{"id":1492,"date":"2013-02-20T19:28:48","date_gmt":"2013-02-20T19:28:48","guid":{"rendered":"http:\/\/ncjolt.org\/?p=1492"},"modified":"2020-06-04T20:54:02","modified_gmt":"2020-06-04T20:54:02","slug":"d-c-circuit-reviews-epas-2012-renewable-fuel-standard-rule","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/d-c-circuit-reviews-epas-2012-renewable-fuel-standard-rule\/","title":{"rendered":"D.C. Circuit Reviews EPA\u2019s 2012 Renewable Fuel Standard Rule"},"content":{"rendered":"

Thursday, February 21, 2013, by Drew Hargrove
\nEPA\u2019s Renewable Fuel Standard Program<\/a> (\u201cRFS\u201d) regulates the amount of renewable fuel contained in transportation fuel sold in the United States.\u00a0 The Clean Air Act\u00a0 (\u201cAct\u201d) requires EPA to set renewable fuel standards (\u201capplicable volumes\u201d) each year for specific classes of renewable fuels for the following calendar year.\u00a0 Once the applicable volume is set, the fuel industry must meet that volume or purchase credits.
\nRecently, in American Petroleum Institute v. U.S. EPA<\/em><\/a>, the D.C. Circuit ruled on EPA\u2019s 2012 Renewable Fuel Standard.\u00a0 In that case, the petroleum industry challenged EPA\u2019s decision not to lower the applicable volume for \u201cadvanced biofuels,\u201d which are a specific class of renewable fuel.\u00a0 Also the petroleum industry challenged EPA\u2019s projections for \u201ccellulosic biofuels\u201d (a sub-category of advanced biofuels).
\nThe court held that EPA \u201carticulated a satisfactory explanation\u201d for refusing to lower the applicable volume for advanced biofuels.\u00a0 However, the court also vacated EPA\u2019s 2012 projection for cellulosic biofuels based on finding EPA\u2019s projection to be beyond the agency\u2019s statutory authority:
\n[N]either statutory text nor the general structure of the RFS program supported EPA\u2019s decision to adopt a methodology in which the risk of overestimation was set deliberately to outweigh the risk of underestimation.
\nIn rejecting the EPA\u2019s cellulosic biofuel projection, the court stated that, \u201can agency may base a standard or mandate on future technology when there exists a rational connection between the regulatory target and the presumed innovation.\u201d\u00a0 The court claimed to extend Chevron <\/em>deference but noted that, the \u201cmost natural reading\u201d of the Act\u2019s cellulosic biofuel provision was to \u201ccall for a projection that aims at accuracy, not at deliberately indulging a greater risk of overshooting than undershooting.\u201d\u00a0 The court based its interpretation upon Congress\u2019s willingness to provide a safety valve that only pertains to cellulosic biofuels–the Act allows EPA to make yearly projections for cellulosic biofuels when the statutory volume could not be met.\u00a0\u00a0 In this light, the court found that the methodology employed by EPA failed to \u201ctake neutral aim at accuracy.\u201d
\nThe court\u2019s decision illustrates the inherent difficulty in promulgating and enforcing technology-forcing standards.\u00a0 Developing projections for unproven technologies is inherently difficult since it is hard to find relevant and reliable data.\u00a0 Further complicating matters is the judicial review of agency decisions under the ever-malleable Chevron et al. <\/em>analysis. \u00a0<\/em>Here, the court purported to extend Chevron <\/em>deference but appears to extend something less.\u00a0 The court\u2019s reticence to extend true Chevron <\/em>deference did not appear to be based upon a concern for drastic regulatory changes in the \u00a0\u201cChevron <\/em>\u00a0Step 0\u201d sense.\u00a0 Instead, the court expressed concern over the refinery industry as a \u201ccaptive consumer,\u201d which is not in a position \u201cto ensure, or even contribute to, growth in the cellulosic biofuel industry.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

Thursday, February 21, 2013, by Drew Hargrove EPA\u2019s Renewable Fuel Standard Program (\u201cRFS\u201d) regulates the amount of renewable fuel contained in transportation fuel sold in the United States.\u00a0 The Clean Air Act\u00a0 (\u201cAct\u201d) requires EPA to set renewable fuel standards (\u201capplicable volumes\u201d) each year for specific classes of renewable fuels for the following calendar year.\u00a0 …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1492"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=1492"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1492\/revisions"}],"predecessor-version":[{"id":7623,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1492\/revisions\/7623"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=1492"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=1492"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=1492"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}