Senators Disagree Over Indirect Land Use Considerations for Renewable Fuels

The Energy Independence and Security Act of 2007 requires EPA to consider the indirect land-use changes, such as switching of land from forest to crop land, that would result from biofuel production.  The law requires the nation’s fuel supply to include 36 million gallons of renewable fuels such as ethanol by 2022.  In order to be considered a “renewable fuel”, the fuel must reduce greenhouse gas emissions through its entire life cycle by 20% relative to gasoline.  In October, 2008, EPA sent a draft proposed rule to the Office of Management and Budget to implement the renewable fuel standard (“RFS”) for interagency review.  The Obama administration pulled the draft proposal back from OMB review, but resubmitted it on February 26, 2009.  In the process, an issue as to whether to consider indirect land use changes has arisen.

 

            The Renewable Fuels Association and other ethanol industry groups maintain that there is inadequate scientific foundation for an analysis of the increase in greenhouse emissions resulting from indirect land-use changes.  Environmental groups have insisted that these increases be considered.

 

            A group of 12 farm state senators wrote EPA Administrator Lisa Jackson in March urging EPA to refrain from considering indirect changes to land use when calculating greenhouse gas emissions from biofuels as part of the renewable fuels proposal.  They pointed out that some biofuels such as soy-based diesel may not qualify as a renewable fuels and other fuels may follow suit.  The senators adopted the ethanol industry’s position that the method of calculating increases in greenhouse emissions from land-use changes was complex and not reliable.  They also indicated that resultant rulemaking confusions “could seriously harm our U.S. biofuels strategy by introducing uncertainty and discouraging future investments”.  In early April, Rep. Edward Markey (D-MA), Chairman of the House Select Committee on Energy Independence and Global Warming, and two other House democrats warned the Obama administration that an Environmental Protection Agency rule on renewable fuels will not conform to the law if it does not consider indirect greenhouse gas emissions from land-use changes resulting from biofuels.

            This comes at a time when industry participants have begun to recognize that the 2022 goal cannot be met at current levels of fuel consumption so long as the amount of ethanol that can be added to fuel is limited to 10%.  On April 21, EPA recognized an application for the waiver of the 10% limit by volume on ethanol filed by an environmental group and 54 ethanol manufacturers.  The waiver application seeks to allow up to 15% ethanol by volume (E15).  EPA has requested comments on this waiver on or before May 21, 2009.  74 FR 18228.  EPA has 270 days to act on the application.  Among the considerations are whether this increase will harm engines and fuel storage and distribution equipment.

 

            In similar news, the congressional budget office reported during the second week of April that increased use of ethanol was responsible for about 10 – 15% of the rise in food prices from 2007 to 2008, but reduced greenhouse gas emissions from the transportation sector by less than 1%.

 

This article was authored by James R. Snyder, Jackson Kelly PLLC. For more information on the author see here.