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EPA Informs Court of Plan to Reconsider Cellulosic Ethanol Requirement for 2011

Friday, April 5, 2013

By Andrew Childers  

The Environmental Protection Agency will voluntarily reconsider the cellulosic ethanol blending requirement for 2011, the agency told a federal appellate court in an April 3 motion (American Fuel & Petrochemical Manufacturers v. EPA, D.C. Cir., No. 12-1249, 4/3/13).

It is “unlikely that upon reevaluation EPA would simply re-affirm the 2011 cellulosic biofuel standard without further analysis or explanation” after the U.S. Court of Appeals for the District of Columbia Circuit struck down the blending requirement for 2012, the agency said in its unopposed motion for a voluntary remand.

EPA asked the D.C. Circuit to hold petroleum industry lawsuits challenging the renewable fuel standard requirement to blend 6.6 million gallons of cellulosic biofuel into their fuels in 2011 during the reconsideration process.

Groups Filed Suit in 2012.

The American Fuels & Petrochemical Manufacturers, American Petroleum Institute, and Western States Petroleum Association sued EPA in 2012 after the agency denied their petitions to reconsider the cellulosic ethanol blending requirement after none of the fuel was produced that year.

EPA's request came after the D.C. Circuit vacated the blending requirement for 2012 as “in excess of the agency's statutory authority” because the amount of cellulosic ethanol required substantially exceeded the amount produced that year (American Petroleum Institute v. EPA, D.C. Cir., No. 12-1139, 1/25/13; 44 ER 276, 2/1/13).

“When EPA established the 2011 cellulosic biofuel standard that is at issue in this case, EPA used basically the same method for projecting cellulosic biofuel production as EPA used when it established the 2012 standard,” the agency said.

Petroleum Industry Hails Move.

API spokesman Carlton Carroll told BNA April 4 that EPA's request is a “positive move.”

“However, we want to see the EPA vacate the 2011 rule and hope that decision is made soon,” he said.

Petroleum refiners and importers were required to purchase credits from EPA to satisfy their renewable fuel standard requirements because cellulosic ethanol was not being produced in 2011.

The Biofuel Producers Coordinating Council, Renewable Fuels Association, Growth Energy, and other ethanol producers said in an April 5 statement that the renewable fuel standard has been vital to establishing the cellulosic ethanol industry. However, they said reconsidering the 2011 standard would have little impact on members' operations.

“Advanced biofuel companies across the United States have invested in technology development and construction of first-of-a-kind commercial scale refineries for cellulosic and other advanced biofuels,” the ethanol groups said. “EPA's implementation of the court order does not impact the industry's progress in developing technologies that reduce dependence on foreign oil and contribute to a cleaner environment.”

EPA has proposed requiring 16.55 billion gallons of cellulosic ethanol in 2013, a more than 60 percent increase compared to 2012 levels as the first commercial-scale cellulosic ethanol production facilities begin operation (44 ER 274, 2/1/13).

By Andrew Childers  

EPA's motion for voluntary remand is available at http://op.bna.com/env.nsf/r?Open=smiy-96fppp.

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