Monday, July 23, 2012

National Chicken Council v. U.S. EPA

Jan 20: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1107. On Petitions for Review of a Final Action of the U.S. EPA. The Appeals Court summarizes that the National Chicken Council, National Meat Association, and National Turkey Federation petition for review of EPA's interpretation of a provision in the Energy Independence and Security Act of 2007 (EISA) and, "Because the petitioners fail to show that a favorable ruling would redress their claimed injuries, we dismiss their petition on standing grounds."
    Under the EISA, ethanol qualifies as a "renewable fuel" under certain circumstances. Ethanol from a production plant that commenced construction after December 19, 2007 (the date of the EISA's enactment) counts as renewable fuel if it "achieves at least a 20 percent reduction in lifecycle greenhouse gas emissions" in comparison to fossil fuels. 42 U.S.C. § 7545(o)(2)(A)(i). Ethanol from a plant that commenced construction on or before December 19, 2007 is not subject to that requirement; it counts as renewable fuel whether it reduces emissions or not. Id. i.e. the older ethanol plants are "grandfathered in."
    The statutory provision at issue in this case is an extension of the EISA's grandfather clause. It states that, "[f]or calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance . . . with the 20 percent reduction requirement." The Appeals Court explains, " In its Notice of Proposed Rulemaking, EPA claimed the provision was ambiguous because it did 'not specify whether [ethanol plants fired with natural gas and/or biomass] are deemed to be in compliance only for the period of 2008 and 2009, or indefinitely.' . . After considering public comments, EPA adopted the latter interpretation in its Final Rule. It read the provision to mean that ethanol plants fired with natural gas and/or biomass that commenced construction in 2008 or 2009 ('qualifying ethanol plants') are deemed compliant with the 20 percent greenhouse gas reduction requirement 'indefinitely.' . . Functionally, that meant qualifying ethanol plants could generate RINs [Renewable Identification Numbers for each gallon of renewable fuel] indefinitely without having to ensure that their ethanol met the emissions-reduction requirement."
    The Appeals Court notes that, "The petitioners argue EPA's interpretation of the provision is inconsistent with the statutory text, and they ask us to set it aside. To establish their Article III standing to seek such relief, they must show that they have suffered (or will soon suffer) a 'concrete' injury in fact; that their injury is or will be 'fairly . . . trace[able]' to EPA's interpretation of the provision; and that there is a 'substantial likelihood' their injury would be redressed if we set EPA's interpretation aside."
    The Appeals Court concludes, "If we were to vacate EPA's interpretation, the only consequence for qualifying ethanol plants is that they would no longer be able to generate RINs without complying with the EISA's emissions-reduction requirement. The petitioners fail to show a 'substantial probability' that qualifying ethanol plants would reduce their ethanol production as a result of that change. . . We should not be understood to foreclose any challenge to EPA's interpretation of the provision; a different petition, properly supported, could allow us to address the merits of EPA's reading. But the petitioners here have failed to establish their standing, and their petition for review is accordingly dismissed."
    Access the complete opinion (click here). [#Energy/Ethanol, #CADC]
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