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National Chicken Council v. Environmental Protection Agency

ELR Citation: 42 ELR 20156
Nos. 10-1107, (D.C. Cir., 07/20/2012)

The D.C. Circuit dismissed a petition challenging an EPA rule issued under the Energy Independence and Security Act of 2007 (EISA) concerning ethanol fuel. The EISA directed EPA to promulgate regulations ensuring that transportation fuel sold in the United States contains certain minimum levels of renewable fuel on an average annual basis. To fulfill that mandate, EPA established a trading program that allows for renewable fuel credits. And to qualify as a renewable fuel, the ethanol must achieve at least a 20 percent reduction in lifecycle greenhouse gas emissions. The rule at issue here provides that ethanol plants fired with natural gas and/or biomass that commenced construction in 2008 or 2009 are deemed compliant with the trading program's 20 percent greenhouse gas reduction requirement “indefinitely.” In effect, this allows qualifying ethanol plants to generate renewable fuel credits indefinitely without having to meet the Act's emissions-reduction requirement. The petitioners—members of the meat industry who purchase corn to use as animal feed—claim that this will cause qualifying ethanol plants to produce more ethanol than they otherwise would have, which, in turn, will lead to an increase in the overall demand and price for corn. But the petitioners fail to show that a favorable ruling would redress their claimed injuries. If the court were to vacate EPA’s interpretation, the only consequence for qualifying ethanol plants is that they would no longer be able to generate credits 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. The court, therefore, dismissed the petition on standing grounds.