Republican senators threaten Wheeler’s confirmation over RFS

By Erin Voegele | February 14, 2019

On Feb. 11, five Republican senators sent a letter to Acting EPA Administrator Andrew Wheeler suggesting that his willingness to bend to oil industry interests over the Renewable Fuel Standard will impact their upcoming confirmation votes.

The letter, signed by Ted Cruz, R-Texas; Pat Toomey, R-Pa.; Bill Cassidy, R-La.; John Kennedy, R-La.; and Michael S. Lee, R-Utah, requests additional information on multiple EPA actions regarding the RFS.

“As we continue to evaluate your nomination to be [EPA administrator], it is important that we have a better understanding of our views and approach to administering the RFS and the agency actions you believe could alleviate costs,” they wrote. “Without an adequate proposal to meaningfully lower the regulatory burden of renewable identification numbers (RINs), we will have serious concerns with your nomination.”

Within the letter, the senators reference EPA’s expected RFS “reset” rulemaking, and ask Wheeler whether the agency will use the rule to align applicable RFS mandates with actual conditions in the renewable fuels market, whether new volumetric ranges in the rule will take into account the ethanol blend wall, and whether new volumetric ranges will exceed the statutory cap of 15 billion gallons for conventional corn ethanol.

The letter also addresses a lawsuit in the U.S. court of Appeals for the D.C. Circuit regarding 2016 renewable volume obligations (RVOs). In setting its 2016 RVOs, the EPA used its “inadequate domestic supply” general waiver authority to waive 500 million gallons of renewable fuels. The letter asks Wheeler if agrees that the court’s decision does not require the EPA to reallocate the 500 million waived gallons. The senators also ask Wheeler if the EPA is considering reallocating those gallons or otherwise increasing future RVOs to account for them. The senators also argue that the court’s decision suggested the agency might be able to use other waiver authority to sustain its original decision to waive these volumes, and ask Wheeler what the EPA is doing analyze the use of other ways to waive that volume, such as using its general waiver authority to argue severe economic harm.

In addition, the senators address the small refinery exemptions (SRE), asking Wheeler if he intends to continue granting SREs. The letter also asks Wheeler if he supports their position that there is no direct correlation between SREs and ethanol consumption, or between ethanol consumption and RIN prices.

Finally, the senators ask Wheeler about his intentions regarding RIN market reform, specifically asking him if the EPA is considering RIN market reforms that would prevent market manipulation and speculation. The senators also want to know if the agency is considering a mechanism to directly control the price of RINs, and whether the EPA is considering allowing exported ethanol to count toward statutory RVOs.

The senators ask Wheeler to provide them with answers to their questions by Feb. 22.

President Trump formally nominated Wheeler to serve as EPA administrator on Jan. 9. Wheeler has held the post of acting administrator since July 9, 2018, following Scott Pruitt’s resignation earlier that month. On Feb. 5, the Senate Committee on Environment and Public Works voted 11 to 10 along party lines to advance his nomination. The full Senate must now consider his nomination. A date for that vote has not yet been set.