Lawsuits against EPA have challenge ahead

By Holly Jessen | May 21, 2010
Posted June 10, 2010

Groups like the Clean Air Task Force and the Friends of the Earth are likely going to have a tough time convincing the courts to side against the U.S. EPA, according to Graham Noyes, an attorney for Stoel Rives LLP, who focuses on representing biofuels companies. The allegations drive at the agency's methodology for assessing greenhouse gas (GHG)—and it's really the first time a U.S. agency has tried to do that in this kind of comprehensive manner. "This was obviously a very controversial issue during the rulemaking, it's technically very complicated," he told EPM. "I think, so long as the EPA is making good faith efforts to uphold the statutes, it's going to be upheld."

Together, the Clean Air Task Force and Friends of the Earth filed a lawsuit against the EPA's Renewable Fuel Standard (RFS2) in the U.S. Court of Appeals and petitioned the EPA to reconsider its findings on land conversion. The groups claim the EPA used outdated data and fail to account for a 2009 USDA study that concluded that total agricultural area will increase as a result of the RFS2.

Separately, Clean Air Task Force also filed a legal challenge to the EPA's rule and petitioned them to reconsider two elements. First, that the EPA reconsider and account for the "global rebound effect," which the group described as displacing gasoline with biofuels, which lowers petroleum demand, followed by lowered prices, which then leads to both increased consumption of oil and higher GHG emissions in other countries. Secondly, the group petitioned that the EPA reconsider its findings that RFS2 will not cause any natural ecosystems to be converted into farmland.

Overall, both groups take issue with the fact that the EPA determined that all types of biofuels—even corn ethanol—achieve emissions reduction requirements set by Congress.

It's up to the petitioner, Noyes said, to prove their claims. That's going to be difficult, considering all the work the EPA put into the RFS2. In addition, the agency is venturing into territory where there isn't any firm answer on what is correct, because—again, this is something very new. To some degree, he pointed out, the lawsuits seem to blame the EPA for a policy decision made in the 2007 Energy Independence and Security Act.

One remarkable part about Clean Air Task Force's petition is the so-called global rebound effect. "Essentially, that argument assigns a penalty for reducing the use of fossil fuel," he said. "It's somewhat difficult to see how the U.S. can do anything to reduce GHG emissions, if it penalizes itself when it is successful."