EPA opens comment period on proposed consent decree for 2023 RVOs

By Erin Voegele | May 24, 2022

The U.S. EPA on May 23 opened a 30-day public comment period on a proposed consent decree related to a legal challenge filed against the agency by Growth Energy that would require the EPA to issue proposed 2023 Renewable Fuel Standard renewable volume obligations (RVOs) by Sept. 16, 2022, and issue a final rule setting 2023 RVOs by April 28, 2023.

Growth Energy filed a complaint in the U.S. District Court for the District of Columbia on April 29 alleging that the EPA failed to promulgate a rule establishing the 2023 RVOs by the statutory deadline of Oct. 31, 2021.

The RFS, first established by the Energy Policy Act of 2005, was expanded under the Energy Independence and Security Act of 2007. The expanded RFS program established statutory blend levels through 2022, which could be adjusted by the EPA under certain conditions. In 2023 and later years, the agency is given more discretion in setting the annual RVOs.

For compliance years through 2022, the EPA was required by statute to set the final RVO for a given year by Nov. 30 of the preceding year. The agency, however, often missed that deadline. The agency has still not finalized the RVOs for 2021 and 2022 but is expected to do so by June 3 under a similar consent decree approved by the court in April. That consent decree is related to a separate legal challenge filed by Growth Energy.

For compliance years 2023 and later, the statute requires EPA to set final RVOs for a given year at least 14 months prior to the calendar year in which it is to take effect. For 2023, that deadline would have been Oct. 31, 2021. In setting the RVOs for 2023 and later years, the EPA is required to coordinate with the U.S. Department of Energy and the USDA and take into consideration six statutory factors, including environmental, economic and energy security, according to Growth Energy.

Public comments on the proposed consent decree can be filed online at www.Regulations.gov under Docket ID No. EPA-HQ-OGC-2022-0437 through June 22. Additional information is available on the Federal Register website