The Environmental Protection Agency’s Environmental Appeals Board has paved the way for the new President to regulate CO₂ emissions early in his administration, after ruling that a planned coal-fired power plant should address concerns over its carbon footprint. The Board has temporarily withheld a permit for the proposed Utah plant, arguing that the application should explore ways to control carbon emissions as a regulated pollutant.

The appeal was heard after the Sierra Club argued that a Supreme Court decision on EPA vs Massachusetts last year defined CO₂ as a pollutant. Classifying CO₂ as a pollutant meant that under the Clean Air Act, the Desert Power Electric Co-operative (DPEC), which applied to build the plant, had to incorporate technologies to control carbon emissions in its design.

The Sierra Club argued that the new plant failed to include any such features, and consequently the EPA should not have issued the permit.

The EPA's local body, Region 8, which was responsible for authorising the permit, argued it did not have the authority to deny the permit on those grounds, claiming that the clause in the Clean Air Act requiring technology to curb emissions from plants only covers pollutants that are subject to control via agency regulation.

While classified as a pollutant, CO₂ is not yet subject to control by the EPA. The Agency has failed to make an endangerment finding on the gas, which would then enable it to issue a regulation requiring CO₂ to be controlled.