Court Fight Over Biofuels Mandate Intensifies as Hill Action Stalls

JOHNSTON, IA: A decal advertising E85 Ethanol is displayed on a gas pump at a Kum and Go gas station on August 7, 2012 in Johnston, Iowa. An exceptionally hot summer and the worst drought in more than a half century has caused cut prospects for the U.S. corn crop to a five-year low and has sent prices up to over $8.00 a bushel in late July trading. The price surge and limited supply has also prompted ethanol plants to voluntarily slow production by 20 percent, a two year low.
National Journal
Clare Foran
Nov. 5, 2013, 2:12 p.m.

As the En­vir­on­ment­al Pro­tec­tion Agency pre­pares to is­sue the 2014 fed­er­al man­date for bio­fuels pro­duc­tion later this month, EPA at­tor­neys con­tin­ue to fight what has be­come an an­nu­al leg­al battle over the re­new­able-fuel stand­ard, or RFS, set for the pre­vi­ous year.

The latest de­vel­op­ment in the on­go­ing lit­ig­a­tion is a re­quest by bio­fuel pro­du­cers to in­ter­vene in an oil-in­dustry law­suit chal­len­ging the 2013 RFS. The suit con­tends that EPA over­reached in set­ting the amount of cel­lu­losic bio­fuels, in­clud­ing corn eth­an­ol, to be blen­ded in the na­tion’s gas­ol­ine sup­ply this year.

“We want EPA to re­vise its meth­od­o­logy for de­term­in­ing the amount of cel­lu­losic bio­fuels re­quired by the RFS so that it ac­cur­ately pre­dicts what will be in the mar­ket­place rather than set­ting as­pir­a­tion­al tar­gets that don’t align with real­ity,” said Rich Moskow­itz, gen­er­al coun­sel for the Amer­ic­an Fuel & Pet­ro­chem­ic­al Man­u­fac­tur­ers (AFPM), a plaintiff in the case. “When EPA gets the num­bers wrong, it hurts re­finers. There can­not be un­cer­tainty in the mar­ket.”

But bio­fuels pro­du­cers worry that the law­suit could dis­mantle the man­date es­tab­lished by Con­gress in 2005 to help wean the coun­try off for­eign oil.

“If this law­suit al­ters the rule in any way, bio­fuels pro­du­cers will feel the im­pact of that the most; and there is no oth­er party that can ad­equately rep­res­ent our in­terests in this court case, so that’s why we’re ask­ing for the abil­ity to in­ter­vene,” said Paul Win­ters, com­mu­nic­a­tions dir­ect­or for the Bi­o­tech­no­logy In­dustry Or­gan­iz­a­tion. BIO, along with Growth En­ergy and the Re­new­able Fuels As­so­ci­ation, filed a mo­tion last Fri­day with the U.S. Court of Ap­peals for the D.C. Cir­cuit re­quest­ing the right to in­ter­vene in the case against EPA.

The law­suit chal­len­ging the 2013 re­new­able-fuel stand­ard was filed by AFPM; Mon­roe En­ergy, a re­finer owned by Delta Air­lines; and the Amer­ic­an Pet­ro­leum In­sti­tute, the trade as­so­ci­ation for the oil and gas in­dustry. The in­dustry groups con­tend that the amount of cel­lu­losic bio­fuels set by the stand­ard is high­er than the mar­ket can sup­ply.

If the mo­tion is gran­ted, the bio­fuels pro­du­cers will be al­lowed to square off against the oil and gas in­dustry in court, with the abil­ity to re­spond dir­ectly to ar­gu­ments brought against EPA in set­ting the stand­ard.

This isn’t the first time the man­date has faced leg­al chal­lenges, and it likely won’t be the last. The Amer­ic­an Pet­ro­leum In­sti­tute con­tested the 2012 RFS rule-mak­ing, while AFPM chal­lenged the 2011 stand­ard.

The ac­tion in fed­er­al court comes as le­gis­la­tion to re­vise the re­new­able-fuel stand­ard is stalled in Con­gress. A num­ber of law­makers — in­clud­ing Reps. Bob Good­latte, R-Va.; Jim Costa, D-Cal­if.; Peter Welch, D-Vt.; and Steve Womack, R-Ark. — have put for­ward pro­pos­als to amend the stand­ard, but so far the House has taken no ac­tion, not even in com­mit­tee.

And as in­ac­tion be­comes the new nor­mal on Cap­it­ol Hill, ad­vocacy or­gan­iz­a­tions may in­creas­ingly turn to lit­ig­a­tion as their best hope for chan­ging fed­er­al policy.

“You’re see­ing a rise in either ac­tu­al lit­ig­a­tion or the threat of lit­ig­a­tion,” said Joshua Ro­sen­stein, a coun­sel with the Wash­ing­ton law firm Sand­ler Re­iff Young & Lamb. “Ad­vocacy groups are be­ing sty­mied be­cause the gov­ern­ment hasn’t been do­ing much and they’ve had to get cre­at­ive; and one of the things I’ve heard people talk­ing about across the in­dustry is seek­ing policy changes through the courts.”

What We're Following See More »
STEPHANIE RAWLINGS-BLAKE TO FILL IN
Wasserman Schultz Won’t Gavel Open the Convention
2 hours ago
THE LATEST

Debbie Wasserman Schultz has given up her last remaining duty at this week's convention. Now, she's told her hometown newspaper, the South Florida Sun-Sentinel, that she will not gavel in the convention today. Baltimore Mayor Stephanie Rawlings-Blake will do the honors instead. "I have decided that in the interest of making sure that we can start the Democratic convention on a high note that I am not going to gavel in the convention," Wasserman Schultz said.

Source:
SUPPORTERS’ RALLY
Sanders Supporters Boo When He Mentions Clinton-Kaine
3 hours ago
THE LATEST

Perhaps this talk of unity has been overstated. Addressing a room full of his supporters today, Bernie Sanders heard "sustained boos" when he said he said it was essential that we elect Hillary Clinton and Tim Kaine.

Source:
ALL EYES ON RUSSIANS
FBI Investigating DNC Hack
3 hours ago
THE LATEST

The FBI this morning issued a statement saying it is "investigating a cyber intrusion involving the DNC," adding that "a compromise of this nature is something we take very seriously." Meanwhile, Hillary Clinton's campaign is suggesting that the hack "was committed by Russia to benefit Donald Trump."

Source:
NEED 300 DELEGATE SIGNATURES
Sanders Delegates Threaten to Challenge Kaine Pick
3 hours ago
THE LATEST

A group of delegates loyal to Bernie Sanders is actively exploring how to challenge Tim Kaine's nomination for the vice presidency. A lead of the group "said he hoped the Democratic National Committee releases information within hours on how to submit a challenger to Kaine, which he said would require the signatures of 300 delegates. He said they have until Wednesday morning to file a challenge to Kaine and stressed that while his group would take any requests from the Sanders campaign under consideration, the delegate group is an independent organization."

Source:
JOHNSON PULLING 26%
A Three-Way Race in Utah?
4 hours ago
THE DETAILS

Here are some more numbers out of Utah that should frighten Donald Trump—and give hope to Gary Johnson. "An internal poll conducted for Rep. Mia Love two weeks ago found Trump at 29 percent, Clinton at 27 percent" and Libertarian candidate Johnson at 26 percent. "That was, however, before Trump picked Indiana Gov. Mike Pence." Utah party chairman James Evans said that move ought to clinch the state for Trump. "Utahns are going to come through because the level of distaste for Hillary is so deep," he said.

Source:
×