|[January 25, 2013]
Joint Statement: Biofuels Producers React To Mixed D.C. Circuit Decision on RFS
WASHINGTON --(Business Wire)--
The D.C. Circuit issued a narrow, but mixed decision today, vacating the
2012 cellulosic biofuel standard and affirming the 2012 advanced biofuel
standard. Reacting to that decision, leading organizations representing
biofuel producers - who had intervened in the litigation to defend the
rulemaking - noted that although the court vacated the cellulosic
standard, it also rejected API's argument that EPA was required to
follow the U.S. Energy Information Administration's projections in
setting its own. Similarly, the court rejected API's argument that EPA
was not entitled to consider information from cellulosic biofuel
producers in setting its projection, finding that cellulosic producers
were, of course, an "almost inevitable source of information" for EPA.
According to the biofuel organizations, these were important decisions
that give EPA flexibility in setting cellulosic biofuel volumes in he
Nonetheless, the court vacated the cellulosic biofuel standard because
it believed that EPA had impermissibly set the volume with the objective
of promoting growth in the industry, rather than simply making an
accurate prediction. The biofuels organizations strongly disagree with
the court's characterization of what EPA did - EPA did not determine a
reasonably achievable volume and then inflate it. Rather, it set the
volume based on the best information available to it at the time.
Regardless, under the D.C. Circuit's decision, EPA is free to reinstate
the volumes that it had established, as long as the information
available at the time would support the agency's conclusion that those
volumes were reasonably achievable. The court's decision does not now
require, or permit, EPA to set volumes based on hindsight.
The D.C. Circuit also affirmed the EPA's decision not to reduce the
advanced biofuel volume, categorically rejecting API's arguments that
EPA must be support its decision not to reduce the applicable volume of
advanced biofuels with specific numerical projections.
In a joint statement, the biofuel organization stated that "although we
disagree with the court's decision vacating the 2012 cellulosic volumes,
today's decision once again rejects broad-brushed attempts to
effectively roll back the federal Renewable Fuel Standard."
The biofuel organizations include the Advanced Biofuels Association
(ABFA), Advanced Ethanol Council (AEC), American Coalition for Ethanol
(ACE), Biotechnology Industry Organization (BIO), Growth Energy, and
Renewable Fuels Association (RFA). They are reviewing the court's
decision and assessing next steps in the matter.
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