By Lynn L. Bergeson
On June 28, 2019, 13 U.S. Senators signed a letter to President Donald J. Trump expressing concerns about media reports that USDA Secretary Sonny Purdue is attempting to influence EPA decisions on small refinery waivers under RFS. Similar to the letter submitted to Purdue himself by Senator Kennedy, the 13 Senators express opposition to Secretary Purdue’s involvement in the SRE waivers decision-making process. Also referencing the Clean Air Act and its statutory requirements, the letter urges President Trump to prohibit Secretary Purdue from influencing or interfering with decisions concerning SRE by EPA Administrator Andrew Wheeler. The view expressed in the letter is that “any decisions to further delay, reduce, or deny hardship relief to small refineries, or reallocate the obligations of small refineries to other refineries,” would be the result of Secretary Purdue’s impermissible interference. The letter notes that federal courts would likely view any of the outlined attempts in the same way.
By Lynn L. Bergeson
On May 22, 2019, Senator Ron Wyden (D-OR) introduced a bill (S. 1614) to amend the Clean Air Act (CAA) to modify the definition of “renewable biomass” under the Renewable Fuel Standard (RFS). The CAA currently prohibits the use of biomass from federal lands in the making of renewable fuels as defined by the RFS. The bill would allow the use of biomass from certain federal lands needing ecological restoration in the making of renewable fuels. The bill also is intended to make it financially feasible for private landowners to remove low-value brush that impacts wildlife habitats and poses fire risks. Under the bill, all mill residuals -- like sawdust and shavings -- can be used for biofuels and it requires biomass harvested from federal lands to be done in accordance with all federal laws, regulations, and land-use plans and designations.
By Lynn L. Bergeson
Under the Clean Air Act, the U.S. Environmental Protection Agency (EPA) is required to set renewable fuel percentage standards annually. On July 10, 2018, EPA announced a request for comments on a proposed rule to address “volume requirements for cellulosic biofuel, advanced biofuel, and total renewable fuel that are below the statutory volume targets.” The proposal also included the applicable volume of diesel from biomass for 2020. In response to EPA’s request, the Biotechnology Innovation Organization (BIO), a Biobased and Renewable Products Advocacy Group (BRAG®) member, submitted comments to EPA on August 17, 2018. BIO emphasized in its comments the vitality of the Renewable Fuel Standard (RFS). Arguing that the proposed rule promulgates a risk to the biofuels industry and rural economy, BIO urged EPA to resolve the issues that may be caused by raising the volumes of advanced and cellulosic biofuel. Among these issues, the undercut to these increases in volume by the issuance of small refinery exemptions would stop the reallocation of gallons to other obligated parties.
By Lauren M. Graham, Ph.D.
On October 4, 2017, EPA issued a NODA in the Federal Register to provide supplemental information and an opportunity for further public comment on potential reductions in the 2018 biomass-based diesel, advanced biofuel, and total renewable fuel volumes, and/or the 2019 biomass-based diesel volume under the RFS program. The NODA follows the Agency’s July 21, 2017, proposed rulemaking on the volume requirements and provides additional information on production, imports, and cost of renewable fuel, and several options for how EPA may consider such data in establishing the final volume requirements.
In the notice, EPA acknowledges its authority under the Clean Air Act to waive a portion of the biomass-based diesel standard if there is a significant renewable feedstock disruption or other market circumstance that would make the price of biomass-based diesel fuel increase significantly, and to make related reductions in the advanced biofuel and total renewable fuel volume requirements. EPA is seeking comments on whether it is appropriate to use this waiver authority in the final rule. Additionally, EPA invites comments on whether it is appropriate to consider possible impacts of the volumes of domestic production and imports on U.S. energy independence and security in setting the applicable standards under the RFS program, and on appropriate ways to determine the applicable volume requirements for 2018, and the biomass-based diesel volume requirement for 2019.
Comments are due October 19, 2017.
By Lauren M. Graham, Ph.D.
On August 31, 2017, the U.S. Environmental Protection Agency (EPA) announced that requirements for reformulated gasoline and low volatility gasoline would be waived through September 15, 2017, for Alabama, Florida, Georgia, Kentucky, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, Texas, Louisiana, and the District of Columbia. EPA exercised its emergency fuel waiver authority to help ensure an adequate supply of fuel throughout the South, Southeast, and the Mid-Atlantic in the wake of Hurricane Harvey. As required by law, EPA and the Department of Energy (DOE) evaluated the impacts of Hurricane Harvey on refineries in the Gulf Coast based on strict criteria provided in the Clean Air Act (CAA) and determined that granting a short-term waiver was consistent with the public interest. The CAA requires that waivers be limited as much as possible in terms of their geographic scope and duration. EPA and DOE continue to monitor the fuel supply situation and will act if it is determined that extreme and unusual supply circumstances exist in other areas.
By Lauren M. Graham, Ph.D.
On August 15, 2017, the U.S. Court of Appeals for the Tenth Circuit ruled two to one that the U.S. Environmental Protection Agency (EPA) exceeded its statutory authority under the Clean Air Act (CAA) when it denied Sinclair Oil Corporation’s request for a hardship exemption from the Renewable Fuel Standard (RFS) program. The statute requires that EPA grant exemptions on a case-by-case basis to small refiners that would suffer a “disproportionate economic hardship” in complying with the RFS program. According to the court ruling, EPA’s interpretation that there needed to be a threat to the refinery’s survival as an ongoing operation to be eligible for the exemption is outside the range of permissible interpretations of the statute and, therefore, inconsistent with Congress’s statutory mandate. To support its ruling, the court cited the U.S. Department of Energy’s (DOE) matrix analysis that lists three viability metrics that determine hardships, including reduced profitability, temporary negative events, and risk of closure. As a result of the ruling, EPA will have to reconsider Sinclair’s request for an exemption.
Justice Lucero respectfully dissented, stating that the majority decision did not consider EPA’s lengthy discussion, which demonstrates that the Agency considered all of the viability factors.
On March 13, 2017, the South Dakota Farmers Union announced that the National Farmers Union had passed a resolution calling for the U.S. Environmental Protection Agency (EPA) to open the market to higher blends of ethanol during its annual meeting in San Diego. The resolution, which was brought forward by the South Dakota Farmers Union delegation, promotes the use of higher blended fuels, such as E30, as a way to expand the retail fuels infrastructure and support the Renewable Fuel Standard (RFS).
In addition to passing the resolution, the National Farmers Union filed legal comments regarding EPA’s overreach in its interpretation of the Clean Air Act (CAA), which limits ethanol content to 15 percent. Doug Sombke, President of South Dakota Farmers Union, called on EPA and all government regulators to reverse statements and policies that unfairly limit the amount of ethanol in fuel and stated that both the state and national organization continue to seek greater market access for higher blended fuels.
On March 2, 2017, Congressmen Adrian Smith (R-NE) and Congressman Dave Loebsack (D-IA) reintroduced legislation to expand the current Reid Vapor Pressure (RVP) waiver to include E15 motor vehicle fuel. The Consumer and Fuel Retailer Choice Act aims to foster the development of a robust energy marketplace by offering the same regulatory relief that has been extended to E10. Under the Clean Air Act (CAA), the U.S. Environmental Protection Agency (EPA) is required to control the volatility of gasoline between June 1 and September 15 to limit vehicle emissions. Congress permitted a RVP waiver for E10 due to its reduced emissions. EPA, however, has continuously refused to extend the waiver to E15 despite its lower volatility compared to E10. The bipartisan legislation would remove the restriction on the sale of E15 during the summer months and allow the fuel to be sold year-round.
On September 14, 2015, the U.S. Environmental Protection Agency (EPA) published a Notice of Proposed Settlement Agreement; Request for Public Comment in the Federal Register. The notice is to settle lawsuits filed by Sinclair Wyoming Refining Company and Sinclair Casper Refining Company challenging EPA's denial of requests for extensions of small refinery temporary exemptions in August 2014. Under the Clean Air Act (CAA), small refineries are able to request an exemption of Renewable Fuel Standards (RFS) Program blending mandates that would result in significant economic harm. The settlement allows the refineries to submit a request for exemption and EPA has agreed to make a decision on the request within 90 days. Comments are due by October 14, 2015.
On June 2, 2015, federal appellate judges decided that EPA's methodology for evaluating small refineries (those with crude oil throughput averaging 75,000 barrels or less per day) for exemptions from the RFS program was fair. Hermes Consol. LLC v. EPA, No. 14-1016 (D.C. Cir. June 2, 2015). Under the Clean Air Act (CAA), EPA is allowed to exempt small refiners from the annual blending requirements if compliance would cause ''disproportionate economic hardship." There was a blanket exemption available for all small refineries in 2011 that expired in 2013. The case was brought by Hermes Consolidated, LLC, doing business as Wyoming Refining Company, a small refinery that applied for exemption from the 2013 renewable fuel blending requirements but was denied after EPA made mathematical errors while evaluating financial hardship. The court has ordered EPA to reconsider the petition from Hermes Consolidated, LLC, but has upheld EPA's overall methodology for conducting small refinery exception analyses.