On February 9, 2015, a bi-partisan group of 32 Senators led by
Senators Heidi Heitkamp (D-ND), Roy Blunt (R-MO), Patty Murray (D-WA), and
Chuck Grassley (R-IA) sent a letter
to U.S. Environmental Protection Agency (EPA) Administrator Gina McCarthy
regarding 2014 and future biodiesel volume requirements under the federal Renewable
Fuel Standard (RFS). In their letter, the Senators urge EPA to get the
biodiesel renewable volume requirements (RVOs) under the RFS back on schedule.
To this end, the Senators request that EPA set the 2014 biodiesel RVOs at
actual production volumes and move to set the 2015 and 2016 RVOs as soon as
possible. The 2016
RVOs should have been set by December of 2014 under the RFS.
On February 10, 2015, Senator Barbara Boxer (D-CA), Ranking Member
of the U.S. Senate Committee on Environment and Public Works, sent a similar letter
to EPA Administrator McCarthy.
These new letters come at a time when EPA is being criticized
generally for delaying regulatory action on the RFS, and specifically for its
recent approval of the importation of biodiesel made with soybeans from
Argentinian biofuel producers as qualifying for credit under the RFS. See the Biobased
and Renewable Products Advocacy Group's (BRAG®) coverage of this
most recent issue.
Last week, U.S. Department of Agriculture (USDA) Secretary Tom Vilsack spoke at a biofuel industry conference and addressed concerns raised over the likelihood that the final 2014 Renewable Fuel Standard (RFS) rule would include renewable volume obligations (RVO) for total renewable fuel at levels below those included for 2014 under the statute. Generally, total renewable RVOs are comprised of corn-starch ethanol.
Secretary Vilsack projected a positive spin on this likelihood, reportedly telling the audience that the Obama Administration remains committed to working with the biofuels industry to get to 15 billion gallons of ethanol. The RFS would require the use of 15 billion gallons of total renewable fuel by 2022. It is generally predicted that the final 2014 RFS rule will raise the RVO levels for total renewable fuels over those contained in the proposed rule issued last year. RFS supporters in the biofuels industry, however, particularly those representing the corn ethanol industry, remain concerned that the reasoning behind final total renewable fuel RVOs will still be based partly on blend wall concerns argued by obligated parties and opponents to the law.
On April 8, 2014, the Senate Committee on Agriculture, Nutrition and Forestry held a hearing on "Advanced Biofuels: Creating Jobs and Lower Prices at the Pump." The following witnesses testified at the hearing: Mr. Richard Childress, CEO, Richard Childress Racing, LLC; Mr. Jan Koninckx, Global Business Director for Biorefineries, DuPont Industrial Biosciences; Mr. Brooke Coleman, Executive Director, Advanced Ethanol Council; Dr. Sumesh Arora, Vice President, Innovate Mississippi, Director of Strategic Biomass Solutions; and, Ms. Nancy Young, Vice President, Environmental Affairs, Airlines for America. More information about the hearing is available online.
Senate Agriculture Committee Chair Debbie Stabenow (D-MI) held the hearing to highlight positive developments in the advanced biofuels space. Stabenow's home state of Michigan has a heavy biobased manufacturing sector and the Senator has been working hard to garner federal support for the industry. She is opposed to the U.S. Environmental Protection Agency's (EPA) proposed 2014 Renewable Fuel Standard (RFS) rule that would lower the 2014 renewable volume obligations (RVO) for corn ethanol, cellulosic biofuels, and advanced biofuels. At the hearing this week, witnesses warned that lowering the 2014 RVOs for corn ethanol and advanced biofuels will chill investment in U.S. biofuels.
EPA Administrator Gina McCarthy made a recent public statement suggesting that the 2014 RFS rule is expected to be finalized by June.
Monroe Energy, LLC (Monroe), a refinery and subsidiary of Delta Airlines, has filed another lawsuit challenging EPA's implementation of the federal Renewable Fuel Standard (RFS). In this latest suit, Monroe argues that blenders, not refiners and importers, of fuel should be deemed the obligated parties under the RFS. Monroe does not have blending capacity like some larger refiners.
Monroe asserts that the fact that EPA in its proposed rule to set the 2014 RFS renewable volume obligations (RVO) now proposes to consider the practical ability to blend the amounts of renewable fuels under the law warrants a reconsideration of the obligated parties defined under the final RFS rule issued in 2010. Because Monroe lacks blending capacity, the Company argues that it is forced to spend millions of dollars to comply with its requirements as an obligated party under the law.
EPA received approximately 16,000 comments by the January 28, 2014, deadline for the public to weigh in on the EPA's proposed 2014 Renewable Fuel Standard (RFS) renewable volume obligations (RVO). Industry organizations from all interested stakeholders made submissions.
For the first time, EPA proposed to reduce the statutory RFS RVOs for corn ethanol and advanced biofuels, in addition to cellulosic biofuels. Under the proposal, EPA would use "a combination of" both of its RFS waiver authorities to achieve these reductions. EPA justified its proposed reductions by concentrating on whether there would be sufficient supply of all of the renewable fuels. EPA broadly defined supply to include other factors such as the ability to consume the fuels and distribution capacity.
Representatives of the biofuels industry, including the American Coalition for Ethanol, Advanced Biofuels Association, Biotechnology Industry Organization, Growth Energy, and the Renewable Fuels Association, urged EPA to reconsider the proposed RVOs and warned of negative consequences on biofuels production if it did not. Many comments from the biofuels industry argued that EPA did not have the authority to reduce advanced and total renewable volumes in 2014 as it proposed.
The American Petroleum Institute and American Fuel and Petrochemical Manufacturers filed joint comments in support of EPA's proposal. Among other things, these groups argue that EPA does have the authority to make its proposed reductions to the 2014 RVOs. They warn of significant supply and economic consequences if EPA maintains the statutory RVOs for 2014.
EPA is expected to issue in final the 2014 RFS RVOs this Spring.
On January 24, 2014, seven Democratic Members of Congress from Iowa, Minnesota, and Illinois sent a letter to President Obama requesting a meeting with the White House to discuss the proposed reductions to the 2014 RVOs. The same group of Congressmen met recently with EPA Administrator Gina McCarthy to urge EPA to reconsider the proposed reduction. In the January 24, 2014, letter, the Congressmen stress the potentially negative impact of the proposed reductions on the economies in the Midwest and the continued development of biofuels. A press release containing the text of the letter issued by one of the seven Members requesting the meeting, Representative Tim Walz (D-MN), is available online.
On January 23, 2014, EPA issued letters to the American Petroleum Institute (API) and the American Fuel and Petrochemical Manufacturers (AFPM) partially answering their October 2013 petitions for consideration of the final rulemaking, "Regulation of Fuels and Fuel Additives: 2013 Renewable Fuel Standards; Final Rule," published in the Federal Register on August 15, 2013. In its letters, EPA explains that it is granting the petitions by AFPM and API for reconsideration of the 2013 cellulosic biofuel standard under the RFS. EPA explained that it came to this decision in light of KiOR, Inc.'s downgraded production projections for 2013. KiOR has been the largest U.S. producer of cellulosic biofuels, and EPA largely depended on the availability of the Company's projected volumes to help ensure obligated parties under the RFS could meet their 2013 cellulosic biofuel requirements.
While welcomed by API and AFPM, this announcement comes at a time when the biofuels industry -- and the cellulosic biofuels industry in particular -- is under increasing attack by API, AFPM, and other stakeholders in the refining, agriculture, and food sectors. Several leaders within the biofuels industry had urged EPA not to grant the petitions by AFPM and API for reconsideration of the 2013 cellulosic biofuel standards under the RFS.
There have been several efforts in the last few weeks to convince the Obama Administration to reconsider its proposal to reduce the 2014 Renewable Fuel Standard (RFS) statutory renewable volume obligations (RVO) for advanced and total renewable (corn ethanol) biofuels, and to maintain in 2014 and 2015 the status quo for biodiesel. Senators David Vitter (R-LA) and Benjamin Cardin (D-MD) are expected to introduce a bill in the coming weeks, which would amend the RFS and reduce its corn ethanol targets.
On December 18, a group of 16 Senators met with EPA Administrator Gina McCarthy to urge EPA to maintain the statutory 2014 RFS RVOs for advanced and total renewable fuels. They argued that the proposed reductions are unnecessary given expected production and that they would harm their respective state economies and the energy diversity and security of the United States. On the same day, Senator Heidi Heitkamp (D-ND), who had attended the meeting, sent a letter to Administrator McCarthy expressing her concerns about EPA's RFS proposed rule. A copy of the letter is available online.
Also on December 18, 2013, 54 Members of the House of Representatives from 24 states sent a letter to the leaders of the EPA, U.S. Department of Agriculture (USDA), and Office of Management and Budget urging that the RFS final rule increase the required volumes of biodiesel. A copy of the letter is available online.
On December 20, 2013, the Governors of six Midwestern states sent a letter to President Obama expressing their concerns about the RFS proposed rule. They also urged the Administration to maintain the statutory RFS RVOs for total renewable fuel and raise the biodiesel requirements for 2014 and 2015. A copy of the letter is available online.
On November 15, 2013, U.S. Environmental Protection Agency (EPA) Administrator Gina McCarthy signed the long-awaited and much anticipated Notice of Proposed Rulemaking (NPRM) to set the 2014 renewable volume obligations (RVO) under the federal Renewable Fuel Standard (RFS). Included in the NPRM is a proposal to repeal retroactively the 2011 cellulosic RVOs and refund obligated parties nearly $5 million to recover their costs for trying to meet them. Simultaneously, the Agency issued a pre-publication of its request for comment on several petitions it has received from the American Petroleum Institute (API), American Fuel and Petrochemical Manufacturers (AFPM), and individual obligated parties requesting that EPA grant a partial waiver of the 2014 RFS statutory RVOs. Copies of the pre-published NPRM and the pre-published request for comment notice are available online.
The NPRM appears to be similar to the draft of it that was leaked publicly last month. It marks a shift in EPA's implementation of the RFS, as it proposes to reduce the overall and advanced RVOs, in addition to the cellulosic RVOs. EPA cites blend wall concerns for the proposed overall and advanced reductions. The Agency proposes to maintain the 2013 RVOs for biodiesel in both 2014 and 2015 at a level of 1.28 billion gallons. The cellulosic, advanced, and total renewable RVO gallons contained in the RFS statute for 2014 are: 1.75 billion for cellulosic, 3.75 billion for advanced, and 18.15 billion for total renewable fuel (the RVO for corn starch ethanol is this number minus those for advanced, cellulosic and biodiesel). The proposed RVO gallons for 2014 are: 17 million for cellulosic, 2.2 billion for advanced, and 15.21 billion for total renewable.
Advocates on both sides have ramped up their advocacy since the release of the NPRM. The oil industry continues to call for full repeal of the RFS through the legislative process and the biofuels industry has denounced EPA's shift in RFS implementation, stressing the importance of the stability of the RFS to continue investment in biofuels, especially advanced and cellulosic biofuels. In addition, new groups have formed to add to the debate. A veterans group, VoteVets.org, and Americans United for Change have plans for a media campaign to support ethanol and the RFS. The Bipartisan Policy Center is forming an advisory committee of biofuels stakeholders to develop proposals for RFS reform. Just before the release of the NPRM, a group of 32 Senators, including Patty Murray (D-WA), Al Franken (D-MN), Roy Blunt (R-MO), and Chuck Grassley (R-IA), sent a letter to EPA, calling on the Agency to increase the biodiesel RVO for 2014 instead of holding it at this year's levels as was proposed in the leaked draft 2014 RFS proposed rule (and as is maintained in the official NPRM).
A hearing will be held on December 5, 2013, beginning at 9:00 a.m. at the Hyatt Regency in Crystal City located in Arlington, Virginia. A copy of the notice is available online.
On November 8, 2013, Congressman Bruce Braley (D-IA) sent a letter to President Obama stating that he is "angered and frustrated" that EPA is considering reducing renewable volume obligations (RVO) as part of its current rulemaking process to set the 2014 RVOs under the federal RFS. He further urges President Obama and his Administration to reconsider such reductions and points out that reductions like those contained in a recently leaked draft of the 2014 RFS proposed rule would harm economies throughout the Midwest and would damage the country's biofuel infrastructure. The sentiments in the letter are similar to ones expressed recently by many representing the biofuels industry.
The oil industry generally has urged EPA to make the kind of reductions to the 2014 RVOs as contained in the leaked draft proposed rule.