Senators question Wehrum on his support for the RFS

By Erin Voegele | October 04, 2017

On Oct. 4, the Senate Committee on Environmental and Public Works held a hearing to consider President Trump’s nominations to fill several key government posts, including those at the U.S. EPA. The Renewable Fuel Standard was among the topics discussed during the hearing.

In September, Trump nominated William Wehrum to serve as the assistant administrator for the Office of Air and Radiation at the EPA. The RFS is one of the programs managed by the EPA’s Office of Air and Radiation.

Wehrum previously served for two years as the acting assistant administrator for air and radiation at the EPA. He currently serves as partner and head of the administrative law group at Hunton & Williams, where his practice focuses on air quality issues, including regulatory development and related litigation, compliance counseling and enforcement defense, legislative advice, and permitting.

During the hearing, Sen. Joni Ernst, R-Iowa, extensively questioned Wehrum on his support for the RFS.

EPA Administrator Scott Pruitt has repeatedly said he will uphold the law with respect to the RFS, Ernst said. However, last week, the agency issued a notice of data availability (NODA) proposing to lower the annual biodiesel blending targets by the number of gallons imported, while still allowing those imported gallons to generate renewable identification number (RIN) compliance credits, she said. In addition, Ernst indicated the EPA is also considering a policy to allow exported ethanol gallons to qualify for compliance credits.

“Both of these moves are contrary to the spirit of the Renewable Fuel Standard and would undermine the program,” Ernst said, and asked Wehrum if he will pledge to uphold the spirit and the letter of the RFS.

In response, Wehrum said he shares Pruitt’s commitment to the rule of law. “The RFS is incorporated in the Clean Air Act, and my goal, if confirmed, is to understand the law and implement the law,” he said.

When asked by Ernst if he believes major regulatory actions that change the underlying operation of the RFS should be subject to a full notice and comment period, Wehrum said yes. “If the RFS regulations are changed, it should be done through notice and comment rulemaking,” he added.

Ernst also addressed the EPA’s proposal to reduce the cellulosic biofuel renewable volume obligation (RVO) for 2018 by 150 million gallons despite evidence of growing production and demand for the second-generation biofuel. “If confirmed, can you commit to ensuring that the cellulosic RVO numbers are based on an objective analysis of expected production capability?” she asked.

In response, Wehrum spoke of the complexities of the RFS program. “The RFS is a very complex program, and there are extensive provisions within the law that govern how it should be implemented, and even more extensive regulations that EPA has adopted,” he said. “So, I have to say I know a bit about the RFS. I don’t know everything about the RFS. So, I said this before, but I really mean it. If confirmed, part of what I need to do is fully understand the program and part of what I need to do is fully understand your concern, and I commit to you that I will do that senator.”

In addition, Ernst questioned Wehrum on his commitment to issuing annual RFS RVOs in a timely manner. “If confirmed, I will do everything I can to make sure we stay on schedule,” Wehrum said. “I understand there have been concerns with that in the past, and the EPA has had difficulty keeping up with the schedule. So, if I’m confirmed, I’ll do everything I can to try to keep us on track.”

Sen. Deb Fischer, R-Neb., also questioned Wehrum on his support for the RFS, and asked if he will commit to upholding the RFS.

In response, Wehrum discussed the fact that the there is room for discretion built into the RFS. “What I do know is there is discretion built into the law for the agency and others to use to make sure the law can be implemented according to the law, but also be effective as a practical matter,” Wehrum said. “So, I understand that much of the concern is with regard to how that discretion has been implemented. And, again, I will fully commit…that if confirmed to this position I would work very closely with you to understand your concerns, to understand the concerns of your constituents, and to try to implement the law as best we can.”

Wehrum also noted the intent of the RFS was to increase the use of fuels and decrease the use of oil. Energy security was clearly one of the motivating factors behind the enactment of the RFS, he added.

The hearing also addressed the nominations of Michael Dourson to serve as assistant administrator for the Office of Chemical Safety and Pollution Prevention at EPA, Matthew Leopold to serve as assistant administrator for the Office of General Counsel at the EPA; David Ross to serve as the assistant administrator for the Office of Water at EPA, and Jeffery Baran to serve as a member of the Nuclear Regulatory Commission.

A video of the hearing can be viewed on the committee website.