10 senators ask EPA to waive 2021 RFS

TAGS: ethanol
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RFA responds: 'These senators are unashamedly encouraging EPA to ignore established case law.'

On Oct. 21, a group of oil-state senators submitted a letter to EPA Administrator Andrew Wheeler asking him to waive the 2021 RFS standards to prevent increased use of renewable fuels and to “account for the unprecedented collapse in demand for gasoline, diesel, and jet fuel.” Jet fuel is not subject to renewable fuel blending requirements under the RFS, RFA noted.

In addition, the senators, led by Sen. Shelley Moore Capito, R-West Virginia, ask Wheeler to not reallocate prior year obligations.

"Any increase in blending volumes mandated under the RFS, especially an expansion of the 2021 RVO, would ultimately impact American consumers forced to bear the associated costs, creating another drag on a national economy that is in a state of fragile recovery from the depths of the pandemic. It is essential that you use all available statutory authorities to see to it that these unnecessary impacts are avoided,” the senators wrote. Joining Moore Capito in signing the letter were Sens. Mike Crapo, R-Idaho; John Barrasso, R-Wyoming; James Risch, R-Idaho; Mike Lee, R-Utah; Michael Enzi, R-Wyoming; John Cornyn, R-Texas; Roger Wicker, R-Mississippi; Pat Toomey, R-Pennsylvania, and Ted Cruz, R-Texas.

Responding to the letter, Renewable Fuels Association President and CEO Geoff Cooper said, “It looks like the focus of the oil industry’s RFS avoidance strategy is shifting from ‘small-refinery waivers’ to ‘all-refinery waivers.’ But this letter from a handful of refinery-state senators comes nowhere close to satisfying the high standard required to grant a general waiver of the RFS volumes—and EPA knows that. By asking Administrator Wheeler to undercut the 2021 RFS standards to avoid the so-called ‘blend wall,’ these senators are unashamedly encouraging EPA to ignore clear-cut court decisions and established case law.”

In 2017, the U.S. Court of Appeals for the D.C. Circuit ruled that EPA had illegally abused its general waiver authority by attempting to lower 2014-2016 RFS volume requirements below the so-called “E10 blend wall,” despite ample availability of renewable fuels to meet the statutory volumes. The court found that the statute “…does not allow EPA to consider…demand-side constraints” when deciding general waiver requests. Yet, that is exactly what the oil-state Senator letter recommends, Cooper said.

The statute also requires petitioners to conclusively demonstrate that compliance with the RFS would cause “severe harm” to the economy of a state, region, or the country, Cooper added. “This flimsy letter makes no such demonstration,” Cooper said. “Instead, the senators cite COVID-19 as the source of the economic challenges facing the refining sector. But the financial hardship caused by COVID-19 is not unique to the refining sector; the ethanol industry and farmers were hit even harder by the pandemic and are still struggling to recover. All Americans are still hurting from the impacts of COVID-19, but the refiners are opportunistically using the pandemic as an excuse to pursue their long-term objective of tearing down the RFS.”

Producers of renewable fuel have lost more than 4 billion gallons of RFS requirements in the past three years due to small refinery exemptions, and EPA has not complied with the D.C. Circuit Court’s 2017 order to restore 500 million gallons of illegally waived volume from 2016.

“Enough is enough. EPA should immediately reject this attempt to further undermine the RFS with unjustifiable and unlawful waivers,” Cooper said. “The senators’ letter should go straight to EPA’s dumpster, which is already littered with other baseless waiver petitions and ridiculous RFS complaints from oil state politicians and refiners.”

Source: RFA, Office of Sen. Shelley Moore Capito
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