Bergeson & Campbell, P.C. (B&C®) is a Washington, D.C., law firm providing biobased and renewable chemical product stakeholders unparalleled experience, judgment, and excellence in bringing innovative products to market.

By  Lynn L. Bergeson

On May 28, 2021, the Biden-Harris Administration submitted President Joseph Biden’s budget for fiscal year 2022 (FY 2022) to Congress. According to EPA’s May 28, 2021, press release, the budget request advances “key EPA priorities, including tackling climate change, advancing environmental justice, protecting public health, improving infrastructure, creating jobs, and supporting and rebuilding the EPA workforce.” The President’s FY 2022 budget request supports:

  • Rebuilding Infrastructure and Creating Jobs: The budget provides $882 million for the Superfund Remedial program to clean up some of the nation’s most contaminated land, reduce emissions of toxic substances and greenhouse gases (GHG) from existing and abandoned infrastructure, and respond to environmental emergencies, oil spills, and natural disasters;
     
  • Protecting Public Health: The budget includes $75 million to accelerate toxicity studies and fund research to inform the regulatory developments of designating per- and polyfluoroalkyl substances (PFAS) as hazardous substances while setting enforceable limits for PFAS. In FY 2022, EPA will advance public health by providing an additional $15 million and 87 full-time equivalent employees (FTE) to build agency capacity in managing chemical safety and toxic substances under the Toxic Substances Control Act (TSCA);
     
  • Tackling the Climate Crisis with the Urgency Science Demands: The FY 2022 budget recognizes the opportunity in tackling the climate crisis by developing the technologies and solutions that will drive new markets and create good paying jobs. The budget restores the Air, Climate, and Energy Research Program and increases base funding by more than $60 million, including $30 million for breakthrough research through the Advanced Research Projects Agency-Climate (ARPA-C) with DOE. The budget provides an additional $6.1 million and 14 FTEs to implement the recently enacted American Innovation and Manufacturing (AIM) Act and reduce potent GHGs while supporting new manufacturing in the United States;
     
  • Advancing Environmental Justice and Civil Rights: The budget includes more than $900 million in investments for environmental justice-related work, collectively known as EPA’s Accelerating Environmental and Economic Justice Initiative, elevating environmental justice as a top priority across the agency. The budget also proposes a new national program dedicated to environmental justice to further that goal;
     
  • Supporting States, Tribes, and Regional Offices: Almost half of the total budget, $5.1 billion, will support states, tribes, and localities through the State and Tribal Assistance Grants account;
     
  • Prioritizing Science and Enhancing the Workforce: The FY 2022 budget includes an increase of 1,026 FTEs “to stop the downward slide in the size of EPA’s workforce in recent years to better meet the mission.” Within this increase are 114 FTEs to propel and expand EPA’s research programs to ensure the agency has the science programs that communities demand from EPA. Also included are 86 additional FTEs to support the criminal and civil enforcement programs to ensure that environmental laws are followed.

 

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

On March 3, 2021, the co-chairs of the House Biofuels Caucus, U.S. Representatives Cindy Axne (D-IA) and Rodney Davis (R-IL), introduced the Renewable Fuels Infrastructure Investment and Market Expansion Act, which would expand access to higher biofuel blends. Building off the U.S. Department of Agriculture’s (USDA) Higher Blends Infrastructure Inventive Program, this bill intends to provide consistent federal investment ($500 million over five years) on biofuels infrastructure, while also removing barriers to 15 percent ethanol and 85 percent gasoline (E15) fuel blends and allowing Underground Storage Tanks (UST) to store higher blends of ethanol.

On the same day, with the support of Representatives Axne and Davis, among others, U.S. Representative Dusty Johnson (R-SD) introduced the Adopt GREET Act. The Adopt GREET Act would require that EPA update its greenhouse gas (GHG) models for ethanol and biodiesel to reflect better the environmental benefits of agriculture and biofuels. Specifically, EPA would be obligated, under this Act, to adopt the Argonne National Laboratory’s Greenhouse Gases, Regulated Emissions, and Energy Use in Transportation (GREET) Model for both biodiesel and ethanol fuels and update its model as needed every five years.

Both pieces of legislation are being supported by several industry stakeholders, including the National Corn Growers Association, the Renewable Fuels Association, and Growth Energy.


 

By Lynn L. Bergeson

On July 5, 2019, the U.S. Department of Agriculture (USDA) Office of Procurement and Property Management published a final rule that will amend the Guidelines for Designating Biobased Products for Federal Procurement (Guidelines) to add 30 sections designating the product categories within which biobased products would be afforded procurement preference by federal agencies and their contractors. These 30 product categories contain finished products that are made, in large part, from intermediate ingredients that have been designated for federal procurement preference. Additionally, USDA is amending the existing designated product categories of general purpose de-icers, firearm lubricants, laundry products, and water clarifying agents. The rule will be effective on August 5, 2019.
 
According to the final rule, when USDA designates by rulemaking a product category for preferred procurement under the BioPreferred Program, manufacturers of all products under the umbrella of that product category that meet the requirements to qualify for preferred procurement can claim that status for their products. To qualify for preferred procurement, a product must be within a designated product category and contain at least the minimum biobased content established for the designated product category. With the designation of these specific product categories, USDA invites manufacturers and vendors of qualifying products to provide information on the product, contacts, and performance testing for posting on its BioPreferred website. USDA states that procuring agencies will be able to use this website “as one tool to determine the availability of qualifying biobased products under a designated product category.”
 
For further information, see Bergeson & Campbell, P.C.’s memorandum on the final rule. In the memorandum, we link to the Biobased and Renewable Products Advocacy Group (BRAG®) and its interest in biobased products.


 

By Lynn L. Bergeson

An Executive Order (EO) issued by President Trump on June 14, 2019, would require all federal agencies and departments to evaluate the need for their current advisory committees established under Section 9(a)(2) of the Federal Advisory Committee Act (FACA). 
 
Entitled “Executive Order on Evaluating and Improving the Utility of Federal Advisory Committees,” the EO also would require each federal agency to terminate at least one-third of its current committees by September 30, 2019.  The EO targets committees:

  • That have accomplished their stated objectives;
     
  • Where the subject matter or work of the committee has become obsolete;
     
  • Where the primary functions of the committee have been assumed by another entity; or
     
  • Where the agency determines that the cost of the operation of the committee is excessive in relation to the benefits to the federal government. 

The EO allows agencies to count committees terminated since January 20, 2017, toward the one-third goal.
 
The U.S. Environmental Protection Agency (EPA) has 22 FACA committees and thus must terminate at least seven of them under the terms of the EO.  EPA’s FACA committees (and associated EPA offices) are:

  • Children’s Health Protection Advisory Committee (Office of the Administrator/Office of Children’s Health Protection);
     
  • Clean Air Act Advisory Committee (Office of Air and Radiation);
     
  • Clean Air Scientific Advisory Committee (Office of the Administrator/Office of Science Advisory Board);
     
  • Environmental Financial Advisory Board (Office of Water);
     
  • Environmental Laboratory Advisory Board (Office of Research and Development);
     
  • Board of Scientific Counselors (Office of Research and Development);
     
  • Science Advisory Board (Office of the Administrator/Office of the Science Advisor);
     
  • Farm, Ranch, and Rural Communities Advisory Committee (Office of the Administrator);
     
  • Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel (Office of Chemical Safety and Pollution Prevention (OCSPP));
     
  • Good Neighbor Environmental Board (Office of Administration and Resources Management);
     
  • Governmental Advisory Committee to the United States Representative to the North American Commission for Environmental Cooperation (Office of Administration and Resources Management);
     
  • Great Lakes Advisory Board (Office of the Regional Administrator, Region 5);
     
  • Hazardous Waste Electronic Manifest System Advisory Board (Office of Land and Emergency Management);
     
  • Human Studies Review Board (Office of Research and Development/Office of the Science Advisory);
     
  • Local Government Advisory Committee (Office of the Administrator/Office of Congressional and Intergovernmental Relations);
     
  • National Advisory Committee to the United States Representative to the North American Commission for Environmental Cooperation (Office of Administration and Resources Management);
     
  • National Advisory Council for Environmental Policy and Technology (Office of Administration and Resources Management);
     
  • National Drinking Water Advisory Council (Office of Water);
     
  • National Environmental Education Advisory Council (Office of the Administrator/Office of External Affairs and Environmental Education);
     
  • National Environmental Justice Advisory Council (Office of Enforcement and Compliance Assurance);
     
  • Pesticide Program Dialogue Committee (OCSPP); and
     
  • Science Advisory Committee on Chemicals (OCSPP).
Tags: Federal

 

By Lynn L. Bergeson

On February 15, 2019, U.S. President Donald Trump signed into law a bill originally introduced in early 2017 by Representative Nita Lowey (D-NY) titled the Consolidated Appropriations Act, 2019 (2019 Appropriations Act). Of interest to stakeholders in the biobased sector is Section 428, which covers policies relating to biomass energy.  In this section, responsibilities assigned to the U.S. Secretary of Energy, Secretary of Agriculture, and EPA Administrator are outlined in support of the key role forests play in addressing U.S. energy needs.  Among these responsibilities are the establishment of clear and simple policies for forest biomass solutions to the U.S. carbon footprint and the encouragement of private investment throughout the forest biomass supply chain.  Government stakeholders should be consistent across all federal departments and agencies and recognize the full benefits of the use of forest biomass for energy, conservation, and responsible forest management.


 

 

By Lynn L. Bergeson

Representative Scott Peters (D-CA) recently introduced the Algae Agriculture Act of 2018 (H.R. 5373) to the House of Representatives. The bill, sponsored by Representatives Andy Biggs (R-AZ), Derek Kilmer (D-WA), and Darin LaHood (R-IL), would provide similar advantages to algae cultivators and harvesters as those that exist for traditional crop farmers under U.S. agricultural policy. These advantages include: updating the U.S. Department of Agriculture’s (USDA) National Institute of Food and Agriculture to include algae, which will provide funding for additional research into ways to utilize algae; making rural electric cooperatives eligible for Carbon Capture and Use (CUU) projects using algae; and providing crop disaster assistance for algae cultivation. “Algae can become a natural pathway to improve soil health on farms, manage water resources, nutrient run-off, and utilize carbon in a way that earns revenue and reduces climate change impacts,” stated Mark Allen, Vice President of Integrated Carbon Solutions at Accelergy Corporation and Vice Chair of Algae Biomass Organization’s (ABO) board of directors. “This bill is an important step toward making algae farming and other algae technologies an important part of American agriculture.”

Tags: Algae, Federal

 

On February 21, 2017, USDA announced in the Federal Register that the comment period for the Designation of Product Categories for Federal Procurement proposed rule had been extended.  The proposed rule aims to amend the Guidelines for Designating Biobased Products for Federal Procurement to add 12 product categories composed of intermediate ingredient and feedstock materials and to propose a minimum biobased content for each category.  In addition to the product categories and biobased content, USDA is seeking comments on appropriate performance standards for each product category, the positive environmental and human health attributes of biobased products within the proposed categories, and how small businesses may be affected by the proposed rule.  Comments are now due by April 13, 2017.


 

By Lynn L. Bergeson and Carla N. Hutton

On January 4, 2017, the White House announced the release of the 2017 Update to the Coordinated Framework for the Regulation of Biotechnology (2017 Update).  The Update to the Coordinated Framework provides a comprehensive summary of the roles and responsibilities of the U.S. Environmental Protection Agency (EPA), the U.S. Food and Drug Administration (FDA), and the U.S. Department of Agriculture (USDA) with respect to regulating biotechnology products.  Together with the National Strategy for Modernizing the Regulatory System for Biotechnology Products, published in September 2016, the Update to the Coordinated Framework offers a “complete picture of a robust and flexible regulatory structure that provides appropriate oversight for all products of modern biotechnology.”  Within that regulatory structure, the federal agencies “maintain high standards that, based on the best available science, protect health and the environment, while also establishing transparent, coordinated, predictable and efficient regulatory practices.”  To help product developers and the public understand what the regulatory pathway for products might look like, the 2017 Update presents information about agency roles and responsibilities in several forms, including:

  • Graphics that illustrate agency-specific overviews of regulatory roles;
  • Case studies that demonstrate how a product developer might navigate the regulatory framework; and
  • A comprehensive table that summarizes the current responsibilities and the relevant coordination across EPA, FDA, and USDA for the regulatory oversight of an array of biotechnology product areas.

In its blog item, “Increasing the Transparency, Coordination, and Predictability of the Biotechnology Regulatory System,” the Obama Administration acknowledges that while the 2017 Update represents “remarkable progress by the EPA, FDA, and USDA to modernize the regulatory system for biotechnology products, much work remains.”  EPA, FDA, and USDA will consider the comments submitted in response to the proposed 2017 Update and information gathered during the three public engagement sessions hosted by EPA, FDA, and USDA to inform ongoing and future agency activities.  In addition, the agencies commissioned an independent study by the National Academy of Sciences (NAS) on future biotechnology products.  When completed, the agencies will consider the study’s findings, as well as the comments.  More information on the Update to the Coordinated Framework will be available in our forthcoming memorandum, which will be available on our website under the key phrase biobased products, biotechnology.


 

On November 16, 2016, the White House filed the Mid-Century Strategy for Deep Decarbonization with the United Nations Framework Convention on Climate Change under the Paris climate deal. The strategy highlights the role that U.S. government-funded research, development, and demonstration (RD&D) had on the technological advances of the last century, and the potential to increase the pace and reduce the costs of decarbonization using the full power of U.S. RD&D efforts focused on clean energy technologies.
 
The strategy states that potentially high impact technologies in early stages of development or commercial deployment, such as carbon capture, utilization, and storage (CCUS), advanced nuclear, and second generation biofuels, can benefit from support programs that drive cost reductions through learning and economies-of-scale. The strategy also states that the cost of decarbonization can likely be lowered by public and private RD&D that covers a wide range of technologies as it is unclear how the technologies will progress over time. 

Regarding biofuels, the strategy identified opportunities for RD&D investments to:


 
Reduce biofuel production costs;
 

 
Improve production efficiency;
 

 
Develop “drop-in” fuels that require no changes to existing fuel infrastructure;
 


 
Co-optimize engines with low-carbon fuel to maximize performance and greenhouse gas reductions; and
 
Ensure biomass production and use methods are carbon beneficial.

 
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