If You Don’t Like It, Sue

Lawsuit against RFS2 thrown out.
By Holly Jessen | February 15, 2011

Efforts to thwart the renewable fuel standard (RFS2) failed in late December when a panel of three judges denied a petition for review. "This is an important legal development that upholds a critical pillar of a national energy policy that is intended to wean the United States off foreign sources of fossil fuels," said Growth Energy CEO Tom Buis. Growth Energy joined the National Biodiesel Board as an intervener in the case.

In a 40-page ruling, the U.S. Court of Appeals for the District of Columbia ruled that the U.S. EPA correctly carried out its duties required by the Energy Independence and Security Act of 2007. The National Petrochemical and Refiners Association and the American Petroleum Institute had filed the lawsuit in March and argued the issue on Sept. 17. The groups claimed RFS2 was impermissibly retroactive and violated statutory lead time and compliance provisions. In addition, the groups said it violated statutory requirements, setting separate biomass-based diesel volume requirements for 2009 and 2010.

Not surprisingly, API expressed disappointment. "EPA failed to meet its statutory deadlines, and in March of 2010, finalized a rule that regulated refiners and importers for the previous year," said Patrick Kelly, senior policy advisor. "This is a disappointing decision. Setting requirements to blend certain biofuels for the previous year is a legally questionable retroactive action." 

—Holly Jessen