Environmental and Land Use Law

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EPA Sued for Failing to Evaluate Renewable Fuel Standard Program

On October 19, the Sierra Club filed suit against the Environmental Protection Agency, alleging that the agency is years overdue in complying with statutory deadlines for evaluating the environmental impacts of the federal renewable fuel standard program.

The Renewable Fuel Standard (“RFS”) program was adopted in 2005 and greatly expanded in 2007, as part of the Energy Independence and Security Act, which aimed, primarily, to move the country away from dependence on foreign oil.  The program requires fuel producers to incorporate billions of gallons of renewable fuel into the nation’s gasoline supply each year.  Renewable fuels are derived from plants, waste, and other materials and are “used to replace or reduce the quantity of fossil fuel present in a transportation fuel.”  42 U.S.C. § 7545(I-J).

In 2017, EPA required fuel producers to incorporate over 19 billion gallons of renewable fuel into the gasoline supply.  Of that amount, about four billion gallons were required to be low greenhouse gas emitting “advanced biofuels,” such as cellulose-based fuels derived from grass and wood, while the vast majority—15 billion gallons—was permitted to be corn-based ethanol.  According to EPA that standard will cause “all but a tiny portion” of gasoline sold in the United States to contain at least 10% ethanol. 81 Fed. Reg. 89746, 89775.

The problem, according to the complaint filed in District of Columbia District Court, is that increased ethanol production has had serious adverse impacts that have gone unevaluated.  The complaint describes how ethanol production causes water pollution and the loss of wetlands and other habitat important for wildlife.  In addition, the complaint alleges that adding ethanol to gasoline causes it to emit more ozone-causing and carcinogenic air pollutants when burned.

EPA is required to provide a report to Congress concerning the environmental and resource conservation impacts of the RFS program every three years, and to conduct an “anti-backsliding” study to determine whether the program adversely affects air quality, which was due in June 2009.  42 U.S.C. § 7545 note, (v)(1)(A).  EPA has failed to submit multiple triennial reports, due in 2013 and 2016, and has failed to undertake the anti-backsliding study.  The Sierra Club seeks declaratory and injunctive relief requiring EPA to fulfill those obligations.

 

About the Author

Christine Zaleski – Associate

Christine helps clients with municipal and environmental issues.


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