Andrew Wheeler, the administrator for the Environmental Protection Agency, said he’s been talking with small refiners to determine how to help them after a federal appeals court sharply restricted the agency’s ability to exempt them from federal biofuels requirements.
The renewable fuel standard, or RFS, has taken a “double hit,” Wheeler said Wednesday, speaking during an oversight hearing before the Senate Environment and Public Works Committee. He was referring in part to a ruling earlier this year from the U.S. Court of Appeals for the 10th Circuit that largely handcuffs the EPA’s ability to grant waivers to small refiners exempting them from the biofuels blending requirements.
Refiners have also been hit hard by a dramatic decline in the number of miles traveled by vehicles amid shelter-in-place restrictions due to the coronavirus pandemic, Wheeler said.
“We have extraordinary circumstances this year,” the EPA administrator added in response to questions from committee Chairman John Barrasso, a Wyoming Republican. “We are looking to see what relief we can provide everyone. The ethanol industry is also hurting, as well as the small refiners in particular, because of the 10th Circuit decision.”
Wheeler’s comments come as the EPA is again stuck in the middle of an escalating fight between oil- and corn-state lawmakers over the RFS program. The EPA ultimately decided not to appeal the 10th Circuit ruling, drawing criticism from oil refiners, but it also hasn’t implemented the court’s order nationally yet, to the dismay of biofuels producers.
During the hearing, Barrasso and Oklahoma Republican Sen. James Inhofe expressed concerns to Wheeler about the EPA’s handling of the RFS and the small refinery waiver program.
The EPA’s failure to appeal the 10th Circuit ruling “was inexplicable,” Barrasso told Wheeler. “Unless the EPA identifies ways to provide similar levels of relief to small refineries, the consequences of the decisions that have been made by the EPA are going to be devastating for communities in Wyoming and elsewhere.”
Wheeler hasn’t committed yet to granting any waivers under the RFS program. In recent weeks, several state governors have asked the EPA to waive or adjust significantly the biofuels mandate for 2020, citing “severe economic hardship.”
Barrasso led 15 Republican senators in a letter Tuesday that called on Wheeler to grant those waivers.
“A failure to grant, in part or in whole, the governors’ petitions would render this provision of the Clean Air Act utterly meaningless,” the senators wrote. “It would be a gross example of a federal agency nullifying an act of Congress.”
Wheeler, during separate questioning from Iowa Republican Sen. Joni Ernst, said the EPA hadn’t made a decision yet on the governors’ waiver requests.
Ernst, who led a bipartisan letter May 7 to President Trump opposing the waiver requests, asked Wheeler to commit to past precedent that the EPA must demonstrate the RFS itself is causing “severe economic harm” in order to waive its requirements. Ernst and other corn-state senators have argued the governors’ requests don’t pass that test.
“To me, the idea that the RFS is the cause of harm to the petroleum sector when it is very clearly the COVID-19 pandemic, as well as wars between Russia and Saudi Arabia on oil production — this is frustrating to me and to my farmers in Iowa,” she said. “Time and time again, we’re seeing these battles play out around the RFS program.”
Wheeler, in response, said everything the Trump administration has done under the RFS program “has looked at past precedent as well as the requirements of the Clean Air Act and the ever-changing litigation decisions that we receive from court decisions.”
Ernst also pressured Wheeler on commitments she said he made last fall that the EPA would eliminate warning labels for E15, a higher-blend ethanol fuel. In May 2019, the EPA opened up year-round sales of E15, fulfilling a promise Trump made to Iowa corn farmers. The oil industry sharply objected to the move.
Wheeler responded eliminating the warning labels is “actually more complicated” than what he told Ernst and others during a White House meeting last fall because any decision on the labels would also affect underground storage tanks. He also said the EPA staffers working on the RFS have their hands full dealing with the fallout from the 10th Circuit decision and other pending biofuels issues.
“We’re a little behind on that, but we certainly hope to get through that as quickly as we can,” he said of the E15 pledge.
