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Growth Energy, RFA Motion to Intervene in Endangered Species Act RFS Lawsuit

Todd Neeley
By  Todd Neeley , DTN Environmental Editor
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Growth Energy and the Renewable Fuels Association seek to intervene in a federal lawsuit that could result in EPA's June 2022 Renewable Fuel Standard rule being vacated. (DTN file photo)

LINCOLN, Neb. (DTN) -- Ethanol interest groups Growth Energy and the Renewable Fuels Association filed motions with a federal appeals court to intervene in a federal lawsuit seeking to vacate EPA's June 2022 final Renewable Fuel Standard rule.

The Center for Biological Diversity alleged in a petition filed with the U.S. Court of Appeals for the District of Columbia Circuit that the agency failed to conduct an Endangered Species Act review of the RFS rule.

Since the CBD filed its petition in July, seven other similar petitions have been filed and consolidated into one case.

"Given the statements of issues and motion for summary vacatur that some petitioners have already filed, as well as arguments petitioners raised on the proposed 2022 rule and in litigation challenging prior RFS rules, Growth Energy expects that petitioners will challenge the 2022 rule on grounds that will seek to reduce the required volumes or percentage standards," the group said in its motion.

"Because the volumes and percentage standards mandate the national level of demand for renewable fuels, any reduction in the final percentage standards resulting from this litigation would reduce demand for the products that Growth Energy's members develop and sell, harming their businesses and their substantial investments in facilities, materials, and technologies used in the production of renewable fuel.

"For the same reasons that Growth Energy has a substantial interest that could be affected adversely by this litigation, some of its members will suffer a cognizable injury-in-fact if the 2022 Rule is set aside on any ground that would result in reduced volume requirements."

The RFA said in a motion to intervene on behalf of the EPA that the group is intervening "to protect its substantial interest in the integrity of the Renewable Fuel Standard program and the investments RFA's members have made in renewable fuels to support the program."

RFA President and CEO Geoff Cooper said in a news release the Biden EPA has been taking the right steps to fortify the RFS.

"After years of mismanagement and setbacks by previous administrations, the Biden administration's EPA has been moving in the right direction on the Renewable Fuel Standard," Cooper said. "But now, an extreme environmental-activist group is trying to derail that progress and success. We are seeking to intervene in this case to ensure EPA can continue its work to put the RFS back on track and restore integrity to the program. We will do all we can to make sure the law and Congress' intent are upheld."

The CBD asked the court to vacate the latest rule for fear it is damaging endangered species habitats.

In June, EPA finalized an RFS package that made retroactive cuts to corn ethanol for 2020 and set corn ethanol at below 15 billion gallons also for 2021.

The Biden administration, however, restored corn ethanol to 15 billion gallons for 2022, with total biofuel gallons set at 20.63 billion gallons. The 2022 number was set slightly lower than the proposed 20.77 billion gallons in December 2021.

Despite pleas from the ethanol industry, EPA reset lower corn-ethanol volumes at 12.5 billion gallons for the COVID-19 shutdown year of 2020. The agency retroactively cut nearly 3 billion gallons from 2020's total biofuel gallons, finalized at 17.13 billion gallons.

EPA also added a 250-million-gallon "supplemental obligation" to the volumes proposed for 2022. The agency said it intends to add another 250 million gallons in 2023 to address the remand of the 2014 to 2016 annual rule by the U.S. Court of Appeals for the District of Columbia Circuit.

In addition, EPA officially denied all pending small-refinery exemptions to the RFS and announced a proposed rulemaking to change the exemptions process.

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