The Biobased and Renewable Products Advocacy Group (BRAG) helps members develop and bring to market their innovative biobased and renewable chemical products through insightful policy and regulatory advocacy. BRAG is managed by B&C® Consortia Management, L.L.C., an affiliate of Bergeson & Campbell, P.C.

On March 20, 2014, Growth Energy and the Renewable Fuels Association (RFA), which represent the ethanol industry, and the American Fuel and Petrochemical Manufacturers (AFPM), along with the American Trucking Association and the Consumer Energy Alliance, filed petitions for writ of certiorari with the U.S. Supreme Court to make a final determination on the constitutionality of the California Low Carbon Fuel Standard (LCFS).


The groups are challenging the January 2014 decision of the U.S. Court of Appeals for the Ninth Circuit (the Ninth Circuit) to deny rehearing en banc in Rocky Mountain Farmer's Union v. Corey. On September 18, 2013, the Ninth Circuit issued its opinion in Rocky Mountain Farmer's Union v. Corey reversing a lower court opinion which found that the LCFS violated the dormant Commerce Clause of the U.S. Constitution by discriminating against ethanol produced outside of California. The LCFS assigns higher carbon intensity values to ethanol produced in the Midwest than in California. The press releases of Growth Energy and RFA (joint) and AFPM are available here and here.


One of the goals of the LCFS is to reduce the carbon content of transportation fuel by ten percent by 2020. It is significant to the biofuels industry, especially since several other states are considering similar programs and look to California's LCFS as an example.
 


 

U.S. cellulosic biofuels producer, KiOR, filed its annual report with the Securities and Exchange Commission (SEC) this week. In the report, the company expresses concerns about sufficient funding to continue operations moving forward. Although KiOR has received a conditional funding commitment of up to $25 million from its founder Vinod Khosla, receipt of the funding depends on certain production milestones that may not be met. In December 2013, KiOR reported a $347.5 million net loss, and in January 2014, the company announced that it would temporarily idle its Columbus, Mississippi, plant while it makes plant improvements. KiOR announced this week that it would idle the plant indefinitely. This development is not good news for the biofuels industry, since EPA has largely relied upon KiOR's production estimates to set the annual cellulosic renewable volume obligations for the federal Renewable Fuel Standard.


 

On March 6, 2014, South Dakota Governor Dennis Daugaard (R) announced that the state will begin incorporating E15 fuel into its state fleet during a test period over the next six months. Currently, E10 is available and used in the state's flex-fuel and other vehicles, but the Governor wants to encourage the greater use of ethanol in his state. Ethanol is a $3.8 billion industry in South Dakota. Greater use of E15 is one potential solution to the E10 ethanol "blend wall." The U.S. Environmental Protection Agency has proposed reducing the 2014 renewable volume obligations for corn-starch ethanol due to blend wall concerns. A copy of the press release on the announcement released by Governor Daugaard's office is available online.


 

On February 25, 2014, EPA sent its final rule to "Establish a Voluntary Quality Assurance Program for Verifying the Validity of Renewable Identification Numbers Under the RFS2 Program" to the U.S. Office of Management and Budget (OMB) for final review. EPA is expected to take action to release the final rule as soon as OMB completes its review.


As proposed, the rule would be retroactive to January 2013. It is the result of efforts to help restore investor confidence in the Renewable Identification Number (RIN) market and address the argument of some Renewable Fuel Standard (RFS) opponents that RIN fraud indicates a flaw in the RFS policy. Since 2010, there have been five major cases in which millions in fake biodiesel RIN credits have been generated. Under the current system, refiners (not renewable fuel producers) who purchase the credits to meet their annual RFS requirements are responsible for replacing the fraudulent credits and are vulnerable to steep penalties for failure to do so.


Under EPA's proposed RFS Quality Assurance Program (QAP), a voluntary third party quality assurance program would be established that could be used to verify that RINs have been validly generated. The proposal would provide a recognized means for independent third parties to audit the production of renewable fuel and the generation of RINs. It would include among other provisions: minimum requirements for QAPs, including such things as verification of type of feedstocks, verification that volumes produced are consistent with amount of feedstocks processed, and verification that RINs generated are appropriately categorized and match the volumes produced; qualifications for independent third-party auditors; requirements for audits of renewable fuel production facilities, including minimum frequency, site visits, review of records, and reporting; and, conditions under which a regulated party would have an affirmative defense against liability for civil violations for transferring or using invalid RINs. In addition, it would provide two options that would be available for the verification of RINs through a QAP.


Generally, the refining and biodiesel industries are supportive of the proposal. The ethanol industry is generally concerned that it would create unnecessary financial burdens on its producers. Given the market, the proposed voluntary QAP has reportedly already become almost a requirement for all renewable fuel producers, even though the fraudulent cases all involve only biodiesel.
 


 

The Director of the U.S. Environmental Protection Agency's (EPA) Office of Transportation and Air Quality, Christopher Grundler, made public comments recently stating that he expects EPA to issue the final rule setting the 2014 Renewable Fuel Standard (RFS) volumes by midnight on June 20, 2014. The final rule is much anticipated among industry stakeholders. The biofuels industry generally has urged EPA to revisit the proposed reductions to the advanced and corn ethanol 2014 RFS volumes, while RFS opponents, including generally the oil and gas and livestock industries, have been supportive of EPA's proposed 2014 RFS reductions. The Biobased and Renewable Products Advocacy Group (BRAG™) recently reported on the comments EPA has received on its proposed 2014 RFS rule. A copy of that report is available online.


EPA Administrator Gina McCarthy is expected to discuss the upcoming RFS rule during a visit to North Dakota on February 28, 2014.
 


 

On February 20, 2014, the National Highway Traffic Safety Administration's (NHTSA) proposed rule on "Alternative Fuel Vehicle Badging, Fuel Compartment Labels and Consumer Information on Alternative Fuel Usage" was published in the Federal Register. Comments are due to NHTSA by April 21, 2014. A copy of the proposed rule is available online.


The proposed rule would require badges, labels, and owner's manual information for new passenger cars, low speed vehicles (LSV), and light-duty trucks rated at not more than 8,500 pounds gross vehicle weight in order to increase consumer awareness regarding the use and benefits of alternative fuels. It would require manufacturers to identify each vehicle capable of running on an alternative fuel by means of a permanent and prominent display affixed to the exterior of the vehicle; add proposed text describing the capabilities and benefits of using alternative fuels to the owners' manuals provided for alternative fuel vehicles; and identify each vehicle that is capable of running on an alternative fuel by means of a label in the fuel filler compartment.


NHTSA reportedly believes the rule will help increase the use of alternative fuels in light-duty vehicles, while helping to decrease harmful greenhouse gas emissions as directed under the Energy Independence and Security Act of 2007 (EISA). These goals are also consistent with the intent of the federal RFS, which was enhanced under EISA. The RFS is designed to encourage the increased production and use of renewable fuels to 36 billion gallons by 2022.
 


 

The Department of Energy's (DOE) Bioenergy Technologies Office will host the second of two workshops on algae biofuels strategy on March 26-27, 2014, in Charleston, South Carolina. A copy of the agenda is available online.


The workshop will focus on the research and development still needed to achieve affordable, scalable, and sustainable algae-based biofuels. It will cover topics including barriers to commercialization for algae biofuels and appropriate metrics for success. It comes five years after DOE organized the National Algal Biofuels Technology Roadmap workshop. The workshop is intended to help DOE in its strategic development, evaluating the National Algal Biofuels Technology Roadmap, and planning a breakout session at the Office's annual Bioenergy Conference in 2014.


Participants may register online.
 


 

On February 11, 2014, Representative Dave Loebsack (D-IA) introduced H.R. 4051, the Renewable Fuel Utilization, Expansion, and Leadership (Re-FUEL) Act. The bill currently has no co-sponsors. The bill is designed to help fuel retailers with investments in renewable and alternative fuel infrastructure to provide consumers with the increased ability to choose alternative fuels at the pump. It would create a competitive grant program through the U.S. Department of Agriculture (USDA) to invest in renewable and alternative fuel infrastructure. Grants would be awarded to develop new or to retrofit existing infrastructure, including pumps for biofuels and hydrogen, tanks, piping, and electric vehicle chargers. Applicants would be required to provide a 30 percent non-federal match and the maximum grant to each entity per year would be $100,000. A copy of the bill is available online.


Representative Loebsack is a vocal supporter of the federal Renewable Fuel Standard (RFS) and has joined some of his colleagues to urge EPA to reconsider the Agency's current proposal to reduce the volumes of corn-starch ethanol and advanced biofuels under the law in 2014. Expanding the available distribution infrastructure as proposed in H.R. 4051 would help increase the availability and use of fuels with higher ethanol blends, including E85. This increased availability would help address the blend wall concerns cited as the driving factor for the proposed RFS volume reductions.
 


 

On February 13, 2014, Senators Maria Cantwell (D-WA) and Chuck Grassley (R-IA) introduced S. 2021, a bill to extend and reform the $1 per-gallon biodiesel tax credit that expired on December 31, 2013. The bill would extend this credit for three years through 2017. It would provide a $1 per-gallon tax credit for the production of biodiesel, renewable diesel, and aviation jet fuel that complies with fuel standards and the Clean Air Act. The bill would modify the definition of biodiesel to encourage production from any biomass-based feedstock, or recycled oils and fats. It would increase the credit to $1.10 per-gallon for the first 15 million gallons of biodiesel produced by small producers with an annual production capacity of less than 60 million gallons. In addition, the bill would restrict the credit to fuel producers to ensure the credit goes to domestic biodiesel production and to prevent eligibility of fuel blenders that could potentially add a very small amount of biodiesel to petroleum diesel (a practice known as "splash and dash") to qualify.


This bill would likely be added to a larger tax extender package that new Senate Committee on Finance Chair Ron Wyden (D-OR) has said he is interested in moving through the Committee in the near future. It would be significant for the biodiesel industry, which produced .7 billion gallons more in 2013 when the biodiesel tax credit was available than in 2012 when Congress let the credit expire.
 


 

President Obama is expected to sign H.R. 2642, the Agriculture Act of 2014 (the new five-year Farm Bill), into law on Friday at Michigan State University in East Lansing, Michigan. He is scheduled to speak there about the importance of the legislation.


The Farm Bill is critically significant to the biofuels and renewable chemicals and products industries because the new Farm Bill continues and expands on the majority of the energy programs covered under the 2008 Farm Bill and provides $881 million in mandatory funding to carry them out. For instance, the new Farm Bill continues the Biobased Markets and Biorefinery Assistance programs, as well as the Biomass Crop Assistance Program, which helps encourage and facilitate the growth of purpose grown energy crops to be used for energy production. It modifies the existing Biorefinery Assistance Program to create the Biorefinery, Renewable Chemical and Biobased Product Manufacturing Assistance Program and extend funding eligibility to producers of renewable chemicals and biobased products. The mandatory funding under this program and expanded eligibility marks a big victory for the biofuels and renewable chemicals and products industries.


The U.S. House of Representatives approved H.R. 2642 by a bi-partisan vote of 251-166 on January 29, 2014. The Senate followed suit on February 4, 2014, by a bi-partisan vote of 68-32.
 


 
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