Groups Ask Court to Restore RFS Gallons

OMAHA (DTN) -- A coalition of agriculture and biofuel groups is asking a federal appeals court to order the EPA to restore 500 million gallons of ethanol to the Renewable Fuel Standard.

In 2017, the U.S. Court of Appeals for the District of Columbia Circuit ruled the EPA had illegally waived the gallons from the 2016 Renewable Fuel Standard renewable volume obligations and required the agency to restore them, which the EPA has not yet done.

The coalition, which includes Growth Energy, Renewable Fuels Association, National Biodiesel Board, American Coalition for Ethanol, National Corn Growers Association, National Farmers Union, and National Sorghum Producers, is now asking the same court to require EPA to set a "curative obligation" to make up for the lost gallons.

In addition, the new lawsuit asks the court to require the agency to act within six months after a court order and to require obligated parties to show compliance within three months after EPA would issue a curative obligation.

"It is simply unconscionable that EPA would so brazenly ignore a federal court's order," the groups said in a statement.

"The agency must do right by America's farmers and biofuel producers and supporters. Together, our coalition represents millions of rural families who should not have to resort to more court proceedings to hold EPA accountable to the law. It's well past overdue that EPA restore the 500 million gallons and focus on restoring integrity to the Renewable Fuel Standard."

In the July 2017 ruling in Americans for Clean Energy v. EPA, the court invalidated the EPA's improper waiver of 500 million gallons in the 2016 RVO and ordered EPA to revisit the rule.

In its ruling, the court held EPA's interpretation of an inadequate-domestic-supply waiver provision "runs contrary to how the Renewable Fuel Program is supposed to work." So far, the EPA has not acted to restore 500 million gallons in lost Renewable Identification Numbers, or RINs.

A few months after the court's 2017 decision, the lawsuit said, EPA acknowledged the "importance of implementing the court's mandate."

EPA's 2018 RVO rule stated there was "considerable uncertainty" about the number of available RINs because of "the possible impact of an action to address the remand in ACE."

One month later, EPA issued a notice acknowledging "some uncertainty" about available RINs "in light of the fact that the EPA has not yet indicated its intentions with respect to responding to the remand," according to the lawsuit.

"In the EnviroFlash, EPA noted that it currently believes that it would be appropriate for the EPA to allow use of current-year RINs (including carryover-RINs) to satisfy further obligations, if any, for a past compliance year that may result from the ACE remand," the lawsuit said.

"EPA next deemed the ACE remand outside the scope of the 2019 rulemaking, despite acknowledging the 'compelling need to respond to the remand' and re-affirming its 'intent to expeditiously move ahead.'"

In 2019, the groups urged EPA to "immediately address the D.C. Circuit's vacatur of EPA's general waiver of the 2016 total volume requirement," pointing out the agency could "easily remedy the vacatur by adding the 500 million RINs covered by the vacated general waiver to the total 2019 volume requirement."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(c) Copyright 2020 DTN, LLC. All rights reserved.