RFS rule in court, chapter 2019

Source: BY KELSEY TAMBORRINO, Politico • Posted: Monday, September 28, 2020

The D.C. Circuit on Friday hosted the annual legal rite: a challenge to EPA’s blending mandate under the Renewable Fuel Standard, with this round focusing on the rule governing 2019 requirements. Biofuel producers argued that rule should have added additional ethanol volumes to account for the exemptions EPA granted small refiners facing economic hardship, while refiners contended that EPA’s mandate came in too high. Chief Judge Sri Srinivasan and Judges Judith Rogers and Merrick Garland asked refiners few questions of any kind, but they did press the biofuel producers and the government on whether EPA’s decision not to reallocate the volumes back when those refinery exemptions began in 2011 could still be challenged.

Thought bubble: Next year’s fight is likely to be different. In the rule governing 2020’s blending requirements EPA for the first time added an extra 770 million extra gallons of ethanol to account for the refinery exemptions, all part of a White House deal with biofuel producers. This makes challenges to this year’s rule already working their way through the system timely and could force the court to address the legality of reallocating those volumes. Then again, biofuels industry group Renewable Fuels Association is hoping to convince the D.C. Circuit Court that the a district court ruling from January that blocked a handful of waivers should apply nationally, so it may all be moot.

Hey judges, remember that 2017 remand? An attorney for biofuel producers also took the time to ask the judges to press EPA to restore 500,000 gallons of blending requirements the court required back in 2016 as part of another case. The agency hinted it might take action on the remand in last year’s rule, but then just didn’t. “It’s incredibly frustrating,” Emily Skor, CEO of Growth Energy, a biofuels trade association that is among the plaintiffs, told reporters in a call after the hearing.

Enviros get some attention? Environmental groups regularly bring challenges to various aspects of the annual blending rules usually on the grounds that EPA should have consulted agencies about Endangered Species Act requirements. In years past, judges have given these arguments little attention, but Judge Rogers pressed EPA on why its own analysis, which appears to say the RFS does change land use patterns, is inadequate to trigger ESA’s requirements.