Tuesday, January 29, 2013

Courts Overturn EPA Rules

Cellulosic Biofuel Mandate

The U.S. Court of Appeals for the District of Columbia overturned Environmental Protection Agency (EPA) rules setting quotas for cellulosic biofuels use.  These quotas began after passage of a law in 2007 to encourage “advanced” biofuels.

Production of cellulosic biofuels has been slower than projected.  The American Petroleum Institute, which brought the suit against the EPA, argued that gasoline refiners were required to meet a requirement they had little control over meeting.  The cellulosic biofuel producers were getting all the carrots; the gas producers were getting all the sticks.

The court more or less agreed.  They found that the quota was not consistent with likely Congressional intent.  In addition, the rule differed from other environmental regulation in that the group regulated, refiners, was not the group in control of the technology the agency wanted to develop, producers of cellulosic biofuels.

This is not a complete overturn of quotas for advanced biofuels use.  There are more widely available non-cellulosic biofuels that meet the legal definition of advanced biofuels that the agency can substitute to keep up the quota.

Stormwater Is Not a Pollutant

EPA also lost a case in federal district court related to stormwater discharges.  EPA rules established in 2011 limited stormwater discharges into Accontic Creek, a tributary of the Potomac RiverVirginia sued claiming that EPA only has the authority to limit pollutants, not the discharge of stormwater itself.  The court agreed.

So far, it is not common for EPA to regulate stormwater discharge as a surrogate for setting limits on the pollutants in stormwater.  They have used the strategy only in Virginia and Missouri.

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