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 »
REPORTEDLY TARGETS LGBT
ACLU Suing Trump Administration for Planned Executive Order
1 hours ago
THE DETAILS

"The American Civil Liberties Union is suing the Trump administration for records on an executive order President Trump reportedly planned to release targeting the rights of lesbian, gay, bisexual and transgender people. In a lawsuit filed in the U.S. District Court for the Southern District of New York on Thursday, ACLU claimed the departments of Health and Human Services, Justice, Labor, and Treasury violated the Freedom of Information Act by failing to release the records it requested on the reported draft order."

Source:
THANKS WELL-WISHERS AFTER DIAGNOSIS
McCain: “I’ll Be Back Soon”
1 hours ago
THE LATEST

"John McCain on Thursday thanked well-wishers for an outpouring of support he received after it was announced that the longtime Arizona Senator has brain cancer. "I greatly appreciate the outpouring of support—unfortunately for my sparring partners in Congress, I'll be back soon, so stand-by!" read a message posted on McCain's Twitter account."

Source:
SENATE JUDICIARY COMMITTEE UNANIMOUSLY APPROVES
Christopher Wray Approved as New FBI Director
2 hours ago
THE LATEST
ALPHABAY SOLD DRUG, OTHER ILLICIT GOODS
DOJ Announces Dark Web Marketplace Take Down
2 hours ago
THE LATEST

"The Justice Department on Thursday announced it had shuttered an illicit Internet marketplace for drugs, firearms and fake documents in what Attorney General Jeff Sessions said was the 'largest dark Web takedown in world history. Known as AlphaBay, the marketplace on the dark Web was where users whose identities were masked could engage in substantial buying and selling of illicit goods."

Source:
Mueller Expands Probe to Trump Business Transactions
3 hours ago
THE DETAILS

Special Counsel Robert Mueller's team is "is examining a broad range of transactions involving Trump’s businesses as well as those of his associates", including "Russian purchases of apartments in Trump buildings, Trump’s involvement in a controversial SoHo development with Russian associates, the 2013 Miss Universe pageant in Moscow and Trump’s sale of a Florida mansion to a Russian oligarch in 2008."

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