In Warning Shot, API Reminds EPA it Can’t Raise Biodiesel RFS Target 9/26/2014

2014-09-26 11:08:27 EDT

***Update: In Warning Shot, API Reminds EPA it Can’t Raise Biodiesel RFS Target

 

(Adds EPA response.)

 

In recent comments, administration officials say that the final 2014 renewable fuel standard (RFS2) targets will be raised from those that were proposed.

However, EPA lacks the authority to increase the biomass-based diesel target for 2014, the American Petroleum Institute (API) warned today in a letter to EPA Administrator Gina McCarthy.

 

EPA proposed nearly across-the-board cuts in its 2014 RFS proposal. For biomass- based diesel, EPA proposed maintaining the 1.28 billion gal target at the same level where it was finalized as part of the final 2013 RFS. Biodiesel advocates view that as a reduction, since the industry produced more than 1.7 billion gal in 2013.

 

Section 211(o)(2)(B)(ii) of the Clean Air Act sets a 1 billion gallon floor for biomass-based diesel after 2012 and requires EPA to provide a 14-month lead time when modifying the mandate, API Group Director for Downstream & Industry Operations Bob Greco wrote today to McCarthy.

 

“EPA was required to have finalized any increase to the 2014 biomass-based diesel mandate by Oct. 31, 2012. Because this deadline has passed by almost two years and the required six-factor analysis [based on environmental impact, expected production, etc.] was not undertaken in the proposed 2014 RFS, the Clean Air Act prohibits EPA from increasing the biomass-based diesel requirement from the 2013 biomass-based diesel standard of 1.28 billion gallons,” Greco wrote.

 

“In other words, any higher applicable volume for biomass-based diesel in 2014…

would be a clear violation of EPA’s statutory authority,” Greco noted. “A court will likely find any increase in the biomass-based diesel standard to be both statutorily barred and a breach of good government, especially when EPA itself admitted that it lacked the legal authority to increase the mandate by clearly acknowledging in the 2014 RFS proposal that ‘the statute requires that we finalize these biomass-based diesel volume requirements no later than 14 months before the first year for which that volume requirement will apply.'”

 

In response, EPA sent a statement to OPIS, noting the agency “will review the concerns raised in the letter API sent to Administrator McCarthy and respond appropriately.”

 

On Aug. 22, EPA sent the final RFS targets to the Office of Management and Budget (OMB) for interagency review. OMB has up to 90 days to review the final RFS rule. In the past two weeks, OMB has been meeting with various RFS-related stakeholders for their final round of lobbying on the issue.

 

-Rachel Gantz, rgantz@opisnet.com

 

 

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