The proposed lowering of the amount of ethanol to be blended into the country’s fuel supply raises the possibility the U.S. government could face a lawsuit for breaking the law. In this article from Ethanol Producer Magazine, comments from Iowa Attorney General Tom Miller indicates the Environmental Protection Agency’s (EPA) to lower the Renewable Volume Obligations (RVOs) for ethanol violate Congress’ original intent.
Section 211(o)(2)(B) of the Clean Air Act expressly states the RFS mandated volume of renewable fuel to be included in gasoline: The total for 2014 is 18.15 billion gallons. However, section 211(o)(7)(A)(ii) provides a “general waiver” authority under which the EPA may modify these amounts if “there is an inadequate domestic supply.”
Iowa Attorney General Thomas J. Miller submitted comments to the proposal outlining several objections to EPA’s interpretation of the waiver authority, based on the well-known Chevron test used by the courts to assess a federal agency’s interpretation of a statute: 1) If the statute is clear, the court must enforce the law’s unambiguous language; and 2) If the statute is not clear, the agency’s interpretation must be permissible.
Miller argues that the statute unambiguously prohibits EPA from considering the distribution capacity of blended fuel. Under section 211(o)(7)(A)(ii), the term “supply” unambiguously refers to the “quantity of renewable fuel” required under section 211(o)(2). Therefore, in order to reduce the RFS for total renewable fuel, EPA must find that there is an “inadequate domestic supply” of “renewable fuel.”
Miller goes on to say the EPA’s interpretation of what it is allowed to do is not permissible, and he points out that Congress’ intent when passing the RFS was “to move the United States towards greater energy independence and security” and “to increase the production of clean renewable fuels.” The article also points out that Miller is pretty successful when leading multistate litigation.