Food v. Fuel: Are Legal Attacks on the Renewable Fuel Standard Just a Bunch of Empty Calories?

Vol. 28 No. 2

Ms. Broome, a partner at Katten Muchin Rosenman LLP in Washington D.C., and the San Francisco Bay Area, heads the firm’s Air Quality and Climate Change Practice. Mr. Esformes is an associate at Katten Muchin Rosenman LLP.

In enacting the Renewable Fuel Standard (RFS) program, Congress guaranteed a market for renewable fuels—fuel produced from plant or animal products or wastes rather than fossil fuel sources. Energy Policy Act (EPAct) of 2005, Pub. L. No. 109-58, 119 Stat. 594 (2005); Energy Independence and Security Act (EISA) of 2007, Pub. L. No. 110–140, 121 Stat. 1492 (2007). The RFS, part of the Clean Air Act (CAA), seeks to reduce U.S. dependence on foreign oil and promote domestic employment and is structured to encourage reductions in greenhouse gas (GHG) emissions from combustion of transportation fuels. Id.

The RFS requires the U.S. fuel supply to include minimum renewable fuel volumes that increase over time—eventually to 36 billion gallons by 2022. These minimum volumes are critical to achieving Congress’ goals by providing the market certainty necessary for investment in domestic renewable energy. By pure volume measure, the program has been enormously successful—U.S. ethanol production has increased 800 percent since 2000 and biodiesel production has grown from just 112 million gallons in 2005 to over a billion gallons in 2012.

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