Clean Air Clean Hands

Written by Stephen Kenney

On Thursday, November 12, the Environmental Protection Agency (EPA) lost its bid to block a scheduled deposition for administrator Gina McCarthy.   Judge John Preston Bailey, of the District Court for the Northern District of West Virginia, found McCarthy’s potential testimony to be relevant enough to require a deposition because of her close involvement in the analyses at issue. 

In their lawsuit, Murray contends that the EPA must take into account the economic impact of its regulations.  Murray Energy Corp says the estimates are mandated for every Clean Air Act regulation that affects the coal industry.  Murray cites Section 321(a) of the Clean Air Act (CAA) to support this point.  Section 321(a) requires the EPA to continuously evaluate “potential loss or shifts of employment which may result from the administration or enforcement” of the law.  The EPA believes that it fully complied with the requirements.

Judge Bailey reasoned in his order that McCarthy clearly has personal knowledge of the facts.  He also highlighted that the “dichotomy in positions constitutes extraordinary circumstances.”  McCarthy had testified previously that Section 321(a) has not been interpreted “to require EPA to conduct employment investigations in taking regulatory actions.”  Judge Bailey found this to be contrary to the EPA’s Motion for Summary Judgment where it stated that “EPA is entitled to summary judgment because it has conducted ‘continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans,’ as required by Section 321(a) of the Clean Air Act.” 

Judge Bailey also found that the apparent refusal of the Administrator to comply with the terms of Section 321(a) provides sufficient prima facie evidence of wrongdoing such that the plaintiffs should be able to “probe her deliberative processes”. Finally, the Court found that there is no viable alternative to the deposition of the Administrator.

EPA Proposes New Update to Renewable Fuel Standard

On May 29, 2015, the Environmental Protection Agency released proposed updates to the Renewable Fuel Standard (RFS), which seeks to regulate the amount of biofuels to be blended into conventional gasoline. The standards were created with the reduction of greenhouse gases and reliance on foreign oil in mind.

The proposed standards call for a total volume of 17.4 billion gallons of biofuels by the end of 2016, short of the original 22.25 billion gallon mandate set out by Congress. The proposal also calls for an increase in “advanced biofuels”, a miscellaneous category that includes fuels made from leftover agricultural products like corn stalks and husks to converted fuels from sugar cane and soybean oil, as well as waste oil and greases, to help reach the volume requirements.

The EPA states that the lower standards reflect the difficulties in the market to accommodate the rising levels of ethanol and the lack of availability of non-ethanol sources, citing the Clean Air Act as the source of authority to alter the volume requirements in the original RFS.

The announcement has been met with criticism from both sides, stating that the new proposal doesn’t serve to meet the asserted goals of the RFS, and that the EPA fails to work to circumvent the “blend wall” that stands in the way of further adopting ethanol fuels. Most U.S. gasoline is currently ten percent ethanol, and AAA estimates that only fifteen percent of U.S. vehicles could handle more, limiting the ability to increase ethanol volume beyond the existing percentage.

The proposal will be open for public comment until July 27, 2015, and finalization is planned for November 30, 2015.

Written by Tyler R. Etter - Research Assistant
June 1, 2015

EPA Proposes a Reduction in the Advanced Biofuel Standards for 2014 and a Extension of the 2013 Biomass Diesel Standards for 2014 and 2015.

On November 15^th, The Administrator of the Environmental Protection Agency (EPA) signed a proposed rule that sets the standards for the Renewable Fuel Standard Program (RFS) program for the 2014 renewable fuel standard and the 2015 biomass diesel volume.  Under the Clean Air Act (CAA) and the Energy Independence and Security Act (EISA) EPA must establish the annual standards for the RFS each year. 

The reduction in biofuel standards is a result of overall gasoline consumption in the United States being less than anticipated when Congress established the program in 2007 and the EPA’s updated production projections, which are informed by engagement with industry and assessment of the biofuels market. 

The EPA plans on submitting the proposed rule for publication in the Federal Register (FR) soon.   Once the proposal is published in the Federal Register, it will be open to a 60 day public comment period.

Click here to read a copy of the proposed rule.

Click here to read the fact sheet explaining the proposed rule. 

Written by Joseph Negaard - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

November 19, 2013

U.S. Supreme Court Declines to Hear Challenge to EPA’s E15

On June 24, 2013, the Supreme Court denied a writ of certiorari from a group of refiners, auto manufacturers, and grocery wholesalers challenging the Environmental Protection Agency’s (EPA) E15. The U.S. Court of Appeals for the District of Columbia previously found that the group had no standing to challenge the E15.

The E15 is a combination of two waivers passed by the EPA allowing for the addition of up to 15% ethanol to gasoline for use in light-duty motor vehicles manufactured from 2001 to 2007. Several oil industry groups, like the American Fuel and Petrochemical Manufacturers (AFPM), opposed the waivers, claiming that the EPA does not have the authority under the Clean Air Act to grant the E15 waivers, and that the use of 15% ethanol in motor vehicles can cause engine damage.  AFPM President Charles Drevna stated the Supreme Court’s decision not to hear the appeal will negatively impact consumers.

In contrast, biofuel companies are pleased that the Supreme Court declined to hear the appeal. Growth Energy, a biofuels advocacy group that supports the E15, hailed the decision not to hear the challenge.  Growth Energy’s CEO Tom Buis stated that he hoped that oil companies would work with biofuel producers to create new blends that will reduce cost for consumers, create jobs, and be mindful of the environment.

Written By Sarah Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

June 25, 2013