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 »
"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."
"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."
"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."
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."