biomass electricity facility replaces a coal electricity facility, the carbon debt was repaid in approximately twenty-one to thirty-two years.130 In contrast, when a biomass electric facility replaces a gas electric facility, depending on the harvest scenario, the carbon debt will take a minimum of forty-five years and in some cases ninety years to repay.131 Regardless of the type of fossil fuel, the initial carbon debt of biomass energy is repaid faster when biomass is used to generate heat than when biomass is used to generate electricity.132 This study notes several key findings and identifies issues and choices policymakers must address. The key findings include that harvest practices and intensities, the type of energy producing biomass technology, and the type of fossil fuel energy plant being replaced have significant impacts on the magnitude of carbon debts from biomass energy.133 Because the scenarios considered in this study generally indicate biomass energy results in short-term increases in GHG levels but lower long-term GHG levels, policymakers must weigh the long-term benefits with the short-term 126 Id. Treetops and limbs left in the forest take about ten years to decay. Id. at 93. 127 Id. at 110 exhibit 6-12; see id. at 112 (the use of only treetops and limbs as fuel is not included in exhibit 6-13). 128 MANOMET CTR. CONSERVATION SCI., supra note 31, at 108, 112 (compare exhibit 6- 13 with exhibit 6-9). 129 Id. at 112. 130 Id. at 112 (exhibit 6-13). 131 Id. 132 See id. (Carbon debt is smaller when biomass replaces thermal gas energy than when biomass replaces electric gas energy for all harvest scenarios.). 133 Id. at 107, 105, 112. ZELLER-POWELL 1/10/2012 9:09 AM 388 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 drawbacks.134 The authors also note that this study focused on biomass from natural forests (including both whole trees and residues) in Massachusetts so the results of this study should not be applied to other sources of biomass, and generalization of results to areas beyond Massachusetts and New England is problematic.135 Finally, the authors note that if policymakers believe no or low carbon energy sources will be developed in the next couple of decades, it makes less sense to promote the development of biomass energy with high initial carbon debts and longer payback periods.136 b. Study Summary: Joanneum Research Scientists with Joanneum Research were some of the first researchers to study life cycle analyses of carbon emissions when forests are harvested for bioenergy, beginning in the mid-1990s.137 Early analyses noted the importance of the timescale of carbon emissions and recapture for forestry-based bioenergy.138 An early model was based on a generic forest with average growth rates and a sixty year harvest rotation; included the displaced emission from fossil fuels; and assumed twenty-three percent of the harvested biomass was left on-site, fifty-five percent was used for wood and paper products, and twenty-two percent was used for energy production.139 This model indicated a little over forty years were required to reach zero net carbon emissions.140 Rates of forest regrowth, the efficiency of conversion of biomass into energy, the type of fossil fuel being replaced, and the efficiency of the manufacture and use of wood products to displace more energy- intensive materials were identified as important factors impacting the net carbon balance of forestry-based bioenergy.141 Scientists at Joanneum Research also noted as early as 1996 that the best use of forests could be simply to let the forests stand and store carbon.142 134 Id. at 113–14. 135 Id. at 113. 136 Id. 137 Id. at 95; see, e.g., B. Schlamadinger & G. Marland, Full Fuel Cycle Carbon Balances of Bioenergy and Forestry Options, 37 ENERGY CONSERVATION & MGMT. 813 (June–Aug. 1996). 138 See, e.g., Schlamadinger & Marland, supra note 137, at 818. 139 Id. at 814–15. “The growth rate in the early lifetime is given as 2 tC ha-1 yr -1 and declining as the forest matures.” Id. at 14. 140 Id. at 815. 141 Id. at 818. 142 Id. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 389 More recent research has reaffirmed the importance of these factors and noted the significance of any land use changes resulting from bioenergy projects, such as conversion of natural forest to managed forest or crops.143 A recent study from Joanneum Research notes that, for woody biomass residues from logging operations in Finland left in the forest to decay, after twenty years, approximately ninety percent of the carbon in the residues will have been released to the atmosphere.144 By examining studies of woody biomass removal in boreal or temperate forests, this study determined that, when bioenergy from woody biomass residues replaces natural gas, after twenty years, carbon emissions from the bioenergy were eighty percent of the emissions that would have been emitted by using natural gas.145 After fifty years, carbon emissions from bioenergy were seventy percent of natural gas emissions.146 If bioenergy from residues replaces coal, carbon emissions are reduced to forty percent of emissions from fossil fuels after twenty years and to thirty percent of emissions from fossil fuels after fifty years.147 This represents a reduced rate of carbon emissions but indicates using woody biomass residues is not carbon neutral. c. Study Summary: Stockholm Environment Institute The Olympic Region Clean Air Agency (ORCAA) commissioned the Stockholm Environment Institute (SEI) to study air pollutant emissions from the alternative fates of logging residues in the Pacific Northwest and develop a Woody Biomass Emissions Calculator.148 SEI designed the report and calculator to be used by decision makers to compare air pollutant emissions from various alternative fates of logging residues.149 This study is unique because it focuses on forests, fates of woody residues, and types of energy used in the Pacific 143 See Marland, supra note 4, at 868. 144 ZANCHI ET AL., supra note 3, at 23. 145 Id. at 32 tbl.5. (CN for substituting for natural gas is .2 after twenty years (0.6-0.4). Thus the biomass emissions are eighty percent of those of natural gas.). Emissions from transportation and processing (chipping) of the biomass are not included in this model. Id. at 18. This should not affect the results greatly because emissions from transportation and processing typically account for a small percentage of overall emissions from production. See LEE ET AL., supra note 105, at 39; see MORRIS, supra note 2, at 22. 146 ZANCHI ET AL., supra note 3, at 32. 147 Id. 148 See LEE ET AL., supra note 105, at 2. 149 Id. at 18. ZELLER-POWELL 1/10/2012 9:09 AM 390 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 Northwest. This study concludes that the vast majority of GHG emissions from the use of woody biomass residues to generate electricity result from the use or processing (generally combustion) of the residues rather than the gathering, chipping, and transporting of residues.150 Also, this study concludes that woody biomass residues that displace fossil fuels result in the greatest reductions in net GHG emissions when the most efficient biomass electricity generation methods are used (e.g., industrial boilers).151 The approach taken by SEI focuses solely on the “post-harvest to grave” emissions from alternative fates of woody biomass residues rather than a full life cycle analysis.152 By design, this approach does not account for emissions from forestland management practices or the effects of carbon sequestration.153 Thus, this approach does not assess overall emissions or the impact of different forestland management practices on carbon sequestration over time.154 Also, this study does not consider the impact of black carbon155 or aerosol PM2.5156 emissions on climate change.157 The method used by SEI to calculate the net carbon emissions from various alternative fates for woody biomass residues can be divided into three main steps. First, the system emissions, the carbon emissions resulting from the “gathering, transporting, processing, and using or disposing of woody biomass residues,” are calculated.158 Second, displaced emissions, the carbon emissions that would have occurred from products that are not used because woody biomass residues are used instead (e.g., electricity generated from hydropower or fossil fuels), are calculated.159 Third, the displaced emissions are subtracted from the system emissions to determine the net carbon emissions.160 Finally, the net emissions are compared for various 150 See id. at 39. 151 Id. at 40. 152 Id. at 19. 153 Id. 154 Id. 155 Black carbon, commonly known as soot, is a particulate matter formed during incomplete combustion of fossil fuels, biofuels, and biomass and has recently been identified as a contributor to global warming. 156 LEE ET AL., supra note 105 (stating that aerosol PM2.5 is particulate matter 2.5 micron or less in diameter suspended in the surrounding air). 157 Id. at 22. 158 Id. 159 Id. at 22, 71 fig.29. 160 Id. at 22. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 391 alternative fates for woody biomass to determine which alternative results in the least amount of carbon emissions.161 System emissions are very similar for electricity generated from the combustion of woody biomass residues in integrated gasification and combustion (IGC) systems and cogenerators (systems that produce both heat and electricity).162 System emissions for the combustion of woody biomass residues by these processes are less than the system emissions from the combustion of biomass in slash piles but greater than the system emissions from decomposition of biomass that is not heaped into piles.163 Biochar production is the only method of energy production that results in system emissions that are less than system emissions from decomposition.164 This reflects the ability of biochar production to both generate electricity and sequester carbon in the leftover charcoal.165 Net emissions for electricity generated from the combustion of woody biomass residues are equal to the system emissions minus the displaced emissions. This study assumes the electricity generated from biomass displaces electricity generated from fossil fuels, specifically electricity from a combined-cycle natural gas turbine.166 The study researchers chose natural gas as the fuel replaced by biomass because any new electricity generation, biomass or other, would replace marginal electric generation sources (the last sources brought online to provide power during any time period), which in the Pacific Northwest are typically coal or natural gas-fired generating units.167 Electricity generated (using woody biomass residue) from biochar production, an IGC system, or a cogenerator has lower net emissions than woody biomass residue left to decompose.168 While an IGC system and a cogenerator release the same amount of GHG emissions for a given amount of wood burned, IGC systems are more efficient, producing more electricity per amount of wood, and thus displace more fossil fuel generated electricity.169 This results in IGC 161 See id. at 36 fig.13. 162 Id. at 33 fig.10. 163 Id. 164 Id. 165 See id. at tbl.1. 166 Id. at 71 (for cogenerator), 69 (for ICG), 56 (for biochar). 167 Id. at 56 (citing NW. POWER & CONSERVATION COUNCIL, MARGINAL CARBON DIOXIDE PRODUCTION RATES OF THE NORTHWEST POWER SYSTEM (2008)). 168 Id. at 36 fig.13. 169 See id. at 33 fig.10, fig.13. ZELLER-POWELL 1/10/2012 9:09 AM 392 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 systems having lower net emissions than cogenerators.170 However, both IGC systems and cogenerators have lower net emissions than biochar production because biochar production is a relatively inefficient way to produce electricity and displaces less fossil fuel generated electricity than either of the previous methods. Biochar production does still result in lower net emissions than decomposition, and biochar may be useful in some situations as a soil amendment. d. Study Summary: Morris Gregory Morris is the director of the Green Power Institute, the renewable energy program of the Pacific Institute.171 In 2008, Robert Cleaves, chairman of the USA Biomass Power Association,172 released a study conducted by Gregory Morris on behalf of the Pacific Institute: Bioenergy and Greenhouse Gases.173 The model developed by this study was included as an appendix to a state of California study and described as an independent consultant report regarding a landscape carbon model of the use of forest resources for bioenergy in California.174 The study of greenhouse gas implications of biomass energy production by Gregory Morris is based on the California biomass and biogas industries but purports to be applicable to biomass energy production throughout the United States and beyond.175 The model developed in this study is a “stock-and-flow” model176 and tracks, over a hundred-year period, the atmospheric concentrations of GHG emissions that would result from one year of biomass energy production at 2008 levels in California.177 Based on practices in 170 See id. 171 Green Power Institute, PACIFIC INSTITUTE, www.pacinst.org/topics/global_change /green_power_institute/index.htm (last visited Nov. 16, 2011). 172 Steering Committee, BIOMASS POWER ASSOCIATION, www.usabiomass.org/pages /about_steering.php (last visited Nov. 16, 2011). 173 Timothy Charles Holmseth, Pacific Institute Releases Study Results on GHG Emissions, BIOMASS POWER & THERMAL, (June 2, 2008), www.biomassmagazine .com/articles/1693/pacific-institute-releases-study-results-on-ghg-emissions/. 174 PAC. SW. RESEARCH STATION, USDA FOREST SERV., BIOMASS TO ENERGY: FOREST MANAGEMENT FOR WILDFIRE REDUCTION, ENERGY PRODUCTION, AND OTHER BENEFITS 124 (2010), available at http://www.energy.ca.gov/2009publications/CEC-500 -2009-080/CEC-500-2009-080.PDF. 175 MORRIS, supra note 2, at 1. 176 Id. at 18. 177 Id. at 14. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 393 California, biomass fuels are assumed to be a mix of wood processing, in-forest, agricultural, and urban wood residues; landfill gas; and animal manures.178 The alternative fates of these biomass residues would be open burning, forest accumulation, controlled or uncontrolled landfill burial, spreading, composting, or combustion in a kiln boiler or as firewood.179 Decomposition of residues on the forest floor after a timber harvest is not considered as an alternative fate.180 Emissions of gaseous carbon from biomass in landfills are taken to be more than fifty percent methane.181 First, the model inventories the amount of each type of biomass fuel used in California’s bioenergy industry over a one-year period and estimates the amount of biomass that would be disposed of via each alternative fate considered.182 Second, the model calculates the total carbon dioxide and methane emissions that would be released from each alternative fate.183 This analysis includes carbon emissions from fossil fuel used in producing and delivering each type of biomass fuel.184 Finally, the atmospheric concentrations of carbon dioxide and methane are calculated over a hundred-year period based on the natural decay and removal of these gases.185 The GHG emissions from electricity generated from fossil fuels that are avoided by using biomass energy (a fifty-fifty mix of coal and natural gas) are calculated and the decay and removal of these gases are included for comparison.186 The model also includes parameters relating to the alternative fate of forest accumulation (no harvesting or thinning) representing the relationship between increased storage of carbon in the forest, a lower growth rate due to crowding, and an increased risk of wildfire.187 The impacts of forest thinning operations on carbon storage and atmospheric levels of carbon are also modeled.188 178 Id. at 5. 179 Id. at 17. 180 Id. at 8. 181 Id. at 15. 182 Id. at 18. 183 Id. 184 Id. at 22. 185 Id. at 18. 186 Id. at 18, 24. 187 Id. at 18, 20, 24. 188 Id. at 24. ZELLER-POWELL 1/10/2012 9:09 AM 394 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 The results of this study are presented in two formats. First, the total atmospheric GHG burden of all California biomass energy production in 2005 and the resulting profile for the subsequent 100 years is presented.189 The GHG burdens resulting from biomass energy, alternative disposal methods, and avoided fossil fuels are compared, as well as the net biogenic carbon (emissions from biomass energy minus avoided emissions from the alternative disposal methods).190 These results show that, after ten years, by using 4.6 million bone dry tons191 (bdt) of biomass for biomass energy in 2005, biogenic GHG emissions were reduced by approximately four million tons of CO2 equivalents and an additional approximately 3.5 million tons of CO2 equivalents from fossil fuels were avoided.192 The results are also presented as the GHG burden associated with disposal of a given amount of biomass in a single year via the alternative fates considered by this study.193 Based on the natural decay and removal of these gases, all alternative fates considered— including burning in open slash piles, composting, or landfill disposal—create a higher greenhouse gas burden than the use of biomass for electricity.194 The net effect of thinning overgrown forests and using the residue for bioenergy results in a GHG burden that, 100 years later, is more than twice the burden of all other methods of disposal or use.195 However, by comparing the GHG burden of thinned forests with that of overgrown forests, Morris concludes that thinning forests results in a comparatively lower GHG burden.196 The model indicates that, if over-crowded forests are more prone to devastating wildfire and are assumed to have net-zero-growth, these forests are actually carbon sources.197 Thus, because thinning forests increases growth and reduces wildfire risk, the thinned forests result 189 Id. at 26. 190 Id. 191 A bone-dry ton is a unit used to describe the amount of dried biomass that weighs 2000 pounds when dry. 192 MORRIS, supra note 2, at 27. Total GHG emissions for California were approximately 500 million CO2-eq so this represents a reduction of approximately 1.5%. See CAL. ENERGY COMM’N, CALIFORNIA GREENHOUSE GAS EMISSIONS AND SINKS: 1990 TO 2004 i (2006). 193 MORRIS, supra note 2, at 28. 194 Id. at 28 fig.12. 195 Id. at 28, 31. 196 Id. at 32. 197 Id. at 32–33. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 395 in a lower GHG burden.198 Morris finds that increasing the amount of material removed during thinning reduces the GHG burden as opposed to a lighter thinning.199 Morris concludes that the use of woody biomass residues for bioenergy results in the lowest GHG burden for all alternative pathways considered. Using biomass residues for electricity instead of following the open burning or composting pathways results in an immediate reduction in GHG emissions. However, it may be that not all of his assumptions are supportable, in particular, the assumption of nongrowth in the thinning for wildfire risk reduction scenario.200 e. Summary of Life Cycle Analysis Studies These studies show that, in general, electricity generated from waste sources of woody biomass results in GHG emission reductions in a relatively short time frame, regardless of the type of fossil fuel system replaced. Using whole trees for electricity production may or may not reduce GHG emissions in the short term because the initial carbon debt is highly dependent on harvest practices and intensities. Additionally, the type of energy producing biomass technology and the type of fossil fuel energy plant being replaced have significant impacts on the magnitude of carbon debts from biomass energy.201 Biomass electricity produced in Massachusetts using whole trees and waste materials that replaces electricity generated from natural gas will not reduce GHG emissions within the next twenty to thirty years but may reduce GHG emissions relative to coal.202 This suggests that these types of biomass facilities do not reduce GHG emissions relative to natural gas facilities on the timescale required to combat climate change but may reduce GHG emissions relative to coal facilities. However, this analysis did not account for changes in soil carbon, likely resulting in under-estimates of the initial carbon debt. Unfortunately, these results cannot be directly applied to electricity generated from woody biomass grown in the Pacific Northwest. LCA studies of GHG emissions from electricity generated in the Pacific Northwest from different types of woody biomass, 198 Id. 199 Id. at 33. 200 See Van Tuyl et al., supra note 51, at 281 and accompanying text. 201 See MANOMET CTR. CONSERVATION SCI., supra note 31, at 105, 107, 112. 202 See id. at 112 exhibit 6-13. ZELLER-POWELL 1/10/2012 9:09 AM 396 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 including whole trees and waste only scenarios, that account for changes in soil carbon are needed. 2. Energy Crops In contrast to slow growing trees from forests primarily devoted to wood production, fast growing trees, such as poplar and willow trees, can be grown as bioenergy crops. It is widely accepted by scientists that carbon sequestered by the growing of energy crops should be subtracted from the overall GHG balance, thus cancelling out carbon emissions from combustion.203 As discussed previously, GHG emissions from construction and use of farm equipment, herbicides and fertilizers, transportation, and land use change (including changes in carbon stored in soils) must still be counted.204 The GHG balance for energy crops depends on the condition of the land before conversion to energy crops. When new energy crops are planted on land that was not storing carbon in the form of biomass or soil carbon, there is no decrease in the baseline carbon stores when energy crops are grown and then combusted.205 However, the baseline carbon stores vary significantly based on the previous state of the land, the type of crop grown, and the type of bioenergy produced.206 For cropland converted to short-rotation forestry (SRF) with a seven- year rotation period, there is little initial decrease in soil carbon and any loss is soon recovered.207 For permanent grasslands converted to seven-year SRF, a longer time period, five to ten years, is required to recover the initial carbon loss.208 When a forest is converted to SRF plantation, 45–170 years are required to offset the initial carbon loss depending on the forest’s initial carbon stocks.209 These changes in 203 See, e.g., id. at 95; Gregory A. Keoleian & Timothy A. Volk, Renewable Energy from Willow Biomass Crops: Life Cycle Energy, Environmental and Economic Performance, 24 CRITICAL REV. PLANT SCI. 385, 397 (2005). 204 See Keoleian & Volk, supra note 203, at 394; ZANCHI ET AL., supra note 3, at 29. 205 ZANCHI ET AL., supra note 3, at 29. 206 Id. 207 Id. at 30. 208 Id. Similar analyses of the carbon debt for conversion of grassland to cropland for corn ethanol show a payback period of between two to ninety-three years. Hyungtae Kim et al., Biofuels, Land Use Change, and Greenhouse Gas Emissions: Some Unexplored Variables, 43 ENVTL. SCI. & TECH. 961, 965 (2009); Fargione et al., supra note 92, at 1236 fig.1. The conversion of abandoned cropland to corn ethanol production has a shorter payback period of approximately forty-eight years while the conversion of abandoned and marginal cropland to prairie biomass ethanol production incurs very little or no carbon debt. 209 ZANCHI ET AL., supra note 3, at 30. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 397 land use must be accounted for in the carbon footprint of energy crops. Willow biomass has been fairly widely studied as a source of short- rotation woody biomass. One study of willow biomass, using a three- year crop rotation, accounted for GHG emissions from diesel fuel use, machinery manufacturing, fertilizer and herbicide manufacturing and transport, nursery operations, and nitrous oxide emissions from fertilizer and decomposing leaf litter.210 Emissions from land use change were not included.211 This study found that, for energy produced from the direct firing or gasification of willow biomass, GHG emissions were approximately 40–50 g CO2-eq/kW-h.212 Another study considered the use of poplar chips grown on a four- year short-rotation to produce heat and electricity.213 This study accounted for GHG emissions from machinery involved in plantation establishment, harvesting, drying, storage, and transportation.214 GHG emissions related to the manufacture and use of herbicides were included, but based on growing practices, it was assumed fertilizers were not used.215 GHG emissions from land use change were not included because sufficient methodologies and data were not available.216 Based on a combustion facility producing both heat and electricity, 4,124 MJ of power are produced using one tonne of poplar chips with twenty-five percent water content.217 GHG emissions are equal to 6.3E-03 kg CO2-eq/MJ electricity.218 This is equivalent to 22.68 g CO2-eq/kW-h and 25.98 kg CO2-eq/ton of green poplar chips. These results are similar to the results of other studies examined by the authors.219 Both of these studies show electricity from woody energy crops can have a lower rate of emissions than natural gas, which has life 210 Keoleian & Volk, supra note 203, at 396. 211 See id. 212 See id. at 402. 213 See generally Anne Roedl, Production and Energetic Utilization of Wood from Short Rotation Coppice—A Life Cycle Assessment, 15 INT’L J. L.C.A. 567 (2010). 214 Id. at 570 tbl.1. 215 Id. at 569. 216 Id. at 572–73. 217 Id. at 573. 218 Id. at 574. 219 Id. at 575. ZELLER-POWELL 1/10/2012 9:09 AM 398 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 cycle emissions of about 500 g CO2-eq/kW-h.220 This is because the carbon captured by the growing energy crops offsets the emissions from combustion for electricity generation. However, the failure to include land use change emissions makes these analyses somewhat incomplete and less useful. D. Conclusions Regarding Emissions from Woody Biomass Electricity Whether biomass electricity results in lower carbon emissions than fossil fuel-based electricity is a complicated matter that depends, in part, on the source of the biomass fuel, whether there is a change in land use, the rate of regrowth of vegetation, the time frame considered, and the method of accounting.221 Due to the life cycle differences between energy crops, biomass residues, and forests, these categories of biomass should be treated separately for regulatory purposes. The electricity generated from woody energy crops and woody biomass residues can result in lower GHG emissions than electricity generated from fossil fuels on a short-term time scale. However, electricity generated from whole trees not grown as energy crops generally has a higher GHG emission balance in the short term than fossil fuel electricity. Electricity generated from whole trees may result in reductions in GHG emissions relative to coal within a couple of decades but will not result in reductions relative to natural gas within that time period. Also, if changes in soil carbon are accounted for, biomass electricity generated using whole trees will not likely result in reductions relative to coal within the next couple of decades. Policy makers could choose to incentivize electricity generated from whole trees not grown as energy crops if it was decided that short-term increases in emissions with reductions in later years were desired. However, because scientists have recommended that we reduce GHG emissions in the next twenty to thirty years to avoid irreversible climate change,222 incentivizing a form of energy that increases carbon emissions during that period is contraindicated. 220 Id. at 576; Keoleian & Volk, supra note 201, at 398; Paulina Jaramillo et al., Comparative Life-Cycle Air Emissions of Coal, Domestic Natural Gas, LNG, and SNG for Electricity Generation, 41 ENVTL. SCI. & TECH. 6290, 6293 fig.1 (2007). 221 See also ZANCHI ET AL., supra note 3, at 5 (noting that whether biomass energy reduces GHG emissions depends on “the source of wood, the efficiency of conversion, the type of substituted fuel and the mix of final products”). 222 See, e.g., Searchinger et al., supra note 7, at 1239; Hansen et al., supra note 7, at 229; NAT’L ACAD SCI., supra note 8, at 2–3. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 399 Thus, incentives, such as state Renewable Portfolio Standards (RPS),223 should distinguish between woody energy crops, woody residues, and whole trees from forests. If states permit the use of whole trees not grown as energy crops, facilities should be required to demonstrate, using LCAs, that the use of such fuel will reduce GHG emissions in the next ten to twenty years. The following review finds that nearly all state RPS programs do allow the use of whole trees not grown as energy crops and do not require facilities to demonstrate GHG emissions reductions. IV LEGAL TREATMENT OF GHG EMISSIONS FROM BIOENERGY IN DEFINITIONS OF BIOMASS IN STATE RENEWABLE PORTFOLIO STANDARDS (RPS) For the last ten to fifteen years, international bioenergy policies have generally considered burning biomass a “climate friendly” form of energy generation.224 These policies have been based on the presumption that the CO2 emissions from burning biomass will be recaptured by growing trees on the harvested areas, lowering net CO2 emissions over time.225 However, researchers in the 1990s began modeling the impacts of burning biomass on greenhouse gas levels.226 Researchers and some international policy makers now recognize that it is not possible to generalize about the climate benefits of burning biomass.227 However, the presumption of biomass carbon neutrality remains widespread.228 There has been a recent move towards requiring the reporting of CO2 emissions from combustion of biomass. For example, the Intergovernmental Panel on Climate Change (IPCC) Guidelines for National Greenhouse Gas Inventories, California’s mandatory GHG reporting program, the Western Climate Initiative, and The Climate Registry all require the reporting of CO2 emissions from biomass 223 See discussion infra p. 399. 224 MANOMET CTR. CONSERVATION SCI., supra note 31, at 9. 225 Id. 226 Id. at 11; see, e.g., Bernhard Schlamadinger & Gregg Marland, The Role of Forest and Bioenergy Strategies in the Global Carbon Cycle, 10 BIOMASS & BIOENERGY 275 (1995). 227 MANOMET CTR. CONSERVATION SCI., supra note 31, at 11–12 (citing INT’L ENERGY AGENCY, BIOENERGY—A SUSTAINABLE AND RELIABLE ENERGY SOURCE (2009); Searchinger et al., supra note 4). 228 See MANOMET CTR. CONSERVATION SCI., supra note 31, at 11. ZELLER-POWELL 1/10/2012 9:09 AM 400 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 combustion from stationary sources.229 The final EPA rule, Mandatory Reporting of Greenhouse Gases,230 does not require electricity generators to count emissions from biomass combustion when determining whether the reporting threshold is met.231 If, however, a facility exceeds the threshold based on non-biogenic carbon emissions, the facility is required to separately report the biomass emissions.232 However, the “Tailoring Rule,”233 which governs which new stationary sources of GHG emissions will be required to obtain permits under the Clean Air Act, does not provide a blanket exemption for biomass facilities. In the EPA’s preamble to the rule, it responds to comments that biomass facilities should not be required to obtain such permits by noting that treatment of biomass combustion as carbon neutral may be valid, but the EPA does not take a final position.234 In July 2010, the EPA issued a call for information about GHG emissions from biomass energy and how these emissions should be treated.235 In July 2011, in response to a petition from the National Alliance of Forest Owners, the EPA promulgated a rule exempting biomass facilities from prevention of significant deterioration and Title V operating permit requirements for three years.236 The treatment of GHG emissions from biomass facilities is not settled and is evolving. 229 Id. at 14. 230 40 C.F.R. § 98 (2010). 231 MANOMET CTR. CONSERVATION SCI., supra note 31, at 14. 232 Id. 233 Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 40 C.F.R. §§ 51, 52, 70 & 71 (2010). 234 See 75 Fed Reg. 31, 514, 31,590 (June 3, 2010) (to be codified at 40 C.F.R. §§ 51, 52, 70 & 71 (2010). 235 Call for Information: Information on Greenhouse Gas Emissions Associated with Bioenergy and Other Biogenic Sources, 75 Fed. Reg. 41,173 (July 15, 2010). 236 Deferral for CO2 Emissions From Bioenergy and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and Title V Programs, 76 Fed. Reg. 43,490 (July 20, 2011). EPA stated the reason for this three year exemption was to “give EPA time to effectuate a detailed examination of the science associated with biogenic CO2 [sic] emissions and to consider the technical issues that the agency must resolve in order to account for biogenic CO2 [sic] emissions in ways that are scientifically sound and also manageable in practice.” Letter from Lisa Jackson, EPA Adm’r, to Sen. Debbie Stabenow 2 (Jan. 11, 2011), available at www.epa.gov/nsr/ghgdocs/StabenowBiomass.pdf. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 401 A. Definitions of Eligible Biomass in State RPS Programs Renewables Portfolio Standards (RPS) are energy policies adopted by states to promote renewable energy by requiring retail sellers of electricity to procure a certain amount of electricity from renewable energy resources.237 As of November 2011, thirty-seven states have enacted some form of RPS.238 While each of these states consider electricity generated from biomass to be a source of renewable energy for purposes of their RPS programs, each state defines eligible sources of biomass differently. The following is a survey and policy analysis of definitions of eligible biomass in state RPS programs with a particular focus on eligible woody biomass. The effectiveness of these definitions to incentivize woody biomass that will reduce GHG emissions will be analyzed and policy recommendations given in a following section of this paper. Briefly, nearly every state’s RPS definition of eligible woody biomass fails to address GHG emissions from biomass and allows the use of whole trees not grown as energy crops without requiring that facilities demonstrate GHG emissions reductions. Because LCAs of GHG balances for different types of woody biomass indicate that the use of whole trees not grown as energy crops is unlikely to create emissions reductions in the next several decades, RPS programs should not consider this type of fuel to be eligible biomass. State RPS programs could include provisions that would allow facilities to use whole trees not grown as energy crops if the facilities could demonstrate, using LCAs, that the use of this fuel results in GHG emission reductions. Terminology varies from state to state and, for purposes of clarity, I will use the following terms. “Renewables portfolio standard” or “RPS” will be used generically to refer to states’ energy policies described above. “Eligible biomass” will be used to describe the types 237 NANCY RADER & SCOTT HEMPLING, THE RENEWABLES PORTFOLIO STANDARD: A PRACTICAL GUIDE 1–2 (2001); see generally Ivan Gold & Nidhi Thakar, A Survey of State Renewable Portfolio Standards: Square Pegs for Round Climate Change Holes? 35 WM. & MARY ENVTL. L. & POL’Y REV. 183 (2010) (provides overview of how RPS programs work and considers whether they are effective in reducing greenhouse gas emissions). 238 Rules, Regulations & Policies for Renewable Energy, DATABASE OF STATE INCENTIVES FOR RENEWABLES & EFFICIENCY, http://www.dsireusa.org/summarytables /rrpre.cfm (last visited Nov. 16, 2011). The thirty-seven states are Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin. ZELLER-POWELL 1/10/2012 9:09 AM 402 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 of biomass that a state considers to be a source of renewable energy. “Tier I,” “Class I,” and “Main Tier” are used in RPS programs to describe types of renewable energy that are more strongly incentivized. “Tier II” or “Class II” energy is less strongly incentivized. The terms “Tier” and “Class” will be used as appropriate for each state’s statute. B. Summaries of Individual States’ Definitions of Eligible Biomass States are grouped by whether or not whole trees are considered eligible biomass and whether or not the RPS programs are mandatory or not. Rather than enforceable standards, seven states have RPS goals, which are voluntary and serve simply to generally encourage the use of renewable energy. 1. States with Mandatory RPS Programs That Consider Whole Trees to Be Eligible Biomass a. Arizona In Arizona, biomass and biogas electricity generators are considered eligible renewable energy resources under the state’s Renewable Energy Standard.239 Eligible biomass fuel is generally described as “any raw or processed plant-derived organic matter available on a renewable basis.”240 This general description is followed by a list of examples of specific types of eligible materials including: dedicated energy crops and trees; . . . wood wastes and residues, including landscape waste, right-of-way tree trimmings, or small diameter forest thinnings that are 12” in diameter or less; dead and downed forest products; . . . forest-related resources, such as harvesting and mill residue, pre-commercial thinnings, slash, and brush.241 The only woody biomass specified as ineligible is “painted, treated, or pressurized wood, wood contaminated with plastics or metals, . . . or recyclable post-consumer waste paper.”242 The fuel that may be used in eligible biogas generators is described as gases derived using 239 ARIZ. ADMIN. CODE § R14-2-1802(A)(1)–(2) (2010). 240 Id. § R14-2-1802(A)(2). 241 Id. 242 Id. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 403 anaerobic digestion from a list of biomass materials including “wood wastes.”243 b. California The California Renewables Portfolio Standard statute does not place any limits on the types of biomass materials that may be used to produce eligible electricity.244 However, a biomass energy facility is only considered an eligible “in-state renewable electricity generation facility” under the state RPS if the facility reports to the commission administering the RPS “the types and quantities of biomass fuels used.”245 The commission submits annual reports to the Legislature regarding “the types and quantities of biomass fuels used by facilities receiving funds” under the RPS and “their impacts on improving air quality.”246 The California Energy Commission has the authority to adopt guidelines to administer funding programs under the RPS.247 Under the Renewable Energy Program Guidelines issued by the California Energy Commission, electricity from a biomass facility is eligible under the RPS if the biomass fuel falls under the definition of biomass in the Overall Program Guidebook.248 This guidebook broadly defines eligible biomass as “any organic material not derived from fossil fuels” and specifically includes “construction wood wastes, landscape and right-of-way tree trimmings, mill residues that result from milling lumber, . . . and wood and wood waste from timbering operations.”249 Landscape and right-of-way tree trimmings are further defined to include tree removal for the purpose of establishing or maintaining right-of-ways for “the provision of public utilities,” “fuel hazard reduction,” and “the public’s recreational use.”250 243 Id. § R14-2-1802(A)(1). 244 See CAL. PUB. RES. CODE § 25742(d) (2010). 245 Id. § 25742(d)(1). 246 Id. § 25748(a)(4). 247 Id. § 25747(a). 248 CAL. ENERGY COMM’N, RENEWABLES PORTFOLIO STANDARD ELIGIBILITY 21 (4th ed. 2011). 249 CAL. ENERGY COMM’N, RENEWABLE ENERGY PROGRAM OVERALL PROGRAM GUIDEBOOK 19 (3d ed. 2011). 250 Id. at 20. ZELLER-POWELL 1/10/2012 9:09 AM 404 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 c. Colorado Under Colorado’s Renewable Energy Standard, biomass electricity is eligible for the RPS.251 The statute generally describes eligible woody biomass as “[n]ontoxic plant matter” consisting of “urban wood waste, mill residue, slash, or brush.”252 Colorado regulations further explain the definitions of slash and brush to mean “products and materials derived from forest restoration and management, including, but not limited to, harvesting residues, precommercial thinnings, and materials removed as part of a federally recognized timber sale or removed to reduce hazardous fuels, to reduce or contain disease or insect infestation, or to restore ecosystem health.”253 d. Connecticut The definition of eligible biomass in Connecticut’s Renewables Portfolio Standard focuses on emissions. Eligible “renewable energy” includes electricity produced from “low emission advanced biomass conversion technologies” and other fuels derived from agricultural produce that the state determines “provide net reductions in greenhouse gas emissions and fossil fuel consumption.”254 Biomass facilities are only eligible for “Class I” status if the emissions of nitrogen oxides are below a certain amount and sustainable biomass fuel is used or the facility is an older and smaller facility that uses sustainable biomass fuel.255 Sustainable biomass is generally defined as “biomass that is cultivated and harvested in a sustainable manner.”256 More specifically, sustainable biomass does not include construction and demolition waste, finished biomass products from lumber or paper mills, or biomass from old-growth timber stands, although there are some exceptions to these limitations for older facilities.257 Biomass facilities qualify for “Class II” status if nitrogen oxide emissions are below a certain level, regardless of the type of biomass fuel used.258 251 See COLO. REV. STAT. § 40-2-124(1)(a) (2010). 252 Id. § 40-2-124(1)(a)(I). 253 4 COLO. CODE REGS. § 723-3-3652(b) (2010). 254 CONN. GEN. STAT. ANN. § 16-245n(a) (2011). 255 Id. § 16-1(a)(26)(A). 256 Id. § 16-1(a)(45). 257 Id. 258 Id. § 16-1(a)(27). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 405 e. Delaware The Delaware Department of Natural Resources and Environmental Conservation (DNREC) is responsible for determining the types of eligible biomass that may be used in combustion facilities under the state’s Renewable Energy Portfolio Standards.259 DNREC has promulgated regulations specific to electricity generated from the combustion of biomass.260 These regulations require energy crops and agricultural residues used as fuel in combustion facilities to meet the standards of the U.S. Department of Agriculture’s National Organic Program or follow a list of management practices that minimize herbicide and pesticide use and promote soil and water conservation.261 In order to be eligible under Delaware’s RPS, woody biomass combusted to produce electricity must be grown and harvested under a conservation and management plan that, among other things, addresses the protection of soil and water resources, incorporates sustainable rates of harvest, limits the use of pesticides and herbicides, avoids forest conversion to plantations or nonforestland uses, and excludes material from trees more than 150 years old.262 The statute states no limits on the types of organic materials that can be used to produce biogas via anaerobic digestion.263 f. Hawaii Under Hawaii’s Renewable Portfolio Standards, electricity generated from biomass is an eligible source of renewable energy with no restrictions on the type of fuel or process used.264 Biomass crops, agricultural and animal residues and wastes, municipal solid waste, and other solid waste are specifically considered eligible.265 Timber or other forestry products are not mentioned. g. Iowa Iowa was the first state to create a renewables portfolio standard program when it passed the Alternative Energy Production Law in 259 See DEL. CODE tit. 26, § 352(6)(h) (2011). 260 7-100-106 DEL. ADMIN. CODE § 1.0 et seq. (2010). 261 Id. § 5.2. 262 Id. § 5.3. 263 DEL. CODE tit. 26, § 352(6)(f). 264 HAW. REV. STAT. § 269-91(2)(B)(7) (2010). 265 Id. ZELLER-POWELL 1/10/2012 9:09 AM 406 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 1983.266 While the term “biomass” is not used, types of eligible biomass specifically mentioned include “refuse-derived fuel” and “agricultural crops or residues.”267 Wood-burning facilities are also considered eligible sources of renewable energy.268 Eligible woody biomass fuels are not defined or discussed, so, since “wood-burning facilities” without limitation are considered eligible, presumably all forms of woody biomass may be considered eligible.269 h. Kansas Under Kansas’s Renewable Energy Standards Act, only certain types of biomass are considered eligible sources of energy. Energy crops, cellulosic agricultural residues, plant residues, and “clean and untreated wood products such as pallets” are the only types of biomass specifically mentioned as eligible.270 Other sources of energy can be eligible under the RPS if certified as renewable by the commission administering the statute.271 i. Maine Maine’s Renewables Portfolio Standard defines eligible renewable energy sources to include biomass facilities fueled by wood or wood waste and biogas from the anaerobic digestion of agricultural products, by-products, or wastes.272 In regulations promulgated in 2007, Class I and Class II renewable energy resources are both defined to include “biomass generators,” but specific types of biomass are not mentioned.273 j. Maryland In Maryland, eligible or “qualifying” biomass is a Tier I energy source274 and is defined in detail in the state’s Renewable Energy 266 Ryan Wiser & Galen Barbose, Lawrence Berkeley Nat’l Lab., Renewable Portfolio Standards in the United States, 4 fig.2 (2008), available at http://eetd.lbl.gov/ea/ems /reports/lbnl-154e-revised.pdf. 267 IOWA CODE § 476.42(1)(a)(1) (2010). 268 See id. 269 See id. 270 KAN. STAT. § 66-1257(f) (2009). 271 Id. § 66-1257(f)(11). 272 ME. REV. STAT. tit. 35-A, § 3210(2)(B-3)(1)(f), (C)(2)(g) (2010). 273 See 65-407-311 ME. CODE R. §§ 3(B)(1)(g), 4(B)(1)(b)(vii) (2010). 274 MD. CODE ANN., PUB. UTIL. § 7-701(l)(3) (West 2010). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 407 Portfolio Standard.275 Qualifying biomass is generally defined as “nonhazardous, organic material” available on a “renewable or recurring basis.”276 Sources of woody biomass that are explicitly permitted include mill residue, precommercial soft wood thinning, slash, brush and yard waste,277 pallets,278 silvicultural sources,279 and energy crops.280 Qualifying biomass does not include sawdust and wood shavings,281 “unsegregated solid waste or postconsumer wastepaper,” or “invasive exotic plant species.”282 Old-growth timber is also specifically excluded from qualifying biomass.283 The RPS includes a detailed definition of “old-growth timber” that specifies that old-growth timber is timber from a forest “at least 5 acres in size with a preponderance of old trees, of which the oldest exceed at least half the projected maximum attainable age for the species.”284 To be an old-growth forest, the forest must also exhibit several additional characteristics described in the statute.285 k. Michigan In Michigan, biomass is an eligible source of renewable energy under the state’s Clean, Renewable and Efficient Energy Act.286 Biomass is generally defined as “any organic matter that is not derived from fossil fuels . . . and that replenishes over a human, not a geological, time frame.”287 Types of woody biomass specifically allowed include trees and wood from sustainably managed forests or procurement systems, precommercial wood thinning waste, brush, yard waste, and wood wastes and residues from the processing of wood products or paper.288 However, eligible biomass is not limited to 275 Id. § 7-701(h). 276 Id. § 7-701(h)(1). 277 Id. § 7-701(h)(1)(i)(1)(A)–(E). 278 Id. § 7-701(h)(1)(i)(2). 279 Id. § 7-701(h)(1)(i)(3). 280 M.D. CODE ANN., PUB. UTIL. § 7-701(h)(1)(ii) (West 2010). 281 Id. § 7-701(h)(1)(i)(1)(A). 282 Id. § 7-701(h)(3)(i)–(ii). 283 Id. § 7-701(h)(1)(i)(1). 284 Id. § 7-701(e)(1). 285 Id. § 7-701(e)(2). 286 MICH. COMP. LAWS § 460.1011(i)(i) (2011). 287 Id. § 460.1003(f). 288 Id. § 460.1003(f)(iv)–(vii). ZELLER-POWELL 1/10/2012 9:09 AM 408 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 only these types of biomass, and there are no types of biomass specifically excluded.289 l. Minnesota Biomass is considered an eligible renewable energy source in Minnesota’s Renewable Energy Objectives.290 However, the description of eligible biomass is unusual because it does not mention any types of woody biomass.291 Instead, biomass is described as including, “without limitation,” landfill gas, anaerobic digester systems, wastewater sludge that is not incinerated, and mixed municipal solid waste.292 m. Missouri The definition of “renewable energy resource” under Missouri’s Renewable Energy Standard (RES) is basically identical to Kansas’s RPS.293 The term “biomass” is not used; instead, a list is given of individual types of biomass that are eligible renewable energy resources.294 Dedicated energy crops, agricultural and plant residues, and clean, untreated wood “such as pallets” are specifically listed as eligible fuel sources.295 Additionally, pyrolysis, a method for converting biomass to energy, is listed as an eligible source of energy if waste material is used as the fuel.296 Finally, the department administering the RES may certify other sources as qualifying as renewable energy.297 In regulations adopted August 16, 2010, the Missouri Public Service Commission defined renewable energy resources using the same definition used in the RES statute, and thus did not change the types of eligible biomass.298 289 See id. (“including, but not limited to, all of the following” types of biomass). 290 MINN. STAT. § 216B.1691(1)(a)(5) (2011). 291 See id. 292 Id. 293 Compare MO. REV. STAT. § 393.1025(5) (2010), and, KAN. STAT. ANN § 66- 1257(f) (2010). 294 MO. REV. STAT. § 393.1025(5). 295 Id. 296 Id. 297 Id. 298 MO. CODE REGS. ANN. tit. 4, § 240-20.100(1)(K) (2010). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 409 n. Montana Under Montana’s Renewable Resource Standard, “low-emission, nontoxic biomass” is an eligible source of renewable energy if specific types of fuel are used.299 Eligible types of woody biomass are limited to dedicated energy crops and solid organic fuels from “wood, forest, or field residues.”300 Wood treated with chemical preservatives is specifically mentioned as ineligible.301 o. Nevada The definition of eligible biomass under Nevada’s Energy Portfolio Standard is very broad and contains no limits other than that the material be “organic matter. . . available on a renewable basis.”302 Specific types of eligible biomass are listed as including, “without limitation,” wood and wood wastes.303 Regulations promulgated by the Nevada Public Utilities Commission adopt the statutory definition of biomass304 and further state that biomass includes, “without limitation,” “[a]ny product made from agricultural crops or residues, including, without limitation, cooking oils.”305 p. New Hampshire New Hampshire’s Electric Renewable Portfolio Standard has a relatively well-developed statutory scheme related to biomass. “Eligible biomass technologies” are considered a Class I source of renewable energy.306 Eligible biomass technologies are those that use certain types of biomass fuel and meet emissions limits for nitrogen oxide and particulates.307 Eligible biomass fuels include “clean and untreated wood such as brush, stumps, lumber ends and trimmings, wood pallets, bark, wood chips or pellets, shavings, sawdust and slash,” and energy crops, but no construction or demolition debris.308 Regulations simply adopt the statutory definition of eligible biomass 299 MONT. CODE ANN. § 69-3-2003(10)(g) (2011). 300 Id. 301 Id. 302 NEV. REV. STAT. § 704.007 (2010). 303 Id. § 704.007(2). 304 NEV. ADMIN. CODE § 704.8835(1) (2002). 305 Id. § 704.8835(2)(b). 306 N.H. REV. STAT. ANN. § 362-F:4(I) (2011). 307 Id. § 362-F:2(VIII)(a). 308 Id. § 362-F:2(II). ZELLER-POWELL 1/10/2012 9:09 AM 410 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 fuels.309 The RPS statute also includes provisions for how to verify and report emissions from biomass sources.310 Regulations describe the process for becoming a certified biomass facility after demonstrating sufficient emission levels.311 q. New Mexico New Mexico’s Renewables Portfolio Standard considers biomass resources to be a source of renewable energy.312 Types of woody biomass that are specifically considered eligible include “small diameter timber, salt cedar and other phreatophyte313 or woody vegetation removed from river basins or watersheds in New Mexico.”314 Salt cedar is a major invasive species in the southwestern United States.315 Regulations simply duplicate the statute’s definition of eligible biomass resources.316 r. New York Electricity generated from biomass is eligible under New York’s Renewable Portfolio Standard as Main Tier energy if it is generated via direct combustion, in a combined heat and power facility or in a co-firing plant.317 The eligible types of biomass are listed by category and described in detail.318 The categories that include woody biomass are agricultural residue, harvested wood, mill residue wood, pallet waste, refuse derived fuel, site conversion waste wood, silvicultural waste wood, energy crops, and urban wood and related waste.319 309 N.H. CODE ADMIN. R. PUC 2502.04 (2010). 310 N.H. REV. STAT. ANN. § 362-F:12 (2011). 311 N.H. CODE ADMIN. R. PUC 2502.16. 312 N.M. STAT. ANN. § 62-16-3(E)(2)(d) (2007). 313 A phreatophyte is a type of deep-rooted plant that relies on groundwater for moisture. Salt cedar is a type of phreatophyte. North American Desert, ENCYCLOPEDIA BRITANNICA ONLINE, http://www.britannica.com/EBchecked/topic/418771/North -American-Desert (last visited Nov. 28, 2011) (on file with author). 314 N.M. STAT. ANN. § 62-16-3(E)(2)(d). 315 Salt Cedar, PLANT CONSERVATION ALLIANCE (last updated Apr. 10, 2010), http://www.nps.gov/plants/alien/fact/tama1.htm. 316 N.M. CODE R. § 17.9.572.7(D) (2007). 317 N.Y. PUB. SERV. COMM’N, ORDER APPROVING IMPLEMENTATION PLAN, ADOPTING CLARIFICATIONS, AND MODIFYING ENVIRONMENTAL DISCLOSURE PROGRAM, amended app. B at 1 (Apr. 14, 2005). See also ANTARES GROUP, INC., N.Y. STATE ENERGY RESEARCH & DEV. AUTH., NEW YORK STATE RENEWABLE PORTFOLIO STANDARD: BIOMASS GUIDEBOOK (2006). 318 N.Y. PUB. SERV. COMM’N, supra note 317, amended app. B at 4. 319 Id. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 411 New York’s harvested wood category includes wood harvested commercially.320 Biomass facility owners must comply with a Forest Management Plan that promotes forest ecosystem health and the conservation of biological diversity and productive forest capacity.321 Suppliers of biomass fuel must comply with Forest Management Plans of biomass facilities and their own harvest plans, and professional foresters must monitor harvests.322 The same requirements apply to the category of silvicultural waste wood.323 The mill residue wood category includes all clean wood waste from sawmills, millworks, and the secondary wood products industries.324 The categories of pallet waste, refuse derived fuel, and urban wood and related waste must be composed of clean wood.325 Site conversion waste wood includes wood harvested during the clearing of forestland for development purposes.326 s. North Carolina Biomass is considered a renewable energy resource under North Carolina’s Renewable Energy and Energy Efficiency Portfolio Standard.327 The specific types of woody biomass mentioned in the statute are broad categories of materials and include wood waste, energy crops, and combustible residues.328 Biomass facilities are required to use Best Available Control Technology (BACT) to reduce air emissions.329 The North Carolina Utilities Commission decided in October 2010 that whole trees constitute eligible biomass under the state RPS.330 The Commission found that the statutory language “biomass resource, including” followed by a list of types of biomass, was a list of examples of eligible biomass rather than an exhaustive or 320 Id. 321 Id. 322 Id. 323 N.Y. PUB. SERV. COMM’N, supra note 317, at amended app. B at 4. 324 Id. 325 Id. 326 Id. 327 N.C. GEN. STAT. § 62-133.8(a)(8) (2010). 328 Id. 329 Id. § 62-133.8(g). 330 Order Accepting Registration of Renewable Energy Facility at 5, In the Matter of Application of Duke Energy Carolinas, L.L.C., For Registration of Buck Steam Station, Unites 5 and 6, as New Renewable Energy Facilities, No. E-7, Sub. 939, 940 (N.C. Util. Comm’n. Oct. 11, 2010). ZELLER-POWELL 1/10/2012 9:09 AM 412 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 exclusive list.331 The North Carolina Court of Appeals upheld the Commission’s decision.332 t. Ohio Ohio’s Alternative Energy Resource Standard considers biomass energy as an eligible form of renewable energy.333 Specifically, energy derived from bark, wood chips, and sawdust as nontreated by- products of the pulping and wood manufacturing processes are considered eligible, but eligible biomass is not limited to this list of materials.334 Regulations further explain that “biomass energy” is a very broad term that includes, but is not limited to, energy crops and their residues, wood and paper manufacturing waste, forestry waste, and other vegetation waste.335 u. Oregon Electricity generated from biomass is considered a form of renewable energy under Oregon’s Renewable Portfolio Standard.336 Electricity from biomass is considered eligible renewable electricity if it is not generated by burning wood treated with chemical preservatives or municipal solid waste.337 However, as an emergency measure to preserve “the public peace, health and safety,” Oregon’s legislature passed legislation allowing municipal solid waste to be considered qualifying biomass from March 4 to December 31, 2010.338 Types of woody biomass that are eligible include, but are not limited to, “[f]orest or rangeland woody debris from harvesting or thinning conducted to improve forest or rangeland ecological health and to reduce uncharacteristic stand replacing wildfire risk” and “[w]ood material from hardwood timber” grown for the paper manufacturing industry and other woody energy crops.339 331 Id. at 4. 332 Duke Energy Carolinas v. Envtl. Def. Fund, No. COA11-142 (N.C. Ct. App. filed Aug. 2, 2011). 333 OHIO REV. CODE ANN. § 4928.01(A)(35) (West 2010). 334 Id. 335 OHIO ADMIN. CODE 4901:1-40-01(E) (2009). 336 OR. REV. STAT. § 469A.025(2) (2007). 337 Id. §§ (2)–(3). 338 See Act of March 4, 2010, ch. 17, § 3, 2010 Or. Laws; Act of March 18, 2010, ch. 71, §§ 2–3, 2010 Or. Laws. 339 OR. REV. STAT. §§ 469A.025(2)(c)–(e). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 413 v. Rhode Island Electricity produced using eligible biomass fuel is considered a renewable energy resource under Rhode Island’s Renewable Energy Standard.340 Eligible biomass fuel includes various forms of woody biomass, specifically “brush, stumps, lumber ends and trimmings, wood pallets, bark, wood chips, shavings, slash and other clean wood that is not mixed with other solid wastes,” and energy crops.341 Regulations further clarify that eligible biomass fuel includes “yard trimmings, site clearing waste, [and] wood packaging.”342 Certification is required for energy to be considered eligible renewable energy, and biomass facilities must have an approved biomass fuel source plan to receive certification.343 The biomass fuel source plan is designed to demonstrate that the biomass fuel used is eligible biomass fuel.344 w. Texas Biomass and biomass-based waste products are considered sources of renewable energy under Texas’s Renewable Generation Requirement.345 Renewable energy is generally described as “an energy source that is naturally regenerated over a short time” and derived directly or indirectly from the sun, moving water, or “other natural movements and mechanisms of the environment.”346 Biomass is not defined in any more detail in the statute or regulations.347 x. Utah Utah’s Energy Resource Procurement Act created a program like a renewable portfolio standard, except that an electrical utility is not required to purchase renewable energy if it believes doing so is not cost effective.348 For this reason, Utah’s program is more like a renewable portfolio goal than a standard. Utah’s definition of eligible woody biomass uses wording similar to Oregon’s definition. In Utah, eligible woody biomass includes “forest or rangeland woody debris 340 R.I. GEN. LAWS § 39-26-5(a)(6) (2010). 341 Id. § 39-26-2(6). 342 90-060-015 R.I. CODE R. § 3.7 (LexisNexis 2007). 343 Id. § 6.1(i). 344 See id. § 6.9. 345 TEX. UTIL. CODE § 39.904(d) (2007). 346 Id. 347 See TEX. P.U.C. SUBST. R. 25.173(c)(17) (2010). 348 UTAH CODE § 54-17-502(7) (West 2008). ZELLER-POWELL 1/10/2012 9:09 AM 414 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 from harvesting or thinning conducted to improve forest or rangeland ecological health and to reduce wildfire risk,” organic and agricultural waste, and dedicated energy crops, but excludes wood treated with chemical preservatives.349 y. Washington Washington’s Renewable Energy Standard considers most biomass fuels to be eligible sources of renewable energy.350 Eligible biomass is broadly defined to include “solid organic fuels from wood, forest, or field residues, or dedicated energy crops.”351 However, certain types of biomass that are not eligible include chemically treated wood, black liquor from paper production, wood from old-growth forests, and municipal solid waste.352 Regulations simply repeat this definition of eligible biomass.353 z. Wisconsin Wisconsin’s Renewable Portfolio Standard includes biomass as a source of renewable energy.354 Eligible biomass is defined as including fuel derived from “wood or plant material or residue, biological waste, [or] crops grown for use as a resource.”355 There are no types of woody biomass that are specifically excluded. 2. States with Voluntary RPS Programs That Consider Whole Trees to Be Eligible Biomass a. Indiana Indiana’s Voluntary Clean Energy Portfolio Standard Program, enacted in May 2011, allows the use of “organic waste biomass” as a “clean energy resource.”356 Organic waste biomass includes, but is not limited to, “[w]ood and wood wastes, including . . . [w]ood residues . . . [f]orest thinnings . . . [and] [m]ill residue wood.”357 Treated or painted lumber is excluded from the definition of clean energy 349 Id. § 54-17-601(1)(b)(iv)(B). 350 WASH. REV. CODE § 19.285.030 (18)(i) (2009). 351 Id. 352 Id. 353 See WASH. ADMIN. CODE § 194-37-040(25) (2010); WASH. ADMIN. CODE § 480- 109-007(18) (2010). 354 WIS. STAT. § 196.378(1)(h)(1)(g) (2010). 355 Id. § 196.378(1)(ar). 356 IND. CODE § 8-1-37-4(a)(5) (2011). 357 Id. § 8-1-37-4(a)(5)(C). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 415 resource, as well as energy generated from burning landscape waste.358 Financial incentives are available to electricity suppliers who meet the RPS goals for supplying clean energy to consumers.359 However, electricity suppliers are not required to obtain clean energy to meet the RPS goals if the administering commission determines the cost of doing so “would not be just and reasonable.”360 b. North Dakota Under North Dakota’s Renewable and Recycled Energy Objective, biomass qualifies as an eligible source of renewable energy.361 There are no restrictions on the types of woody biomass that are eligible because agricultural crops, wastes and residues (which would include energy crops) and wood, wood wastes and residues are all listed as eligible sources of biomass.362 North Dakota’s RPS is voluntary and there are no sanctions for failure to meet the objective.363 c. Oklahoma Oklahoma’s Renewable Energy Goal, passed in May 2010, permits the use of biomass as an eligible renewable energy resource.364 Types of woody biomass specifically mentioned include the broad categories of agricultural crops and their residues, wood, and degradable organic wastes.365 As a goal, this standard is not enforceable. d. South Dakota South Dakota’s Renewable, Recycled and Conserved Energy Objective allows the use of biomass as an eligible renewable energy source.366 Types of woody biomass that are specifically mentioned as eligible include “wood and wood wastes and residues” and agricultural crops, which presumably includes all energy crops.367 358 Id. § 8-1-37-4(b)(2)(c). 359 Id. § 8-1-37-12(a). 360 Id. § 8-1-37-12(d). 361 N.D. CENT. CODE § 49-02-25(4) (2009). 362 Id. 363 Id. § 49-02-28. 364 OKLA. STAT. tit. 17, § 801.4(D)(7) (2011). 365 Id. 366 S.D. CODIFIED LAWS § 49-34A-94(5) (2008). 367 Id. ZELLER-POWELL 1/10/2012 9:09 AM 416 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 South Dakota’s RPS is voluntary and there are no sanctions for failure to meet the objective.368 e. Vermont Vermont does not have a binding renewable portfolio standard; instead, it has a voluntary program called the Sustainably Priced Energy Enterprise Development (SPEED) program. The SPEED program identifies certain amounts of renewable energy that utilities are to provide, but if utilities do not meet these levels, the SPEED program will be replaced by a binding RPS program.369 Biomass is considered a source of renewable energy but is not defined in any detail.370 However, there is a requirement that woody biomass resources have a design system efficiency of at least fifty percent in order to receive the statutory price for electricity generated by the facility.371 f. Virginia Biomass is considered a source of renewable energy under Virginia’s Voluntary Renewable Energy Portfolio Goal.372 Virginia limits the total amount of certain types of woody biomass that can be used toward meeting its RPS goal unless these types of wood were used as fuel prior to 2007.373 The types of woody biomass whose use is limited include “green wood chips, bark, sawdust, a tree or any portion of a tree which is used or can be used for lumber and pulp manufacturing by facilities located in Virginia.”374 One objective of this limitation is to prevent the RPS goal from incentivizing the combustion of wood to generate energy when that wood could be used for other purposes. No limits are placed on the use of certain other types of “sustainable biomass and biomass based waste to energy resources.”375 These other types of woody biomass include “mill residue, except wood chips, sawdust and bark; pre-commercial 368 Id. § 49-34A-101. 369 VT. STAT. ANN. tit. 30, § 8005(d)(1) (2010). 370 30-000-054 VT. CODE R. § 4.304(B)(1) (2010). 371 VT. STAT. ANN. tit. 30 § 8005(j). 372 VA. CODE ANN. § 56-585.2(A) (2010) (referring to the definition of renewable energy found in VA. CODE ANN. § 56-576 (2010)). 373 Id. § 56-585.2(F). 374 Id. 375 Id. The definition of “biomass, sustainable or otherwise” is to be construed liberally. Id. § 56-576 (definition of “renewable energy”). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 417 soft wood thinning; slash; logging and construction debris; brush; yard waste; shipping crates; dunnage; non-merchantable waste paper; landscape or right-of-way tree trimmings; [and] agricultural and vineyard materials.”376 g. West Virginia Under West Virginia’s Alternative and Renewable Energy Portfolio Standard, it is possible for an electric utility to meet the RPS requirements by purchasing only “alternative” energy, which includes coal and natural gas-based energy, and no “renewable” energy.377 Biomass energy is considered a renewable energy source and is broadly defined as “nonhazardous organic material” available on a recurring basis.378 Pulp mill sludge is the only biomass material specifically mentioned, but nothing in the statute suggests other biomass materials are not eligible.379 3. States with Mandatory RPS Programs That Do Not Consider Whole Trees to Be Eligible Biomass a. Illinois In Illinois, “crops and untreated and unadulterated organic waste biomass” and “tree waste” are considered eligible biomass under the state’s Renewable Portfolio Standard.380 In 2009, the Illinois legislature modified the definition of “renewable energy resources.” Where “trees and tree trimmings” had originally been considered renewable energy resources, only “tree waste” is now considered a renewable energy resource.381 The RPS specifically excludes energy generated by the incineration of certain types of biomass, including “landscape waste other than tree waste” and woody biomass materials other than “untreated and unadulterated waste wood.”382 376 Id. § 56-585.2(F). 377 See W. VA. CODE § 24-2F-3, 5 (2009). 378 Id. § 24-2F-3(13)(F). 379 Id. 380 20 ILL. COMP. STAT. 3855/1-10 (2010) (definition of “renewable energy resources”). 381 See S.B. 2150, 96th Gen. Assem., Reg. Sess. (Ill. 2009), available at http://www .ilga.gov/legislation/publicacts/96/096-0159.htm. 382 20 ILL. COMP. STAT. 3855/1-10 (2010) (definition of “renewable energy resources”). ZELLER-POWELL 1/10/2012 9:09 AM 418 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 b. Massachusetts Massachusetts’s Renewable Portfolio Standard considers “low emission advanced biomass power conversion technologies” to be eligible sources of renewable energy.383 Older biomass facilities retrofitted with advanced conversion technologies may be eligible if approved by the Department of Energy Resources.384 Biomass fuels that are specifically permitted include “wood, by-products or waste from agricultural crops, food or animals, energy crops, biogas, [and] liquid biofuel.”385 State regulations further define “eligible biomass fuel” to include clean wood waste such as brush, stumps, lumber ends and trimmings, wood chips, shavings, and slash; energy crops; by- products or waste from animals or agricultural crops; and biogas.386 Draft regulations proposed in September 2010 and revised in May 2011 limit eligible woody biomass fuel to forest derived residues, forest salvage, nonforest derived residues, and energy crops; limit the proportion of a timber harvest that can be considered eligible biomass fuel; and define “low emission” biomass energy.387 As part of receiving certification as a low emission biomass facility, the facility must demonstrate that a life cycle analysis of greenhouse gas emissions shows, using a twenty-year life cycle, at least a fifty percent reduction of greenhouse gas emissions per unit of energy as compared to a natural gas facility using the “most efficient commercially available technology.”388 The proposed regulations have received negative feedback from the forest products industry.389 c. New Jersey Biomass fuel that is cultivated and harvested in a sustainable manner is considered a Class I renewable energy source under New Jersey’s Renewables Portfolio Standard.390 Regulations further 383 MASS. GEN. LAWS ch. 25A, § 11F(b)(8) (2010). 384 Id. § 11F(b). 385 Id. § 11F(b)(8). 386 225 MASS. CODE REGS. 14.02 (definition of Eligible Biomass Fuel) (2011). 387 225 MASS. CODE REGS. § 14.02 (adding definition of Eligible Biomass Woody Fuel) (proposed revision); 225 MASS. CODE REGS. §§ 14.05(1)(a)(7)–(8) (proposed revision). 388 Id. § 14.05(1)(a)(7). 389 See e-mail from David Tenny, Pres. & CEO, Nat’l Alliance of Forest Owners, to Mass. Dep’t. of Energy Res. (Oct. 21, 2010), available at nafoalliance.org/wp-content /uploads/NAFO-comments-10-21.pdf. 390 N.J. REV. STAT. ANN. § 48:3-51 (West 2011) (definition of “Class I renewable energy”). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 419 explain that the definition of eligible biomass includes, among other materials, dedicated energy crops and trees, wood and wood residues, and other waste materials, but does not include old-growth timber.391 The regulations further define eligible wood and wood residues to mean wood from the thinning of trees or from the forest floor,392 ground or shredded scrap wood that does not contain any metal,393 and wood waste from lumberyards or paper mills, excluding black liquor.394 Certain types of woody biomass are not eligible for Class I status, including treated, painted, or chemically coated wood; wood waste from demolition or construction; old-growth timber; and “wood harvested from a standing forest” unless the forest is a bioenergy plantation.395 The regulations also require biomass facilities to receive approval of both the type of biomass fuel used and the facilities’ pollution control methods before they can be certified as sources of Class I renewable energy.396 d. Pennsylvania Under Pennsylvania’s Alternative Energy Portfolio Standard, biomass energy is considered a source of renewable energy.397 Certain types of biomass qualify as Tier I energy sources, including dedicated energy crops;398 crops grown on land protected by the Federal Conservation Reserve Program provided that such crop production is not in conflict with the purposes for which the land was set aside;399 and solid cellulosic waste materials such as pallets, landscape or right-of-way tree trimmings, and agricultural residues from orchards, vineyards, grains, and other crops.400 By-products of the pulping and wood manufacturing processes, such as bark and wood chips, were originally considered Tier II energy sources.401 However, electricity generated from these materials within the state of Pennsylvania is 391 N.J. ADMIN. CODE § 14:8-2.2 (2010) (definition of “biomass”). 392 Id. § 14:8-2.5(d)(2). 393 Id. § 14:8-2.5(d)(4)(i). 394 Id. § 14:8-2.5(d)(4)(ii). 395 Id. § 14:8-2.5(l)(1), (5-7). 396 Id. § 14:8-2.5(d)–(f). 397 73 PA. STAT. ANN. § 1648.2 (2011) (citing definition of Alternative Energy Sources subpart (7)). 398 See id. (definition of Alternative Energy Sources subpart (7)(i)). 399 Id. 400 Id. (definition of Alternative Energy Sources subpart (7)(ii)). 401 Id. (definition of Tier II Alternative Energy Source subpart (6)). ZELLER-POWELL 1/10/2012 9:09 AM 420 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 now considered a Tier I energy source, while electricity generated from these materials out of state is considered Tier II.402 C. Analysis of Definitions of Eligible Biomass in RPS Programs Different states consider a wide variety of biomass materials to be eligible forms of renewable energy. While states consider different biomass materials to be eligible, in terms of the formatting of the statutory language, most states include a list of eligible materials as part of the definition of biomass. One challenge in comparing these definitions is that the statutory language is not always clear as to whether the list of biomass materials is an exhaustive list or a nonexhaustive list of examples. This challenge is especially relevant to the question of whether whole trees that are not waste material, part of a thinning operation, or grown as an energy crop are considered eligible biomass. The vast majority of states’ RPS programs are either ambiguous or explicitly permit the use of “wood” (which includes whole trees). A few states clearly do not allow whole trees to be considered as eligible biomass. Illinois removed the word “trees” from its definition of “renewable energy resources” and replaced it with “tree waste,” indicating a clear intent not to include whole trees as eligible biomass.403 The Massachusetts statute lists “wood” as an example of eligible biomass,404 but regulations limit eligible woody biomass fuel to clean wood waste.405 New Jersey regulations prohibit the use of “wood harvested from a standing forest” to generate Class I energy unless the forest is a bioenergy plantation.406 Pennsylvania’s RPS statute contains an exhaustive list that does not include whole trees but instead includes only waste materials and energy crops.407 Two other states allow whole trees in limited circumstances only. Colorado allows “materials removed as part of a federally recognized timber sale” to be considered eligible biomass.408 Virginia limits the overall 402 66 PA. CONS. STAT. § 2814(b) (2008). 403 See S.B. 2150, 96th Gen. Assemb., Reg. Sess. (Ill. 2009), available at http://www.ilga.gov/legislation/publicacts/96/096-0159.htm. 404 MASS. GEN. LAWS ch. 25A, § 11F(b)(8). 405 See 225 MASS. CODE REGS. 14.02 (2010) (citing definition of Eligible Biomass Fuel). 406 N.J. ADMIN. CODE § 14:8-2.5(l)(7). 407 73 PA. STAT. ANN. § 1648.2 (2011) (citing definition of Alternative Energy Sources subpart (7)); 66 PA. CONS. STAT. § 2814(b) (2011). 408 COLO. CODE REGS. § 723-3652(b) (2010). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 421 volume of “tree[s] or any portion of a tree which . . . can be used for lumber and pulp manufacturing . . . in Virginia” that can be used for generating RPS eligible electricity.409 These six states at least limit, and some prohibit, the use of whole trees as eligible biomass, but this is a clear minority of the thirty-eight states with RPS programs. Some states require that eligible woody biomass be grown according to forest management plans. Delaware requires detailed conservation and management plans for the growth and harvest of eligible woody biomass.410 New York requires detailed forest management plans and harvest plans for commercially harvested wood.411 Michigan’s RPS statute mentions trees and wood from sustainably managed forests or procurement systems412 but only references another statute discussing what constitutes a sustainably managed forest. Similar to the issue of the eligibility of whole trees, the number of states that require forest management plans is a small minority. Several states exclude old-growth trees from eligible woody biomass. Connecticut excludes biomass from old-growth timber stands from Class I renewable energy sources, although there may be some exceptions for older facilities.413 Delaware excludes from eligible biomass material from trees more than 150 years old.414 Maryland excludes old-growth timber from eligible biomass, and the RPS contains a detailed description of what constitutes old-growth.415 New Jersey does not consider old-growth timber to be a source of eligible biomass.416 Washington excludes wood from old-growth forests from eligible biomass.417 There is no single, widely accepted definition of what constitutes old-growth forest nor any uniform measurement methodology for applying existing definitions.418 However, despite this lack of 409 VA. CODE ANN. § 56-585.2(F) (2010). 410 7-100-106 DEL. ADMIN. CODE § 5.3 (2006). 411 N.Y. PUB. SERV. COMM’N, supra note 317, app. B at 4. 412 MICH. COMP. LAWS § 460.1003(f)(iv) (2010). 413 CONN. GEN. STAT. § 16-1(45) (2010). 414 7-100-106 DEL. CODE REGS. § 5.3. 415 MD. CODE, PUB. UTIL. COS. § 7-701(e)(2) (2010). 416 N.J. ADMIN. CODE § 14:8-2.2 (2010) (definition of “biomass”). 417 WASH. REV. CODE § 19-285-030(18)(i) (2010). 418 NAT’L COMM’N SCI. FOR SUSTAINABLE FORESTRY, BEYOND OLD GROWTH: OLDER FORESTS IN A CHANGING WORLD, A SYNTHESIS OF FINDINGS FROM FIVE REGIONAL WORKSHOPS 12 (2008). ZELLER-POWELL 1/10/2012 9:09 AM 422 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 uniformity in assessment methods, it is clear that old-growth forests do not compromise a significant portion of forestland in the eastern United States.419 Four out of the five states that exclude old-growth timber from eligible biomass are in the Northeast United States where less than one percent of forestland is old-growth forest.420 The Southeast and Great Lakes areas have even lower percentages of old- growth forest, but no states in these regions explicitly prohibit the use of old-growth timber under their RPS programs.421 However, while Illinois, a state in the Great Lakes region, does not prohibit the use of old-growth trees per se, because the use of whole trees is not permitted, old-growth trees would not be considered eligible biomass under the state’s RPS.422 Of all regions in the United States, the Pacific Northwest has the largest percentage of old-growth forests, ranging from six to twenty-one percent, depending on the definition of old-growth.423 Washington is the only state in the Pacific Northwest that prohibits the use of old-growth timber under its RPS, and no states in this region prohibit the use of whole trees. There are many factors that impact a state’s decision to exclude old-growth timber from eligible biomass under RPS programs. States with few remaining old-growth stands may be more likely to exclude old- growth timber from eligible biomass definitions. The management of old-growth forests is a complicated issue, invoking politics, economics, and emotions, that has many aspects that extend outside the realm of renewable energy. Several states’ RPS programs address nitrogen oxide, particulate, and/or greenhouse gas emissions from biomass facilities. Connecticut considers low emission advanced biomass conversion technologies to be an eligible source of renewable energy if nitrogen oxide emissions from these sources meet certain limits.424 Massachusetts uses nearly the same term—low emission advanced biomass power conversion technologies—but does not address nitrogen oxide emissions.425 However, Massachusetts has proposed restrictions on greenhouse 419 Id. 420 Id. 421 Id. 422 See S.B. 2150, 96th Gen. Assemb., Reg. Sess. (Ill. 2009), available at http://www .ilga.gov/legislation/publicacts/96/096-0159.htm. 423 NAT’L COMM’N SCI. FOR SUSTAINABLE FORESTRY, supra note 418, at 13. 424 CONN. GEN. STAT. § 16-245n(a) (2010); id. at § 16-1(a)(26)(A). 425 MASS. GEN. LAWS ch. 25A, § 11F(b)(8) (2010). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 423 gases from woody biomass electricity.426 Montana describes eligible biomass as “low-emission” but does not elaborate on the meaning of “low-emission.”427 New Hampshire requires that eligible biomass technologies meet nitrogen oxide and particulate standards.428 Biomass facilities in New Jersey must receive approval of their pollution control methods.429 North Carolina requires biomass facilities use best available control technology.430 All of the states listed above, except Massachusetts, address emissions from biomass facilities as a local air quality problem, focusing on nitrogen oxides (precursors of acid rain and ground level ozone), particulates, and general pollution control. In contrast, Massachusetts’s proposed regulations focus on limiting greenhouse gas emissions from biomass facilities, thus addressing global climate change rather than local air quality.431 Clearly, both local air quality and global climate change are important issues. Ideally, RPS programs that are designed to assist states in transitioning to non-fossil fuel-based energy systems should address both issues. V LEGAL TREATMENT OF GHG EMISSIONS FROM BIOENERGY IN DEFINITIONS OF BIOMASS IN FEDERAL LAW AND PROPOSED FEDERAL LEGISLATION Biomass was first defined in federal law in the Energy Security Act of 1980.432 Biomass was defined as “any organic matter which is available on a renewable basis, including agricultural crops and agricultural wastes and residues, wood and wood wastes and residues, animal wastes, municipal wastes, and aquatic plants.”433 Nearly twenty years later, a Presidential Executive Order issued in 1999 defined biomass as “any organic matter that is available on a 426 Proposed revision to 225 MASS. CODE REGS. 14.05(1)(a)(7)(f)(iii) (May 2011), available at www.mass.gov/eea/docs/doer/renewables/biomass/225-cmr-14-00-050311 -biomass-draft-reg-with-tracked-changes.pdf. 427 See MONT. CODE ANN. § 69-3-2003(10)(g) (2010). 428 N.H. REV. STAT. ANN. § 362-F:2 (VIII)(a) (2010). 429 N.J. ADMIN. CODE § 14:8-2.5(d)–(f) (2010). 430 N.C. GEN. STAT. § 62-133.8(g) (2009). 431 See proposed revision to 225 MASS. CODE REGS. 14.05(1)(a)(7)(f)(iii) (May 2011), available at www.mass.gov/eea/docs/doer/renewables/biomass/225-cmr-14-00-050311 -biomass-draft-reg-with-tracked-changes.pdf. 432 See Energy Security Act of 1980, Pub. L. No. 96-294, § 203(2)(A), 94 Stat. 611 (1980). 433 42 U.S.C. § 8802(2)(A) (2010). ZELLER-POWELL 1/10/2012 9:09 AM 424 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 renewable or recurring basis (excluding old-growth timber), including dedicated energy crops and trees, agricultural food and feed crop residues, aquatic plants, wood and wood residues, animal wastes, and other waste materials.”434 Old-growth timber means “timber of a forest from the late successional stage of forest development. The forest contains live and dead trees of various sizes, species, composition, and age class structure.”435 These two definitions of biomass were likely used as early model definitions because they are similar, and in some cases identical, to many definitions of eligible biomass in state RPS programs.436 Federal legislation enacted in the last several years is notable for the lack of a uniform definition of biomass. Indeed, sometimes a single bill may have multiple definitions of biomass.437 To some extent, having multiple definitions of biomass is a result of different laws focusing on different issues. For example, in the Energy Policy Act of 2005 (EPAct of 2005) in the section related to the Renewable Energy Security Provision, biomass is broadly defined to include “wood and wood wastes and residues.”438 In contrast, the section in the EPAct of 2005 related to the “grants to improve commercial value of forest biomass for electric energy, useful heat, transportation fuels and other commercial purposes,” biomass is limited to waste by- products and defined as “nonmerchantable materials or precommercial thinnings that are byproducts of preventive treatments, such as trees, wood, brush, thinnings, chips, and slash, that are removed—(A) to reduce hazardous fuels; (B) to reduce or contain disease or insect infestation; or (C) to restore forest health.”439 The biomass industry has lobbied for a unified biomass definition.440 Several issues related to the definition of woody biomass are not treated uniformly in federal law and proposed legislation. First, there 434 Exec. Order No. 13,134, 64 Fed. Reg. 44,639, 44,641 (Aug.12, 1999). 435 Id. 436 See, e.g., NEV. REV. STAT. § 704.007 (2010) (uses same language as Energy Security Act of 1980); N.J. ADMIN. CODE § 14:8-2.2 (2010) (explicitly adopts definition of biomass from Exec. Order No. 13,134). 437 Compare 42 U.S.C. § 15,852(b)(1) (2010) with 42 U.S.C. § 6865(c)(6)(B) (2010) (These two bills illustrate this point by having separate definitions of biomass in the text.). 438 Energy Policy Act of 2005, Pub. L. No. 109-58, § 206(a)(6)(B), 119 Stat. 654 (1980). 439 42 U.S.C.A. § 15855(a)(1) (2011). 440 See Michael Brower, American Council on Renewable Energy Leading Biomass Definition Effort, ENERGYPULSE (Dec. 23, 2010), http://www.energypulse.net/centers /article/article_display.cfm?a_id=2372. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 425 is disagreement over whether woody biomass materials from federal lands should be considered eligible sources of biomass, and if so, what types of woody biomass materials are eligible. Second, federal law is split regarding whether eligible biomass from private forestland should be restricted to residue and waste materials or instead include merchantable whole trees. Third, only a few definitions of biomass address the issue of land use change resulting from the conversion of forested or agricultural land into land for growing energy crops. These issues are significant because, while none of these definitions specifically address GHG emissions, they are all related to the overall GHG emissions of biomass electricity. A. Treatment of Woody Biomass from Federal Lands Federal law and recently proposed legislation are split regarding whether eligible biomass includes woody biomass materials from federal lands, and if so, what types of materials are eligible. None of the definitions of eligible biomass in the EPAct of 2005 addressed biomass from federal lands, but the definitions are broadly stated so that biomass from federal lands would be eligible.441 For example, the Federal Purchase Requirement for Renewable Energy passed as part of the EPAct of 2005 does not specifically address biomass from federal land but allows the use of “any [segregated] lignin waste and any . . . cellulosic material . . . derived from . . . any of the following forest-related resources: mill residues, precommercial thinnings, slash, and brush, or nonmerchantable material.”442 Based on this broad definition, waste materials from logging or thinning operations on federal land would be considered eligible. In 2007, there was a shift toward limiting, or in some cases completely excluding, biomass from federal lands. The Energy Independence and Security Act of 2007443 contained two definitions of biomass. The definition of eligible biomass for the Renewable Fuel Standard excludes biomass from federal lands in any form.444 The identical definitions of eligible biomass in the Express Loans for Renewable Energy and Energy Efficiency program and the Small 441 See Energy Policy Act of 2005, Pub. L. No. 109-58, § 203(b)(1), § 206(a)(6)(B), § 210(a)(1), § 932(a)(1), § 1307 (amending 26 U.S.C.A. § 48(A)(c)(4)), § 1512 (amending 42 U.S.C. 7545 § 211(R)(4)(B)). 442 Id. § 203(b)(1). 443 Energy Independence and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 1492 (2007). 444 Id. § 201(1)(I). ZELLER-POWELL 1/10/2012 9:09 AM 426 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 Business Energy Efficiency Program do not specifically address biomass from federal land but this material would be eligible under the broad language of the definition.445 Changes to the tax code in 2007 do not specifically address biomass materials from federal land.446 The most recently enacted federal legislation defining renewable biomass—the Food, Conservation, and Energy Act of 2008 (FCEA)—contained a single definition that permitted biomass from federal lands but only biomass that was the “byproduct of preventive treatments” that “would not otherwise be used for higher-value products.”447 FCEA also provided funding for development of biomass projects, with priority given to projects using “low-value forest biomass” for energy production.448 Four pieces of federal legislation proposed between 2009 and 2010 include definitions of biomass. These definitions treat biomass from federal lands in one of two ways. Three bills, the American Clean Energy and Security Act (ACESA) of 2009,449 the Clean Energy Jobs and American Power Act (CEJAPA),450 and the discussion draft of the American Power Act (AmPA),451 have essentially identical definitions of eligible biomass from federal lands. This definition allows the use of “[m]aterials . . . from National Forest System land and public lands . . . that are removed as part of a federally recognized timber sale,” but does not allow any biomass from federal land in various conservation programs or trees harvested from old-growth or late-successional stands.452 This definition is broad in scope and not limited to waste or residue materials. 445 See id. §§ 1201(aa)(BB)–(CC), 1203(e)(z)(4)(A)(i)(II)–(III). 446 See 26 U.S.C. § 45(c)(2)–(3) (2011) (closed and open loop biomass); id. § 45K(c)(3); id. § 48B(c)(4). 447 Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246 § 9001(12)(A), 122 Stat. 2066 (2011). 448 Id. § 9012(c)(1). 449 American Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong. §§ 101(a), 610(a)(15)(A) (2009) (sponsored by Representatives Waxman and Markey). This bill passed the House but not the Senate. 450 See Clean Energy Jobs and American Power Act, S. 1733, 111th Cong. §§ 162(b)(2), 700(46)(I) (2010) (sponsored by Senators Kerry, Boxer, and Kirk). 451 American Power Act discussion draft, §§ 700(44)(A), 2214(a)(3) (May 12, 2010), available at http://kerry.senate.gov/work/issues/issue/?id=7f6b4d4a-da4a-409e-a5e7 -15567cc9e95c (sponsored by Senators Kerry and Lieberman). 452 See, e.g., H.R. 2454 § § 101(a), 610(a)(15)(A). These conservation lands include the National Wilderness Preservation System, Wilderness Study Areas, Inventoried Roadless Areas, National Landscape Conservation System, National Monuments, National ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 427 The American Clean Energy Leadership Act (ACELA) of 2009453 treats biomass from federal lands differently. This definition limits eligible biomass from federal lands to the following: slash; “byproducts of ecological restoration, disease or insect infestation control, or hazardous fuels reduction treatments”; and material not useable for sawtimber because of size or quality.454 Biomass from designated conservation areas on federal land, National Monuments, and trees from old-growth and late-successional forest stands are not eligible.455 These two definitions in proposed legislation have some similarities but, overall, represent very different approaches to the eligibility of biomass from federal lands. Both definitions exclude biomass material harvested from federal conservation areas and trees from old-growth and late-successional forest stands. However, the ACELA limits biomass from federal land to waste materials while the CEJAPA, ACESA, and AmPA bills do not. By limiting eligible biomass from federal lands to residues, by-products, and material unusable as sawtimber, the ACELA makes a far smaller volume of biomass from federal land eligible than the approach taken in the three other bills mentioned above. The Oregon Eastside Forests Restoration, Old Growth Protection, and Jobs Act of 2011 has been proposed, in part, to “conserve and restore the eastside forests of the [s]tate” of Oregon.456 This legislation proposes to “use the value of merchantable sawlogs and biomass to help offset the cost of ecological restoration activity.”457 While this proposed legislation does not explicitly define biomass, it does refer to biomass as “consist[ing] of slash, brush, and any tree that does not exceed the minimum size standards for sawtimber.”458 The distinction between merchantable sawlogs and biomass is most likely due to economic considerations rather than concern regarding life cycle GHG emissions. However, in this situation, economic Conservation Areas, Designated Primitive Areas, Wild and Scenic Rivers corridors, and trees in old growth and late-successional stands. Id. § 610(a)(15)(A)(i). 453 American Clean Energy Leadership Act of 2009, S. 1462, 111th Cong. § 133(1)(b)(1)(K) (2009) (sponsored by Senator Bingaman). 454 Id. 455 Id. § 133(1)(b)(3)(B)(i)–(ii). 456 Oregon Eastside Forests Restoration, Old Growth Protection, and Jobs Act of 2011, S. 2895, 111th Cong. § 2(1) (2009) (sponsored by Senator Wyden). 457 Id. §§ 4(b)(vii), 9(a)(4)(B)(viii). 458 Id. § 12(b)(2)(A). ZELLER-POWELL 1/10/2012 9:09 AM 428 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 considerations have the effect of limiting biomass from federal lands to waste materials. Overall, current federal law contains both definitions that treat biomass from federal land differently than biomass from private land and definitions that make no distinction.459 All recently proposed federal legislation specifically addresses biomass from federal lands, considers waste materials from federal land to be eligible biomass, and does not allow biomass from conservation areas or old-growth or late-successional stands.460 However, this proposed legislation is split regarding whether merchantable whole trees from federal lands should be eligible; ACESA of 2009, CEJAPA, and AmPA allow whole trees from federal land but ACELA of 2009 does not.461 B. Biomass from Private Forestland: Waste Materials Only or Merchantable Whole Trees? Another debated aspect of the definition of eligible biomass is whether to restrict biomass from private forestland to residue and waste materials or to include merchantable whole trees as eligible. The definitions of eligible biomass in the Energy Policy Act of 2005 (EPAct) are split, with four definitions limiting eligible biomass to waste or by-product materials and two definitions considering merchantable whole trees as eligible.462 For example, the Grants to Improve the Commercial Value of Forest Biomass for Electric 459 See, e.g., 42 U.S.C. § 7545(o)(1)(I) (2011) (Renewable Fuel Standard specifically excludes biomass materials from federal lands.); 15 U.S.C. § 636(a)(31)(F)(i)(I) (2011) (Express Loans for Renewable Energy and Energy Efficiency has broad language that does not specifically address biomass from federal lands.). 460 H.R. 2454 § 101(a) § 610(a)(15)(A); S. 1733 § 102 § 700(46)(I); American Power Act discussion draft, § 2002(a)(44)(A); S. 1462 § 133(1)(b)(1)(K). 461 See American Clean Energy and Security Act of 2009, supra note 449. 462 Definitions that limit eligible biomass from private forestland to waste materials include Energy Tax Policy Act 2007 Pub. L. No. 109-58 § 203(b)(1), 119 Stat. 652 (Federal Government Purchase Requirement for Renewable Energy); Energy Tax Policy Act 2007 Pub. L. No. 109-58 § 210(a)(1), 119 Stat. 658 (Grants to Improve the Commercial Value of Forest Biomass for Electric Energy, Useful Heat, Transportation Fuels and Other Commercial Purposes Program); Energy Tax Policy Act 2007 Pub. L. No. 109-58 § 932(a)(1)(C), 119 Stat. 870 (Bioenergy Program for research and development of bioenergy); Energy Tax Policy Act 2007 Pub. L. No. 109-58 § 1307 § 48B(c)(4)(iii), 119 Stat. 1004 (Credit for Investment in Clean Coal Facilities). Definitions that do not limit eligible biomass from private forestland to waste materials include Energy Tax Policy Act 2005 Pub. L. No. 109-58 § 206(a)(6)(B), 119 Stat. 655 (Renewable Energy Security); Energy Tax Policy Act 2005 Pub. L. No. 109-58 § 1512(r)(4)(B), 119 Stat. 1089 (Conversion Assistance for Cellulosic Biomass, Waste-Derived Ethanol, Approved Renewable Fuels Grants Program). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 429 Energy, Useful Heat, Transportation Fuels, and Other Commercial Purposes program defines biomass as “nonmerchantable materials or precommercial thinnings that are byproducts of preventive treatments.”463 In contrast, the Renewable Energy Security program defines biomass as “any organic matter that is available on a renewable or recurring basis, including . . . wood and wood wastes and residues.”464 None of the biomass definitions in the EPAct distinguish between biomass from federal land and private land so biomass material from private and public land is treated in the same manner. The Energy Independence and Security Act (EISA) of 2007 includes both definitions that restrict woody biomass to waste materials and definitions that allow merchantable whole trees. The Renewable Fuel Standard limits eligible biomass to “slash and pre- commercial thinnings . . . from non-federal forestlands” and “planted trees . . . from actively managed tree plantations.”465 While privately owned timber lands are sometimes referred to as tree plantations, the meaning of that term here most likely refers to trees grown as energy crops because the statute separately refers to privately owned forestland.466 Thus, waste materials are the only type of woody biomass from private forestlands that is considered eligible. The broad language in the identical definitions of eligible biomass for the Express Loans for Renewable Energy and Energy Efficiency program and the Small Business Energy Efficiency Program does not distinguish between biomass from private and federal lands. 467 The language is somewhat ambiguous but likely does not limit eligible woody biomass to waste materials.468 The Electricity Produced from Certain Renewable Resources section of the tax code divides biomass into “closed-loop biomass” and “open-loop biomass.”469 Close-loop biomass includes any organic 463 Pub. L. No. 109-58, § 210(a)(1). 464 Id. § 206(a)(6)(B). 465 Pub. L. No. 110-140 § 201(1)(I)(iv), (ii). 466 Id. § 201(1)(I)(iv) (referring to non-federal forestlands). 467 See id. § 1201(aa)(BB)–(CC); id. § 1203(e)(z)(4)(A)(i)(II)–(III). 468 See id. § 1201(aa)(BB)–(CC); id. § 1203(e)(z)(4)(A)(i)(II)–(III) (defining biomass as “any organic material that is available on a renewable or recurring basis, including…trees grown for energy production…[and] wood waste and wood residues”). 469 26 U.S.C. § 45(c)(2)–(3)(2011) (closed- and open-loop biomass). The Renewable Electricity, Refined Coal, and Indian Coal Production Credit (IRS Form 8835) is associated with this definition of biomass. ZELLER-POWELL 1/10/2012 9:09 AM 430 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 material planted exclusively for the purpose of producing electricity,470 in other words, energy crops. Open-loop biomass includes only waste materials including “mill and harvesting residues, precommercial thinnings, slash, and brush.”471 The Qualifying Gasification Project Credit limits eligible biomass to waste materials including “byproduct[s] of wood or paper mill operations” and “other products of forestry maintenance.”472 None of these three definitions include merchantable whole trees. However, the Tax Credit for Producing Fuel from a Nonconventional Source broadly defines biomass to include any organic material other than oil, natural gas, and coal, so merchantable whole trees are eligible under this definition.473 The Food, Conservation, and Energy Act of 2008 allows “any organic matter” available on a renewable basis from nonfederal land to qualify as eligible biomass.474 In contrast, this same act restricts biomass from federal lands to waste materials with no higher-value use.475 All recently proposed legislation that defines biomass permits the use of merchantable whole trees from private land for biomass energy. The American Clean Energy and Security Act of 2009476 and the discussion draft of the American Power Act477 contain identical definitions of eligible biomass. This definition of biomass allows “[a]ny organic matter that is available on a renewable . . . basis from non-Federal land . . . including . . . plants and trees.”478 This definition contains no other restrictions regarding the eligibility of biomass from private lands.479 Other recently proposed legislation considers merchantable whole trees from private land to be eligible biomass but restricts or does not include biomass from private conservation forestland. The American Clean Energy Leadership Act of 2009 defines eligible biomass to 470 Id. 471 Id. § 45(c)(3)(A)(ii)(l). 472 Id. § 48b(c)(4)(A). 473 Id. § 45k(c)(3). 474 Pub. L. No. 110-246, § 9001(12)(B). 475 Pub. L. No. 110-246, § 9001(12)(A). 476 H.R. 2454 § 101(a), § 610(a)(15)(B). 477 American Power Act discussion draft § 2002(a)(44)(B). 478 H.R. 2454 § 101(a), § 610(a)(15)(B)(i)(III); American Power Act discussion draft § 2002(a)(44)(B). 479 H.R. 2454. ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 431 include trees harvested from “naturally regenerated forest land, forest land that was planted for the purpose of restoring land to a naturally regenerated forest,” conservation forestland if harvesting methods maintain or contribute to the restoration of the land, and “planted forest land” planted prior to the enactment of the proposed bill.480 The two categories of naturally regenerated forestland and planted forestland encompass all private forests. Thus, biomass from private conservation forestland harvested in an unsustainable manner is the only type of excluded biomass from private land. The Clean Energy Jobs and American Power Act (CEJAPA) defines eligible biomass to include whole trees harvested from “naturally regenerated forests or other non-plantation forests” on private land provided the land “is not high conservation priority land.”481 Unlike the ACELA, in the CEJAPA there is no exception to the exclusion of biomass from high conservation priority land if appropriate, sustainable harvesting methods are used.482 Overall, existing federal legislation is split between allowing merchantable whole trees from private forestlands and restricting biomass from private forestlands to waste materials. However, all recently proposed federal legislation defines eligible biomass to include merchantable whole trees from private forestlands, suggesting a trend in this direction. C. Energy Crops and Land Use Change All definitions of biomass in existing and proposed legislation permit the use of woody energy crops. A few definitions of biomass in federal legislation address the issue of land use change, specifically, the conversation of forested or agricultural land into land for growing energy crops. The conversion of forested land to tree plantations results in lower levels of carbon storage and an initial carbon debt that takes decades to pay back483 The conversion of 480 American Clean Energy Leadership Act of 2009, S. 1462, 111th Cong. § 133(1)(b)(1)(I)–(II). 481 Clean Energy Jobs and American Power Act, S. 1733, 111th Cong. § 102 § 700(46)(H). 482 See id. 483 L.B. Guo & R.M. Gifford, Soil Carbon Stocks and Land Use Change: A Meta Analysis, 8 GLOBAL CHANGE BIOLOGY 345, 347 fig.1 (2002) (indicating decreased levels of carbon in land converted from forest to tree plantation); ZANCHI ET AL., supra note 3, at 30 (noting a 45–170 year payback period for the carbon debt incurred from converting forestland to tree plantations). ZELLER-POWELL 1/10/2012 9:09 AM 432 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 agricultural land to land for energy crops can increase food prices and result in the clearing of other land to create new agricultural land.484 The Renewable Fuel Standard, as enacted in the Energy Independence and Security Act of 2007, restricts eligible woody energy crops to “actively managed tree plantations on non-federal land cleared at any time prior to enactment of this sentence . . . .”485 The proposed American Clean Energy Leadership Act of 2009 and proposed Clean Energy Jobs and American Power Act similarly restrict eligible woody energy crops so as to not incentivize land use change.486 Overall, the issue of potential land use change caused by expanded production of energy crops has not been widely addressed in definitions of eligible biomass in federal law and proposed legislation. However, there may be a trend in this direction because half of the recently proposed legislation addresses land use change from energy crops. D. Summary of Federal Definitions of Biomass Federal law and proposed legislation do not uniformly address several issues related to the definition of woody biomass. While existing and proposed legislation differ as to whether merchantable whole trees from federal lands should be considered eligible sources of biomass, proposed legislation consistently addresses biomass from federal lands separately from materials from private lands, permits the use of woody waste materials from federal lands, and does not allow materials from federal conservation areas, or old-growth or late- successional stands. Current federal law is split regarding whether merchantable whole trees from private forestland are considered eligible biomass, but all proposed legislation considers this type of biomass eligible, suggesting a trend towards allowing whole trees. Existing and proposed legislation does not generally address land use change resulting from the conversion of forested or agricultural land into land for growing energy crops, but this issue is gaining greater recognition in recently proposed legislation. Many federal laws and most definitions of biomass in state RPS programs contain few limits on the types of eligible biomass. In 484 See generally Rosamond L. Naylor et al., The Ripple Effect: Biofuels, Food Security, and the Environment, 49 ENVIRONMENT Nov. 2007 at 30. 485 Pub. L. No. 110-140, § 201(1)(I)(ii). 486 S. 1462, 111th Cong. § 133(1)(b)(1)(I)(ii)–(1)(b)(1)(J); S. 1733, § 700(46)(H)(i). ZELLER-POWELL 1/10/2012 9:09 AM 2011] Defining Biomass as a Source of Renewable Energy 433 general, these “first generation” definitions are similar to the definitions of biomass found in the Energy Security Act of 1980487 and in the Presidential Executive Order issued in 1999. 488 However, some states, such as Illinois, New Jersey, and Pennsylvania, have written or revised their RPS definitions of eligible biomass to exclude whole trees. Some federal laws, such as the Federal Purchase Requirement for Renewable Energy passed as part of the Energy Policy Act of 2005,489 also exclude whole trees. In contrast, all recently proposed federal legislation considers whole trees from private forests to be eligible biomass. However, all recently proposed federal legislation contains definitions of biomass that are generally more detailed and developed than the “first generation” definitions mentioned above. Unlike a few state RPS programs,490 no federal law or proposed legislation requires an LCA of GHG emissions or certification regarding the source of the biomass. Despite the lack of these requirements, several issues related to the overall GHG emissions of biomass electricity are addressed in federal legislation because these issues are also related to economic, ecological, and social values. Life cycle analyses of GHG emissions from biomass electricity generated using whole trees demonstrate that, at least in some cases, this electricity does not reduce GHG emissions on the timescale required to combat climate change. However, some federal laws and proposed legislation treat whole trees as eligible biomass without analyzing whether, in fact, GHG emission reductions are realized from this fuel type. VI CONCLUSIONS AND RECOMMENDATIONS Definitions of eligible biomass in state RPS programs and federal laws and proposed legislation vary in content and complexity. The majority of states have broad RPS definitions of eligible biomass with few restrictions on the type of fuel, management and harvest practices, and emissions. As biomass has generally been considered “carbon neutral” in the past, it is not surprising that all RPS programs, 487 Energy Security Act of 1980, Pub. L. No. 96-294, 94 Stat. 611 (1980). 488 Exec. Order No. 13,134, 64 Fed. Reg. 44,639, 44,641 (Aug. 12, 1999). 489 Energy Policy Act of 2005, Pub. L. No. 109-58, § 203(b)(1)(A). 490 E.g., 7-100-106 DEL. ADMIN. CODE § 5.3 (2010); N.Y. PUB. SERV. COMM’N, supra note 317, amended app. B at 4. ZELLER-POWELL 1/10/2012 9:09 AM 434 J. ENVTL. LAW AND LITIGATION [Vol. 26, 367 except for Massachusetts’s proposed regulations,491 and all federal laws and proposed legislation do not consider greenhouse gas emissions from woody biomass.492 However, as the general understanding of the life cycle of carbon emissions from biomass energy becomes more nuanced, the label “carbon neutral” does not describe some types of biomass when a twenty to thirty year time frame is considered. With this more nuanced understanding of carbon emissions from biomass energy, it now makes sense to reconsider RPS program and federal definitions of eligible biomass and the role of biomass carbon emissions in these definitions. It seems likely, based on LCAs of carbon emissions and the need to reduce carbon emissions in the short to medium length time frame, that the chipping of old-growth trees and slow-growing whole trees that could be used for other purposes should not be considered eligible biomass for laws incentivizing biomass energy. Now that we have a greater understanding of GHG emissions through LCAs that account for the carbon debt created by harvesting trees and payback over time, narrower definitions of eligible biomass are called for if biomass electricity is to successfully play a role in reducing GHG emissions. Federal laws and state RPS programs should incorporate life cycle analyses of GHG emissions in order to more effectively incentivize biomass fuels that reduce GHG emissions. 491 See proposed revision to 225 MASS. CODE REGS. 14.05(1)(a)(7)(f)(iii) (May 2011). 492 Connecticut’s RPS requires that “alternative fuels, used for electricity generation…derived from agricultural produce, food waste or waste vegetable oil…provide net reductions in greenhouse gas emissions and fossil fuel consumption” in order to be eligible renewable energy. CONN. GEN. STAT. § 16-245n(a) (2010). However, woody biomass is not one of the sources of biomass subject to this restriction.