On December 21, 2010, the U.S. Court of Appeals for the D.C. Circuit upheld the lower court's decision and handed a win to the Environmental Protection Agency (EPA) in actions brought by the National Petrochemical & Refiners Association (NPRA) and the American Petroleum Institute (API) (Nat'l Petrochemical & Refiners Ass'n v. EPA, D.C. Cir., No. 10-1070, consolidated with No. 10-1071).

Congress' 2007 Energy Independence and Security Act (EISA) expanded the renewable fuel provisions of the Energy Policy Act of 2005 by increasing the renewable fuel volume requirement for U.S.-sold gasoline and added volume requirements for advanced biofuels, biomass-based diesel and cellulosic biofuel. As a result of these changes, the EPA revised its 2005 Act regulations.

According to the EPA, the new EISA directives led to the EPA's inability to meet the deadline for establishing 2009 volume requirements. Instead, the EPA set a combined 2009/2010 biomass based diesel standard in its final revised regulation on February 3, 2010, which was posted on its website that day and published as a Final Rule in the March 26, 2010, Federal Register. In the Final Rule, obligated parties — refiners, importers and some gasoline blenders — must demonstrate compliance with the 2010 standard by February 28, 2011. Upon publication of the Final Rule, the NPRA and API brought suit, challenging it as violating statutory requirements to set separate 2009 and 2010 volume requirements, as impermissibly retroactive, and as violating statutory compliance provisions and lead times.

Article authored by McAfee & Taft attorney Heidi Slinkard Brasher.