On September 18, 2013, the U.S. House Committee on Energy and Commerce held a hearing on "Regulation of Existing Chemicals and the Role of Pre-Emption under Sections 6 and 18 of the Toxic Substances Control Act." This was the third hearing in a series held by the Committee on the Toxic Substances Control Act (TSCA). It comes at a time when the Senate Committee on the Environment and Public Works (EPW) is also considering TSCA reform, including S. 1009, the "Chemical Security Improvement Act" (CSIA). Senate EPW Chair Barbara Boxer (D-CA) has indicated that preemption is an important issue and that she wishes to ensure that any TSCA reform protects state laws, including California's Proposition 65, the state's law regulating unsafe chemicals.
Bergeson & Campbell, P.C. (B&C®) has issued a detailed summary of the hearing, which is available online.
Improved utility of data, transparent supply chains, and transformative innovation were just some of the topics discussed by regulators, researchers, and industry at the 3rd Safer Consumer Products Summit: National Policy Outlook held in Washington, D.C. this week. Summit Chair Lynn L. Bergeson, Managing Partner, B&C, opened the main summit by noting the dramatic shift in environmental law from the regulation of discharges of chemical substances into the environment (and their subsequent cleanup) to a more proactive focus on the regulation of chemicals in products -- especially consumer products. She then walked the room through the current efforts at TSCA reform, most notably CSIA and gave her insider's analysis of what to expect from Capitol Hill regarding CSIA.
Keynote speaker Jim Jones, Assistant Administrator, Office of Chemical Safety and Pollution Prevention (OCSPP), highlighted the great strides the U.S. Environmental Protection Agency (EPA) has made in increasing access to data, especially with the debut last week of the ChemView searchable database and the positive impact programs such as Design for the Environment and the Green Chemistry Awards have in stimulating the safer chemical market.
In a luncheon keynote, sponsored by BRAG, the "father of green chemistry" Dr. Paul Anastas, Director of the Center for Green Chemistry and Green Engineering at Yale, exhorted the gathered companies, researchers, and non-governmental organizations (NGO) to set a goal of transformative innovation rather than incremental improvements: instead of just looking for safer dyes, develop fiber plants that grow in colors; rather than making a small improvement in paint and waterproofing formulations, mimic the action of waterproof plants to achieve the goal.
A panel discussion with safer product groups and brands, moderated by BRAG's Executive Director Kathleen M. Roberts, included spirited exchanges on the perceived value of "green" to consumers, the need for extreme transparency of ingredients throughout the supply chain, and the question of whether NGOs can engage in recognizing and encouraging good corporate actions in addition to their focus on thwarting the bad. Ms. Roberts made the point that BRAG is actively engaged in helping to level the regulatory playing field between petroleum-based products and their greener alternative biobased products.
On September 12, 2013, Representative Bill Pascrell (D-NJ) introduced H.R. 3084, the "Qualifying Renewable Chemical Production Tax Credit Act," to provide tax parity for the renewable chemical industry in the United States. Along with Representative Pascrell, the original co-sponsors of the bi-partisan bill are Representatives Steve Stockman (R-TX), Allyson Schwartz (D-PA), Linda Sanchez (D-CA), and Richard Neal (D-MA).
Essentially, the bill would extend the current production tax credit (PTC) for cellulosic biofuels to producers of renewable chemicals. It would provide a PTC of 15 cents per pound of eligible renewable content, but it caps the benefit at $500 million and a single producer may not receive more than $25 million in a tax year. A copy of the legislation is available online. Representative Pascrell has stated publicly that he hopes the legislation will help incentivize the U.S. production of renewable chemicals and help develop the industry here in the United States.
On September 18, 2013, the 9th Circuit Court of Appeals reversed a December 2011 district court ruling and held that California's Low Carbon Fuel Standard (LCFS) does not violate the Dormant Commerce Clause of the U.S. Constitution on its face. The district court had sided with groups from the oil and gas, ethanol, and trucking industries and found that the LCFS violated the Dormant Commerce Clause because the statute gave higher carbon intensity values to out-of-state, Midwest, ethanol, putting that fuel at a disadvantage in California. At the time of the 2011 decision, the district court had also issued a preliminary injunction preventing the California Air Resources Board (CARB) from enforcing the LCFS.
In its decision this week, the appeals court held that the LCFS does not violate the Dormant Commerce Clause on its face, and it remanded to the district court whether the statute violates the clause "in purpose or in practical effect." The appeals court also vacated the preliminary injunction.
It has been reported that the ethanol industry is looking at their legal options in light of the appeals court decision.
Specialty chemical company Elevance Renewable Sciences, Inc. announced this week the commercial availability of Inherent™ C18 Diacid, a mid-chain length, biobased diacid that will, as the company describes in its press release, enable "producers of polyamides and polyurethanes, lubricants and adhesives to significantly expand their portfolios with cost-competitive products that demonstrate performance not possible from products made with more common, shorter-chain diacids." A copy of the company's press release is available online.
On September 16, 2013, Cambridge, Massachusetts-based renewable chemicals company, Metabolix, announced the development of Mvera B5010, which is a compostable film grade resin to be used for global compostable bag and film markets. Mvera B5010 meets international industrial standards for compostability and will be featured during K 2013 in Düsseldorf, Germany, October 16-23, 2013. A copy of Metabolix's press release on the announcement is available online.
The U.S. Environmental Protection Agency (EPA) reportedly has completed its proposed rule setting the 2014 renewable volume obligations (RVO) for obligated parties under the federal Renewable Fuel Standard (RFS). The proposal is now being reviewed by the Office of Management and Budget before being published in the Federal Register, which will open the public comment period. By law, EPA is required to set the following year's RFS RVOs by November 30. The 2013 RVOs were not prepared in final until August of this year, which was likely due to EPA concerns about setting the volumes amidst legal, legislative, and regulatory challenges by obligated parties to the final 2011 and 2012 RVOs.
EPA included language in the final 2013 RFS rule indicating that it may reduce the overall RVOs in its upcoming 2014 RFS rulemaking. Just before EPA issued the 2013 final rule containing this language, leading trade groups representing the oil and gas industry, the American Petroleum Institute (API) and American Fuel & Petrochemical Manufacturers (AFPM), filed a joint waiver petition with EPA requesting that the Agency reduce the overall 2014 statutory RVOs to 9.7 percent of the U.S. transportation fuel supply due to what they argue are their blend wall concerns. The joint waiver petition is available online. This week, Valero Energy Corporation, the world's largest independent refiner, also sent in a petition requesting that EPA waive the 2014 RVOs. Valero cited the burdensome and high costs of Renewable Identification Numbers (RIN) needed for RFS compliance.
Several members of the biofuels industry have stated publicly that they believe there are several options that could, at least in part, address the impending so-called blend wall. The Renewable Fuels Association made this point in its letter to EPA urging the Agency to deny the waiver petition. RFA's letter is available online.
On September 6, 2013, EPA's Office of the Inspector General (IG) issued a report finding that the Agency does not meet the control standards for monitoring some of the new programs and activities designed to prevent and reduce instances of fraudulently generated RINs under the federal RFS. EPA's one-page report summary is available online and its 23-page full report is available online.
The EPA IG findings come at a vulnerable time for the RFS and its allies. Trade groups representing the oil and gas industry, among others, have called on EPA to modify the RFS in several ways, including to protect against RIN fraud. Those groups, as well as the National Biodiesel Board, worked with EPA to design a new plan to help protect against RIN fraud. EPA issued a proposed rule outlining the plan in February of this year. A copy of the proposed rule as published in the Federal Register is available online. The plan is expected to be completed soon.
The group of four House Energy and Commerce Committee Members tasked with examining ways to reform the federal RFS met this week for the first time since the August recess. The group was named by Committee Chair Fred Upton (R-MI) and includes Representatives John Shimkus (R-IL), Cory Gardner (R-CO), Lee Terry (R-NE), and Steve Scalise (R-LA).
Reportedly, the group is looking at potential proposals that could be released this fall. In general, the biofuels industry is working hard to advocate that the RFS is working as it was intended and the best course of action would be to leave the law in place as is to allow it to continue to drive investment in the industry. The next few weeks will be telling in terms of what, if any, proposals may be introduced or considered by the House of Representatives. There is no similar organized activity in the Senate. Senate Committee on the Environment and Public Works Chair Barbara Boxer (D-CA) has stated publicly, however, that she may hold a hearing on the RFS early this fall.
Congress returned from its August recess this week, and, as expected, the Republican leadership of the U.S. House of Representatives is looking toward passing legislation on the remaining nutrition portion of the Farm Bill, including $40 billion in cuts to food stamp programs over the next ten years. The bill could come up for a vote next week.
House Republican leaders, including House Committee on Agriculture Chair Frank Lucas (R-OK), have stated they do not wish to go ahead with a conference committee with the Senate to complete the next five-year Farm Bill until they pass the nutrition portion. In June, the House passed a "farm-only" Farm Bill, H.R. 2642, which left out funding for food stamps and other nutrition programs. A more comprehensive version of the Farm Bill containing $20 billion in cuts to nutrition programs was defeated in a previous vote mainly because several Democrats felt the cuts were too large, while several Republicans thought they did not go far enough.
Passage of a nutrition portion of the Farm Bill containing $40 billion in cuts may attract enough House Republicans to lead to a conference committee with the Senate to hammer out a final version of the next five-year Farm Bill, but it will not make those negotiations any faster or easier. In May, the Senate passed its version of the next Farm Bill, S. 954, the Agriculture Reform, Food and Jobs Act of 2013, which funds both farm programs and food stamps. S. 954 contains a strong energy title with nearly $900 million in mandatory funding and expanded eligibility for renewable chemicals. Senate Committee on Agriculture Chair Debbie Stabenow (D-MI), who is leading the Farm Bill effort in the Senate, has said that $40 billion in cuts is a "non-starter." In fact, she and other Democratic leaders in the Senate opposed the original $20 billion in cuts the House attempted to pass earlier this year. This disagreement will likely extend the Farm Bill conference committee negotiations beyond September 30, when the current version of the Farm Bill expires.
On Wednesday, September 11, 2013, the European Parliament voted 356-327 to cap conventional biofuels at six percent of the European Union's (EU) transportation fuel by 2020 due to food-versus-fuel concerns. It also voted to require that 2.5 percent of EU transportation fuel consist of advanced biofuels by 2020, and to target that fuel to contain a 7.5 percent ethanol blend. The legislation does not require that indirect land use change be taken into account until 2020. The proposal must now be approved by EU Member States.
This week, the National Advanced Biofuels Conference and Expo was held in Omaha, Nebraska. During the three-day conference, industry leaders presented on and discussed major issues facing the industry, from legal considerations to advancing the aviation biofuels industry, supply, and feedstock successes and challenges. During the conference, Michael McAdams, President of the Advanced Biofuels Association, and Joe Jobe, CEO of the National Biodiesel Board, discussed some of their current federal policy priorities and work. Both spoke about the importance of the federal RFS to the industry and stressed the need for industry to unite at this time when it is increasingly under attack.
McAdams addressed the work this year of the House Energy and Commerce Committee to examine and reform the RFS. He mentioned that Committee's two-day hearing this summer on the subject during which he testified on the importance of the policy. He stated his expectation that legislation to reform the RFS could be drafted and considered by the House of Representatives by mid-October. He urged everyone to contact their Members of Congress on behalf of the RFS, if their trade associations asked them to do so.
Jobe made similarly supportive statements of the RFS and the need for the industry to unite. In addition, he stated the importance to the biodiesel industry of not only the RFS, but of maintaining the biodiesel tax credit. He attributed both policies to the industry's recent substantial growth, and cited them as important to achieving the industry's new goal of making up 10 billion gallons of the fuel supply by 2022.
Also during the conference, on behalf of Agriculture Secretary Tom Vilsack, Rural Development Acting Under Secretary Doug O'Brien announced that the U.S. Department of Agriculture (USDA) is making payments to support the production of advanced biofuel. USDA is making nearly $15.5 million in payments to 188 producers through the Advanced Biofuel Payment Program. USDA remains focused on carrying out its mission, despite a time of significant budget uncertainty. This announcement is one part of the Department's efforts to strengthen the rural economy. The funding is being provided through USDA's Advanced Biofuel Payment Program, which was established in the 2008 Farm Bill. Under this program, payments are made to eligible producers based on the amount of advanced biofuels produced from renewable biomass, other than corn kernel starch. Examples of eligible feedstocks include but are not limited to: crop residue; animal, food, and yard waste; vegetable oil; and animal fat. Through the Advanced Biofuel Payment Program and other USDA programs, USDA is working to support the research, investment, and infrastructure necessary to build a strong biofuels industry that creates jobs and broadens the range of feedstocks used to produce renewable fuel. More than 290 producers in 47 states and territories have received $211 million in payments since the program's inception. It has supported the production of more than three billion gallons of advanced biofuel and the equivalent of more than 36 billion kilowatt hours of electric energy.
On August 28, 2013, the Solid Waste Association of North America (SWANA) and the National Solid Wastes Management Association (NSWMA) sent a letter to U.S. Environmental Protection Agency (EPA) Administrator Gina McCarthy urging EPA to (1) issue quickly a final rule clarifying how biogenic carbon emissions will be treated under Prevention of Significant Deterioration (PSD) and Title V permitting requirements and (2) determine that biogenic carbon emissions from municipal solid waste (MSW) should be categorically excluded from the new PSD and Title V greenhouse gas (GHG) reporting requirements. A copy of the letter is available online. In July, the U.S. Court of Appeals for the District of Columbia vacated EPA's rule temporarily exempting bioenergy and other biogenic sources of GHG emissions from the new GHG permitting requirements, which has created uncertainty for the industry going forward. BRAG's report on this decision is available online.
In their joint letter, SWANA and NSWMA argue that emissions from the biogenic portions of MSW should be permanently exempted from the new GHG reporting requirements in part based on EPA's recent calculation of the lifecycle GHG analysis of landfill gas as a renewable fuel feedstock. Under this analysis, EPA "assumed that the biogenic portions of MSW (which produce the biogas) pose no land use-related GHG emissions associated with its production and use as a fuel feedstock." In addition, the groups state subjecting the biogenic emissions to the new reporting requirements could deter renewable fuel production and progress on projects designed to promote the beneficial use of landfill gas and energy.
On August 1, 2013, over 100 groups sent a similar letter to EPA urging the Agency to find that bioenergy and other biogenic sources of GHG emissions are carbon neutral for purposes of new GHG permitting requirements under EPA's Tailoring Rule. More information on this letter is available online.
The U.S. Department of Agriculture (USDA) announced that it had purchased 7,118 short tons of refined beet sugar for $3.6 million and sold it to renewable fuel producer Front Range Energy for $900,000 (a loss of $2.7 million) under the Food, Conservation and Energy Act of 2008 (the 2008 Farm Bill) Feedstock Flexibility Program (FFP). This was the first time USDA had utilized the FFP. The 2008 Farm Bill directs USDA to keep sugar prices at or above certain levels, and authorizes USDA to either acquire sugar through forfeiture of sugar loans made by the USDA's Commodity Credit Corporation or to buy sugar and sell it to bioenergy producers until prices raise to those levels. A copy of the USDA press release on this announcement is available online.
Unilever announced this week its new partnership with the University of Liverpool for a three-year research project designed to develop renewable chemicals "from the surplus sugars, fats, oils and carbohydrates produced via commodity by-products and forestry wastes, creating a cent[er] of excellence in the identification of sustainably sourced ingredients that it is hoped will end up in the production of some of the world's most familiar brands." The company's press release on the partnership is available online.