U.S. Court Ruling on 2014-2016 RVOs Unlikely Before 2017

Source: By Jeff Barber, OPIS • Posted: Thursday, June 9, 2016

A U.S. appeals court ruling on legal challenges to the Environmental Protection Agency’s 2014-2016 final renewable volume obligation (RVO) won’t come before sometime next year — and potentially not until well into 2017 — based on proposed briefing schedules submitted Monday by the various parties to the case.

In a filing with the U.S. Court of Appeals for the District of Columbia Circuit, EPA, joined by the American Petroleum Association, the American Fuel and Petrochemical Manufacturers, the National Biodiesel Board, Valero Energy and the Small Refinery Coalition Petitioners, proposed a Feb. 23, 2017, deadline for the submission of final briefs. Oral arguments in appellate cases generally come six to eight weeks after final briefs are submitted.

Also on Monday, renewable energy group, including the American Coalition for Ethanol, Americans for Clean Energy, Biotechnology Innovation Organization, Growth Energy and the Renewable Fuels Association, proposed to the court a schedule that would see final briefs submitted by Dec. 13, 2016.

EPA told the court that it believes the proposed briefing deadlines are “reasonable in light of the number of words that may be encompassed by each side’s briefs, the technical nature of the issues presented and the fact that EPA requires substantial time for coordination between EPA and the Department of Justice” and review by EPA and DOJ management.

The proposed schedule, the agency added, also “ensures that briefing on the Renewable Fuel Standard Rule at issue in this matter will not substantially overlap with the notice and comment period and final rulemaking proceedings for the 2017” RVO rule, which EPA is required to issue by Nov. 30, 2016.

But the renewable energy groups, known collectively as Americans for Clean Energy (ACEI), see it differently, telling the court that it should not adopt the agency’s “protracted proposed schedule.”

“The ACEI parties are experiencing continuous irreparable harm from EPA’s distortion of the [Renewable Fuel Standard] scheme contained in the final rule.

EPA’s numerous errors stymie the very investment the RFS was designed to encourage to ensure renewable fuel usage of the specified annually increasing amounts. Years are coming and going and the eventual invalidation of the rule will not fully remedy the harms the ACEI parties are experiencing as Congress’
mandates continue not to be met.”

ACEI said the longer it takes the court to decide the case, the greater the harm to them. The groups also argued that EPA, which last month issued its proposed
2017 RVOs, will be finalized in November and will be based “on an assumed legal framework that will be undone if any of the ACEI parties’ challenges are accepted by this court.”

Because EPA’s proposed schedule would not have final briefs submitted until late February, ACEI said “it would be very likely that this court would not decide this case until after EPA has issued is 2018 proposal … . In fact, if the government’s proposed briefing schedule is adopted, the court may well not decide the case until after EPA has finalized the 2018 rule in November 2017,”
the groups said.

If that should occur and if the court invalidates the 2014-2016 RVOs, then “EPA will probably have to go back to the drawing board and re-propose five years of RFS requirements — 2014, 2015, 2016, 2017 and 2018 — a process that would require a new comment period and take time to resolve, not to mention deal with an increasingly complex compliance situation,” ACEI added