EPA proposes to complete RFS anti-backsliding study by March 2020

By Erin Voegele | February 25, 2019

On Feb. 22, the U.S. EPA published a notice in the Federal Register announcing a proposed consent decree that would require the agency to complete an anti-backsliding study on the Renewable Fuel Standard by March 30, 2020. A public comment period on the notice is open thorugh March 25.

According to information released by the EPA, the anti-backsliding study will consider whether the renewable fuel volumes required under the RFS by the Clean Air Act adversely impact air quality as a result of changes in vehicle and engine air pollutant emissions.

The agency also said the proposed consent decree would partially resolve a lawsuit filed by the Sierra Club on Oct 19, 2017 in the U.S. District Court for the District of Columbia that sought to compel the agency to complete the study. According to information released by the EPA, that lawsuit alleges that the U.S. EPA administrator failed to perform a non-discretionary duty to assess and report to Congress on the environmental and resource conservation impacts of the RFS, failed to complete the required anti-backsliding study to determine whether the vehicle and engine air pollutant emissions changes resulting from the RFS adversely impact air quality, and failed to promulgate fuel regulations to implement appropriate measures to mitigate any such adverse impacts or make a determination that such regulations were unnecessary.

Under the terms of the proposed consent decree, the EPA said it has agreed to postpone further proceedings on a schedule for any follow-up regulatory response until it has completed the study. The EPA said the regulatory response will be either a rulemaking to implement measures to mitigate any adverse impacts discovered by the anti-backsliding study, or a determination that such a rulemaking is unnecessary.

The Energy Independence and Security Act of 2007, which established in the RFS in its current form, included a provision requiring the anti-backsliding study to be completed. Under EISA, the EPA was directed to complete the study within 18 months of the program being enacted.

In August 2016, the EPA Office of Inspector General published a report finding the agency’s Office of Research and Development had not complied with certain statutory RFS reporting requirements. That anti-backsliding study was among the requirements listed in the report. At that time, the EPA said it planned to complete the anti-backsliding study before the end of 2024.

The EPA has opened a 60-day comment period on the proposed consent decree. Comments are due March 25 and can be filed online at www.regulations.gov under Docket ID number EPA-HQ-OGC-2018-0818. Additional information is available on the Federal Register website.