US court denies NPRA-API challenge of RFS revisions

The federal appeals court for the District of Columbia rejected the National Petrochemical & Refiners Association’s and American Petroleum Institute’s petition to set aside changes the US Environmental Protection Agency made in the federal renewable fuels standard.

Nick Snow
OGJ Washington Editor

WASHINGTON, DC, Dec. 22 -- The federal appeals court for the District of Columbia rejected the National Petrochemical & Refiners Association’s and American Petroleum Institute’s petition to set aside changes the US Environmental Protection Agency made in the federal renewable fuels standard.

NPRA and API argued the changes violated 2009 and 2010 biomass-based diesel fuel requirements, were impermissibly retroactive, and did not comply with statutory lead time and compliance provisions for renewable fuels established by the 2005 Energy Policy Act and expanded by the 2007 Energy Independence and Security Act.

“EPA had clear albeit implicit authority under EISA to apply both the 2009 and 2010 volume requirements in the 2010 calendar year in order to achieve the statutory purpose,” Judge Judith W. Rogers wrote in her Dec. 21 opinion. “The structure of EISA demonstrates that Congress anticipated the possibility of some retroactive impacts in the first year of the expanded renewable fuel program.”

NPRA President Charles T. Drevna expressed disappointment and concern over the ruling. “The legal petition before the court did not seek to challenge or call into question the important role biofuels play in our nation’s transportation policy,” he said. “Rather, the issue is one of fundamental fairness in EPA’s rulemaking process. This retroactive regulation by a federal agency establishes a deeply troubling and potentially far-reaching precedent.”

“This is a disappointing decision. Setting requirements to blend certain biofuels for the previous year is a legally questionable retroactive action,” said Patrick Kelly, a senior policy advisor in API’s downstream fuels issues group.

API supports a realistic and workable RFS and its members are committed to meeting the regulatory requirements, he continued. “This decision significantly complicates compliance and may set a dangerous precedent allowing retroactive requirements for past compliance periods,” Kelly said.

Contact Nick Snow at nicks@pennwell.com

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