The National Wildlife Federation recently filed suit against the US Environmental Protection Agency (EPA) in federal court in Washington, DC, charging that the EPA is failing to enforce laws that protect imperiled grasslands from destructive and unnecessary agricultural development related to the production of biofuels.
At issue is the EPA’s adoption of an aggregate compliance approach, which, the NWF charges, “allows fragile and federally protected ecosystem like America’s grasslands to be destroyed for biofuels production”. NWF accuses the EPA of violating grasslands protection inherent in the Renewable Fuel Standard.
Plowing up our nation’s last remnants of native grasslands to grow more corn for ethanol is like burning the Mona Lisa for firewood. We are shocked that the EPA would choose to ignore this statutory prohibition, further exposing grassland birds—the fastest declining group of birds in North America—to further habitat destruction.—Julie Sibbing, Director of Agriculture programs for the National Wildlife Federation
Background. Changes to the Renewable Fuel Standard Program (RFS2) were published in the Federal Register on 26 March 2010 and became effective in July 2010. On 24 May 2010, Friends of the Earth, World Wildlife Fund, the National Wildlife Federation, and the Clean Air Task Force submitted petitions for reconsideration of the renewable biomass aggregate compliance approach finalized in the RFS2.
EPA denied the petition in February 2011. EPA established a baseline level of qualifying domestic agricultural land that qualifies under EISA for the production of crop and crop residue, and only requires individual record keeping and reporting if that baseline level of agricultural land is found through an annual EPA determination to have been exceeded (aggregate compliance). EPA had identified this aggregate land approach in the NPRM (Notice of Proposed Rulemaking) as a possible supplemental investigatory tool for verifying compliance with renewable biomass requirements under the RFS2 standard, but determined in the final rule that it provided a reasonable implementation approach standing alone, and was superior to the feedstock baseline approach.
The proposed aggregate feedstock approach was modified for several reasons. Under an aggregate approach that establishes a baseline level of feedstock production, feedstock volumes would have to be feedstock specific, which poses a number of logistical problems for an aggregate approach. It would be difficult to determine whether an exceedance of a feedstock baseline represented simply an increase in yield or the growth of the feedstock on existing agricultural lands that had previously been devoted to other agricultural purposes. By changing the focus of the aggregate approach to the number of acres used for agricultural purposes, EPA was able to shift the inquiry more closely to the issue in question—whether new lands may be introduced for growth of biofuel feedstocks. The approach allows increases in yields and shifting in acres of land devoted to growing various agricultural products without presenting a “false positive” result.—EPA response to the petition
In denying the petition, EPA said that:
The petitioners should have raised their concerns regarding the aggregate compliance approach during the comment period, but failed to do so;
Petitioners have not asserted grounds for their objections that arose only after the public comment period; and
Petitioners’ assertions regarding the aggregate compliance approach are not of central relevance to the outcome of the RFS2 rule.