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National Biodiesel Board v EPA

ELR Citation: 46 ELR 20194
Nos. 15-1072, (D.C. Cir., 12/20/2016)

The D.C. Circuit dismissed as untimely a U.S. biofuel trade group’s lawsuit challenging EPA's decision to allow a group of Argentine biofuel producers to use certain recordkeeping practices in connection with sales of their product in the United States, and challenging the 2010 rule under which the Argentine application was granted. The Renewable Fuel Standard (RFS) program requires transportation fuel to include specific amounts of “renewable fuel” made from planted crops or other alternatives to traditional fossil fuels. In 2007, Congress amended the program to significantly increase the use of renewable fuel. But, recognizing that demand for renewable fuels might spur land use changes such as deforestation, Congress mandated that renewable fuel from planted crops come from agricultural land already cleared or cultivated prior to 2007. Under the 2010 rule, producers and importers have three options to verify that crops used in renewable fuel production come from qualified land. In this case, the Argentine producers relied on the “alternative tracking requirement,” which allows a foreign renewable fuel producer to participate if an independent third party conducts a comprehensive program of annual compliance surveys. EPA ultimately approved their application in 2013. The trade group challenged the viability of enforcing the alternative tracking program abroad, claiming that EPA should provide the public with an opportunity for notice and comment before taking any action. But the group lacks standing. EPA did not “reopen” the rule when it reviewed the application. Nor did EPA err in approving the application. EPA’s actions were proper both procedurally and substantively, and its decision comports with Agency regulations and rests upon the kind of highly technical judgments on which it is owed great deference.