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Challenge to RFS2 denied

A petition challenging EPA's recent changes to the Renewable Fuels Standard (RFS2) was denied in full this week. The petition, brought by the National Petrochemical Refiners Association (NPRA) and the American Petroleum Institute (API), was rejected by Judge Rogers, U.S. District Court of Appeals for the District of Columbia.

NPRA and API challenged the establishment of certain retroactive renewable fuel volume requirements under EPA's final RFS2 rule, as well as EPA's compliance with deadlines established by the Energy Independence and Security Act of 2007 (EISA 2007).

EISA 2007 required EPA to set volume requirements for the use of specific categories of renewable fuels for each year by November 30 of the previous year. EPA, however, did not issue the final RFS2 rule or the volume obligations for 2010 until March 26, the NPRA argued.

"Setting requirements to blend certain biofuels for the previous year is a legally questionable retroactive action," said Patrick Kelly, senior policy advisor, API.

The RFS was adopted by Congress as part of EISA. Growth Energy's CEO Tom Buis said the two most important words in the act are "independence" and security." He added, "We intervened because we believe that EPA's decision regarding the mandated volume of domestic renewable fuels furthers the intent of Congress."

Manning Feraci, vice president, Federal Affairs, National Biodiesel Board, said "This wholly validates the U.S. biodiesel industry's legal position and sends a clear, unambiguous signal to the marketplace that the common-sense renewable goals established in the RFS2 program will be met."

The EPA finalized mandated volumes for 2011:

Cellulosic biofuel: 6.6 billion gallons

Biomass-based biodiesel: 800 million gallons

Advanced biofuel: 1.35 billion gallons

Renewable fuel: 13.95 billion gallons

These volumes are the minimum that must be consumed in the U.S. in 2011. EPA reports that "insofar as excess volumes of cellulosic biofuel or biomass-based diesel are consumed, they will count towards the advanced biofuel and total renewable fuel volume requirements."

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