OPIS Biofuels Headlines

September 15, 2015
EPA Administrator: RFS Targets Have to 'Pass Muster' in Likely Court Battle

Washington, D.C. -- EPA is committed to growing the U.S. biofuels industry, but will do so in a way that is legally defensible in court, EPA Administrator Gina McCarthy told attendees on Tuesday here at Growth Energy's sixth annual Advocacy Conference.

As part of EPA's 2014-2016 Renewable Fuel Standard (RFS2) proposal, issued on May 29, the agency aims to scale back conventional biofuel targets to account for concern surrounding the ethanol blend wall, while calling for a greater amount of second-generation biofuels.

 The agency is expected to finalize the RFS targets by Nov. 30, and it is widely expected that the rule will end up in litigation.

"The biofuel industry is the great American success story," said McCarthy in her remarks, noting that the U.S. is the largest producer and consumer of biofuels in the world. "The EPA proposal has to continue to build on that success and spur on ambitious, yet achievable growth," she said. "We are working hard to make sure we are moving towards the [RFS] levels intended" by Congress, she added.

After her prepared remarks, one audience member asked McCarthy to rationalize why the EPA proposed to lower the RFS targets, specifically focusing on the conventional biofuel carve out, when the industry is producing above capacity.

"Can I be blunt? We have been using the cellulosic waiver [authority] for a while," McCarthy responded. "Cellulosic just didn't progress, I think, at the rate that Congress thought it would," she said, noting that the RFS targets also had to account for the ebbs and flows of how much gasoline was being produced.

"There has been various attempts by EPA when we go to court [on the RFS] to try to bring some larger picture policy issues to the table when we make our decisions that have fallen very flat on the courts," she said. The RFS "wasn't a rule that had congressional history attached to it, so the only thing we had to look at was the four corners of the language in the statute," she added.

The RFS "is a very difficult statute for us to get our head around when you have as big a leap in production as Congress intended," McCarthy continued. "I am readily saying my job is to reach those levels. First, there's no reason why I wouldn't want to, but secondly, it is my job to. The question I have is, how do I do this in a way that the courts will actually see the same as I do, as being a reasonable interpretation of that law," she said.

"We have had lots of back and forths of what it means or doesn't mean," McCarthy continued. "We're still in the position of looking at the [RFS proposal] comments and understanding where we missed the boat.... My job is not just to respond to what Congress says, but to respond to changes in the world," she said. "I have to ... [issue RFS targets] in a way I think will pass muster because the last thing I want is to give you what you want and we fall flat when we get to the courts. Zero win," she added.


- Rachel Gantz, rgantz@opisnet.com


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