Mixed Messages for Advanced Biofuels

There are some mixed messages coming from the D.C. Circuit today as they ruled to vacate the 2012 cellulosic biofuel standard, yet affirmed the 2012 advanced biofuel standard as part of the Renewable Fuel Standard (RFS). The biofuels industry reacted to the decisions and noted that although the court vacated the cellulosic standard, it also rejected API’s argument that EPA was required to follow the U.S. Energy Information Administration’s projections in setting its own. The court also rejected API’s argument that EPA was not entitled to consider information from cellulosic biofuel producers in setting its projection, finding that cellulosic producers were an “almost inevitable source of information” Project Libertyfor EPA. According to several biofuel organizations, these were important decisions that give EPA flexibility in setting cellulosic biofuel volumes in the future.

The court vacated the cellulosic biofuel standard because it believed that EPA had impermissibly set the volume with the objective of promoting growth in the industry, rather than simply making an accurate prediction. The biofuels organizations strongly disagree with this characterization — EPA did not determine a reasonably achievable volume and then inflate it, they say. Rather, it set the volume based on the best information available to it at the time. In the end, EPA is free to reinstate the volumes that it had established, as long as the information available at the time would support the agency’s conclusion that those volumes were reasonably achievable. The court’s decision does not now require, or permit, EPA to set volumes based on hindsight.

The D.C. Circuit also affirmed the EPA’s decision not to reduce the advanced biofuel volume, categorically rejecting API’s arguments that EPA must be support its decision not to reduce the applicable volume of advanced biofuels with specific numerical projections.

In a joint statement, the biofuel organizations stated that, “although we disagree with the court’s decision vacating the 2012 cellulosic volumes, today’s decision once again rejects broad-brushed attempts to effectively roll back the federal Renewable Fuel Standard.”

The biofuel organizations include the Advanced Biofuels Association (ABFA), Advanced Ethanol Council (AEC), American Coalition for Ethanol (ACE), Biotechnology Industry Organization (BIO), Growth Energy, and Renewable Fuels Association (RFA). They are reviewing the court’s decision and assessing next steps in the matter.

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