Attorneys for EPA and biogas producers faced skeptical questions from a panel of D.C. Circuit Court of Appeals judges in arguments today involving EPA’s authority to regulate the industry under the Renewable Fuel Standard.
The Coalition for Renewable Natural Gas is challenging provisions in the RFS “set rule” issued last year that CRNG attorney Jonathan Ellis said impose “onerous” new regulatory requirements on biogas producers.
“In the reforms, EPA almost completely rewrote the regulatory program for [renewable natural gas],” attorney Jonathan Ellis said.
“It rewrote the rules for how parties register, test, record and report their activities, and how they create and separate the credits for renewable fuels, called RINs, all to guard against the potential for fraud,” even though EPA did not cite any instances of fraud, he said.
“In several respects, however, the biogas reforms went well beyond the regulatory requirements the EPA imposes on the creation of other renewable fuels and beyond any reasonable fraud protective measures,” he told the court.
In essence, the renewable gas coalition is arguing that the RFS does not grant EPA the power to regulate feedstock producers who aren’t directly involved in the RIN generation process, whom he described as “dairy farms, cities and counties operating landfills, and municipal wastewater facilities."
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Circuit Judge Patricia Millett, however, asked whether it matters who gathers information from the biogas producer, since EPA could just shift the burden to renewable fuel producers.
“If they could say to you, renewable fuel producer, ‘Don't let anything into your pipes and don't transport anything down to a pipeline or a truck, or whatever you're using, that hasn't first been verified by a biogas producer who does testing, auditing and all the other compliance provisions you are referencing. If they can do that, then what's the difference?”
Ellis said that if EPA did that, CRNG likely would be back in court.
Millett also closely questioned Justice Department attorney Kimere J. Kimball about the specific RFS authority cited by EPA to regulate biogas producers, noting the RFS identifies “obligated parties” as “refineries, blenders, distributors, and importers.
Kimball said the law, the definition of renewable fuel “and the requirement that EPA ensure … that renewable fuel is produced from qualifying biomass requires EPA to regulate renewable fuel producers.”
If EPA were only able to regulate the obligated parties, “then there would have been no reason to include any requirements on biogas at all, because biogas never gets to a refiner. Biogas is put onto a renewable natural gas pipeline, it's taken off by a compressed natural gas producer and compressed directly into what goes into a natural fuel vehicle.”
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