Farm or Fossil: The Battle for the RFS Rages On
For those of us following biofuels, there was an interesting bit of news last week that barely registered in the press outside of Houston and Des Moines: A U.S. Court of Appeals in Denver handed down a ruling forcing the U.S. Environmental Protection Agency (EPA) to re-examine three small-refinery exemptions granted for the 2016 compliance year within the Renewable Fuel Standard (RFS) regulation. You’d be forgiven for thinking that this ruling impacts something esoteric with limited impact on your daily life. Few Americans know about the RFS at the heart of this court battle, but there is a war being waged over this law between farmers and oilmen. It’s an intraparty slugfest pitting longtime allies against each other and impacting everything from the price of corn to the price you pay for gas at the pump.
Some background: The RFS was adopted in the mid 2000s, with the price of oil spiking and unrest in the Middle East causing concerns at home about domestic energy security. The name of the legislation enshrining the standard in law, the Energy Independence and Security Act of 2007, left little doubt to the motivations behind the policy: The law was written to jumpstart domestic biofuels production to help lessen America’s addiction on foreign oil. Signed by an oil state Republican, the law passed with just eight ‘no’ votes in the Senate. Republicans and Democrats alike cheered as this comprehensive program to support renewable biofuels became the law of the land.
U.S. farmers, primarily in midwestern states with a history of voting red, cheered as well. The program set mandates for the production of multiple biofuels, but primarily focused on ethanol and biodiesel, which are made from corn. Although more expensive per unit of energy than their fossil brethren, these fuels were literally home-grown, and the RFS supported their use by mandating blend volumes of biofuels in the U.S. fuel supply. With this mandate to refiners in place, corn prices surged, investments flowed to midwestern states, and an entire economy built around ethanol production was born. U.S. ethanol production rose from 1.63 billion gallons in 2000 to 13.5 billion gallons in 2010 and continued to grow from there as the U.S. Department of Energy (DOE) increased the blending mandate every year through 2018.
The program, however, was disliked by the oil companies, as it required building the infrastructure necessary to incorporate this new feedstock into their products. This new feedstock was also generally more expensive, raising prices for downstream consumers. To help lessen the blow, the RFS included some carvouts for the oil and gas industry. In particular, small refiners, concerned about their ability to afford necessary plant upgrades to compete with larger competitors under the mandate, were provided a pathway to secure waivers to the mandate. As drafted, the legislation required the DOE to account for the volumes lost from these waivers when setting annual targets, effectively shifting the obligations from the little guys to the big guys. Few waivers were granted, and large oil and gas companies, despite continued lobbying against the program, generally fell in line and followed the program requirements.
And then came President Trump. Unaware of the delicate politics involved, the Trump Administration immediately upon arrival began undermining the program. The number of waivers granted skyrocketed from under 10 to over 30 in two years. Large refineries, never intended to be excluded from the program, were given waivers as well. And the DOE, when setting its mandates, ignored the missing gallons, effectively reducing demand for biofuels by billions of gallons with the stroke of a pen.
The Trump Administration is generally unconcerned about public blowback to its various deregulation activities, but in this case their actions didn’t just #OwnTheLibs, they triggered midwestern Republicans by undermining a significant portion of their economy. Chuck Grassley (R-IA) noted that the EPA “screwed us.” The powerful farmer’s lobby unloaded on members of Congress and administration officials alike.
Quite accidentally, Trump found himself under attack from his right flank. A full blown crisis was born, no environmentalist lobby needed. Looking to find a compromise with Big Ag and Big Oil, the Administration spent the fall providing promises to both sides and promptly undermining their own efforts. Trump promised farmers at least 15 billion gallons of ethanol mandates for 2020, much to farmers’ relief. Oil groups complained bitterly about Trump reneging on his deregulation promises. When the EPA released the associated rule, it failed to live up to the hype; agricultural groups were incensed as farmers spoke openly of betrayal and deceit.
Which brings us to the news of last week from a quiet courthouse in Colorado. In its ruling, the Court of Appeals found that the language of the RFS required waivers to be granted only as an extension of waivers granted prior to 2010. Such an interpretation could have profound impacts on the waivers granted under Trump, most of which had no precedent before his time in office. If upheld on appeal (and given this ruling came from an appeals court, it would seem the remaining path for re-review is limited), this decision would open the door to widespread invalidation of the waivers granted under Trump. Such a decision would be highly impactful because it would solidify the foundations of the RFS program, severely curtailing the ability of the White House to undermine the program, and would ultimately be a big win for Big Ag.
It’s just the latest battle in this ongoing war. With billions of dollars and federal elections at stake, expect more shots to be fired. Get your (pop)corn ready.