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
Add to Briefcase
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 »
Doesn’t Express Confidence in Marino
Trump to Declare Opioid Emergency Next Week
14 minutes ago
THE LATEST

After initially promising it in August, "President Trump said Monday that he will declare a national emergency next week to address the opioid epidemic." When asked, he also "declined to express confidence in Rep. Tom Marino (R-Pa.), his nominee for drug czar, in the wake of revelations that the lawmaker helped steer legislation making it harder to act against giant drug companies."

Source:
INTERVIEW THIS WEEK
Trump Still Considering Yellen For Fed
7 hours ago
THE LATEST

"President Donald Trump plans to formally interview Janet Yellen this week about potentially staying on as Federal Reserve chair, two people familiar with the matter said...Many Republicans on Capitol Hill want Trump to move on from Yellen, whose first term ends in February, and choose a more traditionally conservative Fed chair."

Source:
NOMINEE FOR ONDCP
Trump Noncommittal on Marino
8 hours ago
THE DETAILS
IN LIGHT OF 60 MINUTES REVELATIONS
Manchin Asks Trump to Drop Marino’s Nomination for Drug Czar
9 hours ago
THE LATEST
WOULD OVERTURN MARINO LEGISLATION ON DRUG DISTRIBUTORS
McCaskill Will Introduce Bill in Response to “60 Minutes” Scoop
9 hours ago
THE DETAILS

In the wake of Sunday's blockbuster 60 Minutes/Washington Post report on opioid regulation and enforcement, Sen. Claire McCaskill (D-MO) has introduced legislation that "would repeal a 2016 law that hampered the Drug Enforcement Administration’s ability to regulate opioid distributors it suspects of misconduct." In a statement, McCaskill said: “Media reports indicate that this law has significantly affected the government’s ability to crack down on opioid distributors that are failing to meet their obligations and endangering our communities."

Source:
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login