Biobased and Renewable Products Update – Update from Bergeson & Campbell, P.C.

May 2, 2019


D.C. Circuit Partially Denies Petition For Review Of TSCA Inventory Rule
On April 26, 2019, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) issued its order on the petition for review of the U.S. Environmental Protection Agency’s (EPA) final rule on the Toxic Substances Control Act (TSCA) Inventory Notification (Active-Inactive) Requirements (82 Fed. Reg. 37520 (Aug. 11, 2017)), which denied the petition for review on all but one claim.  Petitioner Environmental Defense Fund (EDF) challenged five distinct features of the Inventory final rule:  (i) EPA’s exclusion of substantiation questions regarding reverse engineering; (ii) the final rule’s criteria for “maintaining” a confidentiality claim; (iii) EPA’s choice not to incorporate certain regulatory requirements into the final rule; (iv) EPA’s failure to implement the Act’s “unique identifier” requirements in this rulemaking; and (v) the final rule’s exemption of exported chemicals from its notification requirements. 
The D.C. Circuit’s order states that only the first claim succeeds past the standard of review required under both the Administrative Procedure Act (APA) and TSCA, however; specifically, EPA acted arbitrarily and capriciously via its “omission of any inquiry into a chemical identity’s susceptibility to reverse engineering [which] effectively excised a statutorily required criterion from the substantiation process.”  Even though EPA included several substantiation questions to address reverse engineering in the proposed rule, EPA did not include any “substantiation questions related to the requirement that a substance’s chemical identity not be susceptible to reverse engineering” and declined altogether to “‘secure answers’ substantiating a company’s ‘assertion’ that its chemical product cannot be reverse engineered.”  The court states that this error was “fatal” and remands this issue back to EPA for EPA to “address its arbitrary elimination of substantiation questions regarding reverse engineering.” For further details, see Bergeson & Campbell, P.C.’s (B&C®) TSCAblog™ article.


National Chicken Council Submits Letter To EPA On The E15 Rule
On April 29, 2019, the National Chicken Council submitted a letter to EPA’s Office of Transportation and Air Quality outlining the potentially negative impact of the changes to the biofuels policy on the poultry industry. In his letter to EPA, Mike Brown, President of the National Chicken Council, reported concern with EPA’s proposal on year-round ethanol-15 (E15) use under the Renewable Fuels Standard (RFS) Program. The National Chicken Council believes that EPA has failed to consider the impact of such volume waivers on the boiler industry, and for poultry and livestock feeders generally. Brown assures EPA that a year-round E15 use waiver “will result in a rapid expansion of corn use under the RFS adding the potential for price and supply volatility in the corn market.” Instead of the aforementioned proposed modifications, the National Chicken Council is suggesting that EPA consider a predictable, transparent off-ramp based on the U.S. Department of Agriculture (USDA) stocks-to-use-ratio in the June World Agricultural Supply and Demand Estimates (WASDE) report. Partial waivers would then be structured for the remainder of the year. The structure of the partial waivers is further detailed in the letter.


Biofuels In Canada Report Published
In April 2019, Navius Research Inc. (Navius Research) published a report titled “Biofuels in Canada 2019: Tracking biofuel consumption, feedstocks and avoided greenhouse gas emissions.” Using public data, the report analyzes the volume of transportation biofuels consumed in each Canadian province and estimates the impact of this consumption on greenhouse gas (GHG) emissions and transportation energy costs. An increase in both ethanol and renewable fuel consumption is noted in the report, which has led to reduced fuel expenditures in Canada by 0.42 percent from 2010 through 2017. This decreased expenditure is relative to a counterfactual scenario without biofuel consumption. Relative to this counterfactual scenario, differences in fuel energy density and fuel costs, Canada has ended up paying more taxes due to biofuel blending and consumption.
ELI Publishes Book On Legal Pathways To Deep Decarbonization
On April 25, 2019, the Environmental Law Institute (ELI) held an event to provide an overview of their latest publication, a book titled Legal Pathways to Deep Decarbonization in the United States. Providing an overview of the book, a few of the authors were part of a panel discussion opened by William K. Reilly, former EPA Administrator under President George H. W. Bush. In his opening remarks, Mr. Reilly emphasized the potential existing with politics to change culture to achieve low-carbon emissions in the near future. Following Mr. Reilly, Commonwealth Professor of Environmental Law and Sustainability Director at Widener University, John C. Dernbach, started the panel discussion by providing an overview of the contents of the book. According to Professor Dernbach, deep decarbonization is defined as achieving at least 80 percent GHG emissions through deep cuts by 2050. The book therefore contains chapters on federal, state, and tribal legal tools that are available to decarbonize the U.S. In the book, the authors present twelve types of legal tools available; some that are regulatory tools, and some that are not. Types of legal tools include, research and development (R&D), market leveraging approaches, removal of incentives for fossil fuels, and infrastructure development, among others. During the event, other authors and co-authors spoke about specific chapters of the book, stating that they were almost certain that the legal tools available would create economic, social, and environmental security. Unfortunately, the event was interrupted by a fire alarm in the building. For further information, the book can be found for purchase here.

Other News

nature, “Australian Gene-editing Rules Adopt ‘Middle Ground’
Reuters, “U.S. EPA Stalls Biofuel Waiver Transparency Plan after White House Blowback –Sources
Inhabitat, “Fueled by Chocolate: Ghana’s Newest Biofuel
ScienceDaily, “Sustainable Way to Increase Seed Oil Yield in Crops
The Pantagraph, “‘Better and Greener:’ ISU Project Focuses on Recycling, Sustainability
Forbes, “This Line of Bags Is Manufactured with Algae – and the First Run Is Almost Sold Out
Canadian Biomass, “CHAR Technologies’ Biocarbon Products Present New, Sustainable Opportunities, “Nestle and Pepsi Invest in French Plastic Recycling Biotechnology
Chemical Engineering, “Enzyme Engineering Enables Bio-based Hydrogen Peroxide

The Biobased and Renewable Products Advocacy Group (BRAG®) helps members develop and bring to market their innovative biobased chemical products through insightful policy and regulatory advocacy. BRAG is managed by B&C® Consortia Management, L.L.C., an affiliate of Bergeson & Campbell, P.C.

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