EPA will set RFS requirements for this year next year

Nov. 21, 2014
How bad does regulation of the Renewable Fuel Standard have to become before the US Congress ends a program broken beyond repair?

How bad does regulation of the Renewable Fuel Standard have to become before the US Congress ends a program broken beyond repair?

The Environmental Protection Agency on Nov. 21 reported its decision not to complete 2014 RFS values until next year.

Under governing statutes, that work should have been finished a year ago.

RFS values are crucial to so-called obligated parties: refiners and importers of fuel. They determine each party’s requirements for sales of biofuels such as grain ethanol, cellulosic ethanol, and biodiesel.

Obligated parties unable to meet their mandates must buy credits to cover the deficiencies.

All of 2014 thus will transpire without regulated parties knowing the standards to which they’ll be held, financially, to account. Those details will come later. So, in effect, will the bills.

This is regulation at its worst.

It’s nothing new, though. Just before EPA reported its decision, Richard Moskowitz, general counsel of American Fuel & Petrochemical Manufacturers, notified the agency of his group’s intent to sue in pursuit of action. In a letter to EPA Administrator Gina McCarthy, Moskowitz described “an egregious pattern of noncompliance.”

EPA issued the final RFS rule for 2012, he pointed out, on Jan. 9 of that year, 40 days after the statutory deadline and after the start of the compliance year. The agency issued the final 2013 rule on Aug. 15 of that year.

EPA’s deferral of the 2014 regulation thus extends a pattern of increasing—and, to the regulated, potentially expensive—tardiness. The agency said it might act on 2014 standards in 2015 when it publishes the RFS levels for that year.

This represents a failure of governance. That EPA has mishandled its responsibility is clear. But Congress shares blame for enacting a horrid law.

Although EPA has authority to adapt RFS implementation to the market and technical realities that have undermined legislative ambition, it won’t.

Only Congress can end this injustice. And it has only one option. It must correct its mistake and kill the RFS.

(From the subscription area of www.ogjonline, posted Nov. 21, 2014; author’s e-mail: [email protected])