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By Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

On January 27, 2021, U.S. President Biden signed an “Executive Order on Tackling the Climate Crisis at Home and Abroad,” which established a National Climate Task Force (Task Force) and puts the climate crisis at the forefront of U.S. domestic and foreign policy. Highlighting the urgency in addressing the climate crisis, this EO requires short-term global reductions of greenhouse gas (GHG) emissions and net-zero emissions by 2050 or before. Under the EO, the United States has rejoined the Paris Agreement and will begin implementing its three overarching goals:

  1. A safe global temperature;
     
  2. Increased resilience; and
     
  3. Financial goals aligned with a pathway toward low GHG emissions and climate-resilient development.

The EO also includes a provision (Section 216(b)(i)) stating that the Secretary of Agriculture must initiate efforts in the first 60 days, to obtain input from Tribes, farmers, forest owners, conservation groups, and other stakeholders on how to maximize the use of different U.S. Department of Agriculture (USDA) programs and those of other authorities. Input on how to encourage the voluntary adoption of climate-smart agricultural and forestry practices will also be welcome. The aim of this provision is to achieve additional measurable and verifiable carbon reductions and sequestration that source sustainable bioproducts and biofuels. The input received must be submitted to the Task Force for review within 90 days of the date of the EO, including recommendations for an agricultural and forestry climate strategy. This EO may play a key role for the biobased products and biofuels industry.


 

By   Lynn L. Bergeson 

Dan Utech, Incoming Chief of Staff for EPA, announced to EPA on January 21, 2021, that until Michael Regan, Secretary of the North Carolina Department of Environmental Quality, is confirmed as EPA Administrator, Jane Nishida will serve as Acting Administrator. According to Utech, EPA will be guided by science as it moves to achieve these goals and address other threats to public health and the environment.

Utech states that Biden also signed an Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government. In addition to providing a framework for advancing equity, it revokes Executive Order 13950, “Combating Race and Sex Stereotyping.”

Utech’s announcement includes the following updated list of current and acting leaders, as well as a list of the incoming appointees who onboarded this week.

Current and Acting Leadership

  • Acting Administrator: Jane Nishida
  • Office of the Chief Financial Officer (OCFO): David Bloom
  • Office of Air and Radiation (OAR): Joseph Goffman
  • Office of Water (OW): Radhika Fox
  • Office of Land and Emergency Management (OLEM): Barry Breen
  • Office of Chemical Safety and Pollution Prevention (OCSPP): Michal Ilana Freedhoff (as of January 25, 2021)
  • Office of Research and Development (ORD): Jennifer Orme-Zavaleta
  • Office of General Counsel (OGC): Melissa Hoffer
  • Office of Enforcement and Compliance Assurance (OECA): Larry Starfield
  • Office of International and Tribal Affairs (OITA): Mark Kasman
  • Office of Mission Support (OMS): Donna Vizian
  • Office of Policy (OP): Victoria Arroyo
  • Office of Congressional and Intergovernmental Relations (OCIR): Robin Richardson
  • Office of Public Engagement and Environmental Education (OPEEE): Rosemary Enobakhare
  • Office of Public Affairs (OPA): Lindsay Hamilton
  • Region 1: Deb Szaro
  • Region 2: Walter Mugdan
  • Region 3: Diana Esher
  • Region 4: John Blevins
  • Region 5: Cheryl Newton
  • Region 6: David Gray
  • Region 7: Ed Chu
  • Region 8: Deb Thomas
  • Region 9: Deb Jordan
  • Region 10: Michelle Pirzadeh

Members of the incoming EPA leadership team who onboarded this week:

  • Radha Adhar, Deputy Associate Administrator for Congressional Affairs;
  • Victoria Arroyo, Associate Administrator for Policy;
  • Tomás Elias Carbonell, Deputy Assistant Administrator for Stationary Sources, OAR;
  • Alison Cassady, Deputy Chief of Staff for Policy;
  • Dimple Chaudhary, Deputy General Counsel for Nationwide Resource Protection Programs;
  • Rosemary Enobakhare, Associate Administrator for Public Engagement and Environmental Education;
  • Philip Fine, Principal Deputy Associate Administrator for Policy;
  • Radhika Fox, Principal Deputy Assistant Administrator, OW;
  • Michal Ilana Freedhoff, Principal Deputy Assistant Administrator for Chemical Safety and Pollution Prevention;
  • Joseph Goffman, Principal Deputy Assistant Administrator, OAR;
  • Lindsay Hamilton, Associate Administrator for Public Affairs;
  • Sinceré Harris, White House Liaison;
  • Melissa Hoffer, Principal Deputy General Counsel;
  • Casey Katims, Deputy Associate Administrator for Intergovernmental Affairs; and
  • John Lucey, Special Assistant to the Administrator.
     

 

By  Lynn L. Bergeson 

EPA has posted a Compliance Advisory entitled “Applicability of the Toxic Substances Control Act to Chemicals made from Petroleum and Renewable Sources Used as Fuels and Fuel Additives and Distillates.” The Compliance Advisory states that EPA is reaffirming that chemical substances used as fuels, fuel additives, and distillates made from either petroleum or renewable sources are subject to TSCA. Anyone who plans to manufacture (including import) a chemical made from petroleum or renewable sources must comply with the statutory and regulatory new chemical requirements under TSCA Section 5. According to the Compliance Advisory, EPA has received stakeholder inquiries “as to whether fuel and fuel additives made from renewable sources (such as renewable naphtha) are subject to the TSCA new chemicals requirements under section 5.” EPA states that it is issuing the Compliance Advisory “to affirm that fuel and fuel additives either made from petroleum or renewable sources are subject to TSCA and have been subject to its requirements since 1976.”

According to the Compliance Advisory, there are about 142 “naphthas” and 178 “distillates” (that compositionally can qualify as naphthas) currently on the TSCA Inventory, and they are considered Unknown, Variable composition, Complex, or Biological (UVCB) substances. Any substance that is not on the TSCA Inventory is a new chemical under TSCA Section 5(a)(1)(A). Prior to manufacture (including import) of a new chemical for commercial use, a premanufacture notice (PMN) must be filed with EPA under TSCA Section 5. The Compliance Advisory includes several questions and answers (Q&A), including:

Can you manufacture or import a chemical substance made from a renewable source if it is not listed on the TSCA Inventory?

No. Anyone who intends to manufacture (including import) a new chemical substance that is subject to TSCA for a non-exempt commercial purpose is required to submit a PMN at least 90 days prior to the manufacture of the chemical. Manufacturers (importers) are in violation of TSCA if they fail to comply or are late in complying with TSCA notice requirements. If you are required to submit a PMN, failure to do so is a violation of TSCA Section 15 and you may be subject to penalties. PMN submissions must include all available data, pursuant to 40 CFR 720.45 and 720.50. TSCA requires EPA to review the notice and make a determination; and, if appropriate, regulate the proposed activity.

EPA’s “compliance advisory” is disappointing. It signals this EPA is disinclined to promote renewable petroleum cuts and essentially (and emphatically) reaffirms what we believe to be EPA’s inflexible and unimaginative stance on “source” being determinative in petroleum cut UVCBs. This position, as we have noted in a variety of regulatory contexts, is a substantial disincentive to commercializing renewable petroleum cuts. EPA’s view is especially problematic when a refinery might wish to use a combination of petroleum and renewable feedstocks to make a single naphtha (or other distillate) cut.

For example, to avail itself of the equivalence determination, a company would have to submit a PMN for the renewable equivalent of a petroleum cut, sign the almost certain resultant consent order (EPA will undoubtedly identify aquatic toxicity concerns and may also identify health concerns), commence manufacture, file a Notice of Commencement of Manufacture or Import (NOC), and then request an equivalency determination. If EPA denies the equivalency determination, any downstream processor or user will have to either segregate the renewable products from the petroleum products so that the downstream entity can maintain records of compliance with the consent order or treat both the renewable and petroleum products as being subject to the order. Neither option is commercially feasible or sustainable.

This sequence of events illustrates why commercial entities are disinclined to avail themselves of renewable sources in the distillate space. EPA’s compliance advisory is an unexpected and, to many, unwanted parting gift from the Trump Administration. The Biden Administration may wish to revisit the wisdom and prudence of this inflexible, antiquated, and inequitable view.


 

By Lynn L. Bergeson

On November 18, 2020, U.S. Representatives Cheri Bustos (D-IL) and Jim Hagedorn (R-MN) introduced a bipartisan, bicameral legislation that aims to lower greenhouse gas (GHG) emissions and encourage low-carbon fuel production. Titled “The Streamlining Advanced Biofuels Registration Act,” this bill would eliminate existing barriers for biofuels plants to increase production of cellulosic biomass into renewable fuels. Representative Bustos criticized the lack of timely response from the U.S. Environmental Protection Agency (EPA), adding that through this bill, “we can encourage the use of cellulosic biomass in low-carbon, renewable fuel production and continue to create cleaner, more environmentally-friendly fuels.” The legislation would ensure that EPA acts on outstanding applications under the Renewable Fuel Standard (RFS) and compel EPA to accept applications if the fuel could participate in at least one state’s clean transportation program. Biofuels industry stakeholders have demonstrated support for the bill.


 

By Lynn L. Bergeson

On October 20, 2020, Senator Jeff Merkley (D-OR) and Representative Mike Levin (D-CA) introduced in the U.S. Senate and the U.S. House of Representatives the Zero-Emission Vehicles At of 2020 (the Act). The Act would amend Part A of Title II of the Clean Air Act (CAA) to create a federal national zero-emission vehicle (ZEV) standard and address climate change by ending U.S. sales of new gasoline-powered vehicles in 2035. Senator Merkley and Representative Levin’s standard aims to boost the market for battery electric vehicles and hydrogen fuel cell vehicles. Sponsored by four other Senators and an additional 15 Representatives, the ZEV standard has also been criticized by conservatives and biofuels industry stakeholders. Senator Chuck Grassley (R-IA) stated that Iowans should not “allow coastal state lawmakers to dictate to Middle America how to live [their] lives or take away the freedom to choose what kind of car to buy.”


 

By Lynn L. Bergeson

On September 23, 2020, the U.S. House of Representatives agreed by a record vote of 229-187 to the passing of a bill titled “Clean Economy Jobs and Innovation Act.” The bill aims to increase energy efficiency and renewable energy to address climate change. The Clean Economy Jobs and Innovation Act creates R&D programs to reduce fossil fuel production through various energy sources. It also incentivizes innovation through grant programs in energy efficiency, clean transportation, grid modernization, and workforce development.


 

By Lynn L. Bergeson 

On August 4, 2020, U.S. Senators Joni Ernst (R-IA) and Chuck Grassley (R-IA) voted against Mark Menezes, who is nominated to become Deputy Secretary of Energy. In a statement, both Senators said that “[g]iven the uncertainty with the ‘gap year’ small refinery waivers, the wasted time and resources to score the waivers again, the lack of transparency in the entire process, and most importantly, the toll this has taken on Iowa’s farmers and biofuel producers, we could not in good faith support Mr. Menezes at this time.” The two Senators are pushing the U.S. Department of Energy (DOE) for increased transparency and certainty for Iowa’s farmers and producers, asking for information on DOE’s scoring of small refinery waiver petitions. They are also requesting information on when the score recommendation was transmitted back to the U.S. Environmental Protection Agency (EPA). According to the statement, concerns continue to arise as DOE reviews petitions that have already been reviewed, wasting valuable time and resources to score the petitions again. A letter by the two formerly mentioned Senators has been submitted to Mr. Menezes further expressing their constituents’ concerns. The full text of the letter can be accessed here.


 

By Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

On July 23, 2020, the National Defense Authorization Act (NDAA) was passed by the U.S. Senate; it includes the bipartisan Sustainable Chemistry Research and Development Act of 2019, led by U.S. Senators Chris Coons (D-DE) and co-sponsored by Senators Susan Collins (R-ME), Amy Klobuchar (D-MN), and Shelley Moore Capito (R-WV). Introduced to the Senate in December 2019, the Sustainable Chemistry Research and Development Act of 2019 establishes an interagency working group (IWG) led by the Office of Science and Technology Policy to coordinate federal programs and activities in support of sustainable chemistry. The IWG will develop a roadmap for sustainable chemistry with a framework of attributes characterizing sustainable chemistry, assess the state of sustainable chemistry in the United States, and identify methods by which federal agencies can incentivize sustainable chemistry activities, challenges to sustainable chemistry progress, and opportunities for expanding federal sustainable chemistry efforts. Senator Coons celebrated the victory by stating that this “is an exciting opportunity to maintain our scientific leadership and ensure the sustainability of our chemical enterprise for years to come.”


 

By Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

This June, the House Select Committee on Climate Crisis released a report titled “Solving the Climate Crisis: The Congressional Action Plan for a Clean Energy Economy and a Healthy, Resilient, and Just America.” Providing a road map for Congress to follow, the action plan has three main goals:

  • Reaching 100 percent clean, net zero emissions economy-wide in the U.S. by 2050;
     
  • Establishing ambitious interim targets to assess progress and reduce pollution in environmental justice communities; and
     
  • Achieving net-negative emissions during the second half of the century.

The action plan consists of a comprehensive set of policy recommendations for Congressional action aggressively to reduce carbon pollution as quickly as possible while making communities more resilient to the impacts of climate change and building a clean energy economy. Successfully implemented, the Select Committee’s action plan would at minimum:

  • Reach net-zero carbon dioxide emissions before 2050;
  • Reduce net U.S. greenhouse gas (GHG) emissions by at least 37 percent below 2010 levels in 2030 and 88 percent below 2010 levels in 2050;
  • Avoid 62,000 premature deaths annually by 2050; and
  • Provide almost $8 trillion in cumulative climate and health benefits through 2050.

The Climate Crisis Action Plan calls on Congress not only to grow the U.S. economy and put Americans to work in clean energy jobs, but also to protect family health, protect U.S. land and waters for the next generation, and ensure that communities and farmers can withstand climate change impacts. The full report is available here.


 

By Lynn L. Bergeson

On May 21, 2020, U.S. Senators Amy Klobuchar (D-MN) and Chuck Grassley (R-IA) introduced a bill directing the U.S. Department of Agriculture (USDA) Secretary to establish a renewable feedstock reimbursement program. Aiming to support biofuel producers that have been negatively affected by the COVID-19 pandemic, this bill can be cited as the Renewable Fuel Feedstock Reimbursement Act of 2020. Under the reimbursement program, biofuel producers will be reimbursed for their feedstock purchases from January 1, 2020, through March 31, 2020, through the Commodity Credit Corporation (CCC). Eligible parties will consist of those that produce renewable fuel used as transportation fuel and eligible feedstocks mean renewable biomass intended for production of the aforementioned renewable fuel. Furthermore, to be eligible to receive reimbursements, eligible entities must enter into an agreement with the USDA Secretary.

The two U.S. Senators initially introduced this idea in April 2020 as an amendment to the Coronavirus Aid, Relief, and Economic Stabilization (CARES) Act, which assists the biofuels industry sector. Assistance, however, was not included in the CARES Act package. Senators Klobuchar and Grassley, with industry support, now hope that this second attempt in support of the biofuels industry follows through.


 
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