Litigation, legislation not necessary against EPA proposed RFS rule, RFA says

By Derrick Cain

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, Nov. 21, 2013 - Neither litigation nor legislation is needed at this point to push back against the EPA's recent proposed rule to lower the Renewable Fuel Standard (RFS) requirement for 2014 below the congressional mandate, Renewable Fuels Association president Bob Dinneen said today.

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The EPA has proposed to lower the mandate from an 18.15 billion mandate to 15.21 billion gallons of ethanol and biodiesel for blending into gasoline. The move has been roundly criticized within the biofuel sector as an overstepping of the agency's authority and as potentially damaging to the industry.

Still, Dinneen has continued to stress that it is a proposal - with a 60-day public comment period - and not a final rule.

“This is a proposal so there is no legal issue to litigate on,” said Dinneen. “We are hopeful that in the comment period, the agency…ultimately modifies the proposal to not include the blend wall in the waiver process.” The blend wall refers to point at which the E10 fuel pool is saturated with ethanol.

While litigation is not planned to try to stop EPA from continuing toward a final rule, Dinneen said that if the agency goes through with the proposal “it is highly vulnerable to legal challenge.”

Dinneen said the industry also will not press Congress to move to pre-empt any possible rule through legislation. It is not uncommon for legislation to be offered to pull funding from departments - not just EPA - over proposed rules unfavorable to lawmakers.

“Everything is on the table, but we don't see legislation as useful,” Dinneen said. “We're not there yet. This first step is a proposed rule.”

In addition, Jonathan Coppess, assistant professor of law and policy at the University of Illinois and former chief counsel for the Senate Agriculture Committee, agreed with Dinneen by saying this is not the time to file a lawsuit, but instead try to convince EPA to change course.

Supporters of the EPA's proposed rule have said the mandate is unworkable, and hurts U.S. consumers by damaging engines in vehicles and raising the price of corn.

The proposed RFS rule can be viewed here.

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