By Timothy J. Rudnicki, Esq
In the realm of biofuels, it seems the threats from and chaos in Washington D.C. crop up at least monthly, if not weekly. The many threats and ongoing chaos cut to the core of the biofuel industry which has made significant investments in people and production facilities so as to meet its obligations under the RFS. Unfortunately, just when some of us thought the most recent RFS disaster may have been averted, we now learn, just days after the EPA Administrator finally acknowledged the rule of law, the petroleum industry is back hammering away at the Trump Administration to further undermine the RFS.
The most recent disaster that may have been averted for a few days or weeks is the now possibly defunct proposal to “offshore” the RFS by allowing exports to satisfy the RVOs rather than to put biofuels into the market in the United States. Such an action, we noted in the column for last month, would have been an outright repudiation of the RFS and its underlying congressional intent.
Suffice to say, thanks to President Trump’s intervention following pressure from lawmakers that included Senators Amy Klobuchar, Al Franken, Chuck Grassley and Joni Ernst, the spine of the RFS has been preserved at least for now.
Rather than rehash the political maneuvering and process machinations that led to saving the RFS a few days ago, the balance of remarks here are offered as a type of road map for the EPA to consider and perhaps use. First and foremost the law, that is, the statutes, rules and court cases, must transcend short-sighted political knee-jerk reactions.
The enhanced version of the RFS (Energy Independence and Security Act) has been with us for 10 years. Republicans and Democrats and all the interested stakeholders worked their way through an open and transparent democratic process to produce what we have accepted as and indeed is the law of the land, the RFS. Nothing in the RFS is a surprise to biofuel producers nor the petroleum industry but for the manner in which the EPA has devised ways to pervert and distort the simple application of the black letter law.
And, over the last 10 years, it should be apparent to all of us that the majority of the petroleum industry in and of itself has failed to make substantive and significant investments in fueling infrastructure so as to enable more consumers to have access to cleaner, renewable biofuels. Rather than helping to fulfill the spirit and the letter of the law, the petroleum industry has continuously worked to undermine the RFS and the petroleum industry seems to now be even more invigorated and aggressive in its attacks on the RFS as ethanol consumption has cracked through their fictitious “blend wall”.
We must remember that congress - Republicans and Democrats - expected the RFS would put us, as a People and Nation, on a truly renewable energy pathway. A host of energy security, consumer, economic and environmental benefits already are derived from the RFS, but the magnitude of those benefits becomes greater as the RFS is more fully implemented.
Under past administrations, lawmakers and stakeholders have had to come to the defense of the RFS especially with respect to the RVO determinations. But the most recent attack on the RFS (i.e., using exports to meet the RVOs) is unprecedented.
Stakeholders will certainly advocate for their positions with respect to implementing or changing the law, but there are reasons we have congress and agencies in the United States. The EPA Administrator is neither a member of congress nor a judge and the rules of administrative procedure govern the work of the agency rather than powerful interests from the fossil fuels industry.
As such the Administrator is charged with enforcing, for example, the Clean Air Act, the Clean Water Act, Toxic Substances Control Act, Safe Drinking Water Act and many other laws including the RFS. The Administrator should work to restore the credibility of the agency and follow the rule of law.
The road map for the EPA does include some guideposts along the way. There are of course the laws including those embodied in the RFS and the broader Code of Federal Regulations. Another important guidepost is science. Unless the Agency embraces science, particularly with respect to the emission of greenhouse gases and their effect on climate, ecosystems and human societies, the laws such as the RFS may be seen as simply giving favor to biofuels versus petroleum. That interpretation, however, flies in the face of the purpose and intent of the RFS and the science underlying biofuels.
Biofuels are a renewable fuel with a significantly lower lifecycle GHG emission compared to finite fossil fuel petroleum. Whether used in spark ignition engine powered vehicles in amounts of 10 percent, 15 percent (2001 and newer vehicles) or higher blends (flex fuel vehicles), biofuels can immediately help to lower GHG emissions in the transportation sector. It is the RFS that creates the opening for biofuels to enter the petroleum dominated marketplace so as to reduce GHG emissions.
Along this road, particularly with respect to the RFS, are many opportunities to fulfill the intent and vision expressed by Congress: to make America more energy independent with renewable biofuels.
The EPA has, for example, a special opportunity now to connect the dots between the RFS, the CAFE standards and GHG emission targets in the transportation sector. Under the law and based on science, the EPA can unleash the full potential of biofuels to fulfill the aims of the RFS and to improve environmental quality. By keeping strong and enforcing the RFS, maintaining the CAFE Standards and GHG emission targets and accepting the science supporting the use of mid-level blends of ethanol as a high-octane, low carbon fuel, the EPA can fulfill its charge and help usher in a new era for automobile manufacturers, biofuel producers and all of us who depend upon clean air and a life sustaining environment.
The EPA should use its collective energy and resources to work within the law and build a future that puts us further down the renewable energy pathway. It’s better for the economy, energy security, consumers and the environment.
The EPA Administrator should recall his role as the Administrator of the EPA. Or it won’t be too long before President Trump has to once again personally intervene to save the RFS.