EPA Administrator Stephen Johnson has denied Texas Governor Rick Perry’s petition for relief from the Renewable Fuel Standard (RFS). The RFS mandates production of 9 billion gallons of biofuels for 2008. Governor Perry sought to have that amount reduced by 50%.

After considerable study by the agency, and review of over 15,000 public comments, they determined that the RFS does not pose the substantial hardships claimed by the petitioners. According to the agency, the petitioners would have to prove that the mandate itself would cause the harm, not merely that it contributes to the economic harm at issue. “EPA determined that the weight of all of the evidence indicates that implementation of the RFS would have no significant impact in the relevant time frame (the 2008/2009 corn season), and the most likely result is that a waiver would have no impact on ethanol production volumes in the relevant time frame, and therefore no impact on corn, food, or fuel prices.”

Administrator Johnson stressed in his telephone conference that the review was very narrow based on the criteria listed in the petition, which may leave the door open to future challenges to the RFS mandate that are framed in a more broad fashion.  Beginning in 2009, “any person subject to the requirements of the RFS” may petition for a waiver, whereas only a state governor could petition in 2008.

If the petitioners choose to appeal the EPA’s waiver denial, they will have sixty days from the date the decision is published in the Federal Register.  The Notice of Decision states that this is a “final action of national applicability” meaning that a challenge must be brought in the Court of Appeals for the DC Circuit.

For further information about this topic, please contact Akin Gump.