7 states join opposition to Calif. low-carbon fuel rule

Source: Debra Kahn, E&E reporter • Posted: Thursday, March 22, 2012

Seven Midwestern states are joining ethanol and petroleum producers in opposing enforcement of California’s low-carbon fuel standard.

Nebraska Attorney General Jon Bruning (R) filed a brief March 12 in the 9th U.S. Circuit Court of Appeals against California’s request to continue enforcing its regulation. It was co-signed by the attorneys general of Iowa, Kansas, Michigan, Missouri, North Dakota and South Dakota.

In a sharply worded filing, Bruning — who is running for Nebraska’s open Senate seat — called California’s fuel standard “egregious” and “outrageous.” He said it would jeopardize the sale of billions of dollars of Midwestern ethanol.

The policy is currently on hold, following a December 2011 decision by U.S. District Court Judge Lawrence O’Neill in Fresno that the program violates the Constitution’s commerce clause, which prohibits states from discriminating against interstate trade. The regulation assigns carbon scores to each type of fuel, and most ethanol from the Midwest has a higher score than California-produced ethanol, in part because it is transported over greater distances and uses different electricity sources (E&ENews PM, March 2).

California’s attorney general asked the 9th Circuit to stay O’Neill’s injunction last month, arguing that the program is lowering greenhouse gas emissions. The fuel regulation, in force since last year, is designed to lower the carbon content of fuels sold in the state by 10 percent by 2020 (ClimateWire, Feb. 13).

“It is none of California’s business how farmers in Nebraska choose to grow their corn,” Bruning wrote. “The United States is a common market: California may not blockade out-of-state products in an attempt to force changes in out-of-state farming policies.”

The Midwestern “states may want to encourage cultivation and other economic activity,” he added. “That is our decision to make.”

California Air Resources Board staff responded that the regulation does not discriminate against Midwestern fuels. “The LCFS is an evenhanded standard that encourages the use of cleaner low carbon fuels by regulating fuel-providers in California,” agency spokesman David Clegern said in an email. “The majority of Midwest ethanols already meet the LCFS.”