API: EPA Lacks Authority to Change Biodiesel Mandates

‘The Clean Air Act expressly compels EPA to provide a 14-month lead time when modifying the mandate,” Greco wrote. ‘Pursuant to the Clean Air Act’s unambiguous language, EPA was required to have finalized any increase to the 2014 biomass-based diesel mandate by October 31, 2012. Furthermore, political gamesmanship has delayed the 2014 requirements, and as a result EPA’s authority to increase the 2016 biomass-based diesel standard is soon to pass.”

Greco said the administration is considering an increase to the biomass-based diesel standard for the 2014 compliance year for political reasons, even though most of the year has already passed.

 ‘Congress establishes statutory deadlines for a reason,” he said. ‘They provide certainty to the regulated industries. Here, Congress recognized the fundamental difference in setting the biomass-based diesel standard and the other biofuel standards by providing the 14-month lead time to give obligated parties sufficient notice to make the necessary operational, logistical, and investment decisions to meet any increase in the biomass-based diesel standard.

 ‘Because this deadline has passed by almost two years, the Clean Air Act prohibits EPA from increasing the biomass-based diesel requirement from the 2013 biomass-based diesel standard of 1.28 billion gallons.”