On April 18, the National Wildlife Federation (NWF) filed a petition with the federal Court of Appeals for the District of Columbia in a challenge to EPA’s 2010 final regulation for changes to the renewable fuel standard program (also known as RFS2).  In 2010, NWF had petitioned EPA asking the agency to reconsider the final regulation, a request which EPA denied.

The Energy Independence and Security Act of 2007 mandates that under the RFS2 up to 36 billion gallons of renewable biofuels be used by the transportation sector in 2022.  The Act also imposes limits on the greenhouse gases that can be emitted throughout the full lifecycle of each type of biofuel specified in the Act.  Greenhouse gas impacts from land conversion activities for biofuel feedstocks are included in the full lifecycle analysis.  Congress also required in the Act that the biofuels be produced from “renewable biomass” feedstocks and imposed restrictions on the types of land on which feedstocks eligible for the RFS2 can be produced.  A key requirement is that planted crops and crop residue must be harvested from “agricultural land cleared or cultivated at any time prior to the EISA’s enactment that is either actively managed or fallow, and nonforested.”  Biomass from agricultural land cleared or cultivated after the EISA enactment cannot be used as biofuel feedstock that meets the RFS2 requirements.

Under the proposed rule for the RFS2, EPA would have required producers of the feedstocks to verify that the feedstocks meet the requirements of “renewable biomass” under the Act, including the restrictions on harvesting feedstocks on agricultural land cleared or converted after EISA’s enactment.  In the final rule, EPA dropped this proposal and provided a new approach it termed “aggregate compliance” for domestic biofuel feedstocks from crops or crop residue.

Under this approach, USDA determined for EPA the total amount of agricultural land in 2007 as a baseline.  EPA then declared that feedstocks from planted crops and crop residues will be considered to be consistent with the definition of renewable biomass unless the agricultural land baseline in 2007 is exceeded.  EPA took this approach based on its assumption that renewable biofuel demands, stimulated by the EISA and other incentives, and other demands for crop production will not require clearing and cultivation of additional land.  In its petition to EPA for reconsideration of the final rule, NWF provided documentation to show that EPA’s assumption is not correct.

In its petition to EPA, NWF contends that EPA’s aggregated compliance approach will deny the agency from obtaining information that it needs to meet two key requirements of the EISA.  First, EPA will not know if uncultivated land is being cleared and cultivated for biofuel production.  The EISA requires that EPA must be able to make this determination.  Second, EPA will not be able to make accurate measures of GHG emissions from different types of biofuels, as required by the Act, if EPA does not have accurate information on land conversion activities that can result in significant releases of soil carbon and generate other GHG emissions.

The NWF is particularly concerned that the incentives of the RFS2 for renewable biofuel not result in the conversion of native grasslands and prairies.  In 2010, NWF published a report by the University of Michigan, entitled Corn Ethanol and Wildlife.  The report documented destruction of these habitats in the Prairie Pothole region in response to government incentives for one type of biofuel, ethanol produced from corn starch as a feedstock.  The report also documented decrease of bird populations dependent on these habitats.  NSAC policy associate Greg Fogel co-authored the report as a student at the University of Michigan.