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DECEMBER 20, 2022
VOLUME XII, NUMBER 354
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Cliff L. Rothenstein
Buck B. Endemann
Tim L. Peckinpaugh
Michael W. Evans
Samuel R. Boden
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ELECTRIFYING THE RENEWABLE FUEL STANDARDS: EPA PROPOSES A MAJOR EXPANSION OF THE
RENEWABLE FUEL STANDARD PROGRAM
Friday, December 9, 2022
On 1 December 2022, U.S. Environmental Protection Agency (EPA) proposed a major
new regulatory component of the Renewable Fuel Standard program (RFS) to
recognize electricity produced from biomass and used to fuel electric vehicles
(the Proposed eRINs Rule).1 Industry participants have waited on the Proposed
eRINs Rule for several years, and its introduction on the heels of the Inflation
Reduction Act gives biogas developers yet another option when pursuing projects.
EPA is soliciting public comments on the Proposed eRINs Rule until 10 February
2023. The lawyers of K&L Gates’ Power and Renewables, Environment, Land Use, and
Natural Resources, and Policy and Regulatory practices are available to draft
comments and help clients understand this expansion of the RFS.
The federal Energy Policy Act of 2005 authorized the Renewable Fuel Program,
which amended the Clean Air Act and gave rise to the first iteration of the RFS.
The Renewable Fuel Program was later expanded under the Energy Independence and
Security Act of 2007 (EISA), a statute that established target renewable fuel
volumes through 2022 (known as RFS2, although we will refer to both programs
here as the RFS). Under the RFS, oil refiners must on an annual basis blend or
replace petroleum-based transportation fuel with statutorily prescribed volumes
of renewable fuels, including biomass-based diesel, cellulosic biofuel, advanced
biofuel, and total renewable fuel. Starting in 2023, the EISA statutory
obligations cease and the RFS is handed to EPA, which must update the annual
renewable fuel volumes by 30 November of each subsequent year.
The RFS introduced a market-based compliance mechanism that requires refiners or
importers to show that particular volumes of renewable fuels have been
introduced into the nation’s transportation fuel mix. Demonstrating compliance
with the RFS requires refiners or importers of gasoline/diesel fuel to achieve
these volumetric standards by “blending” renewable fuels into their
petroleum-based fuels or by obtaining credits known as Renewable Identification
Numbers (RINs) that otherwise proves that renewable fuel was used as a
transportation fuel. Renewable fuel producers generate RINs by producing a
gallon (or gallon equivalent) of renewable fuel, such as ethanol, biodiesel, or
compressed natural gas. RINs can be bought and sold by refiners, renewable fuel
producers, and brokers and can ultimately be retired by obligated parties to
show compliance under the RFS.
EPA’s Proposed eRINs Rule expands the program to electric vehicles (which use
electricity as a transportation fuel) and has a few primary elements. First,
electric vehicle manufacturers (or, potentially, renewable electricity
generators and electric vehicle charging networks) may generate RINs for
electric vehicles (eRINs) charged with renewable electricity sourced from
renewable biomass. Second, the proposed rule increases the amount of renewable
fuel that oil refiners and importers must blend with petroleum-based fuels.
Finally, EPA proposed several regulatory and recordkeeping adjustments,
including specifying that in certain circumstances biomethane producers should
be RIN producers.
ERIN PROPOSAL
The Clean Air Act’s RFS requires renewable fuels to be (1) produced from
renewable biomass and (2) used for transportation. Under the Proposed eRIN Rule,
opt-in parties would be able to generate eRINs from electricity produced from
qualifying renewable biomass and used as transportation fuel.
EPA’s preferred method for calculating eRIN generation would use contractual
relationships between renewable electricity generators and electric vehicle
manufacturers (also known as original equipment manufacturers, or OEMs) to show
that renewable electricity was used as transportation fuel. Under this method,
OEMs would be able to generate a quantity of eRINs representing the amount of
renewable electricity used by both new and previously sold light-duty electric
vehicles. The OEM would be responsible for purchasing renewable electricity from
generators, and matching the quantity of renewable electricity with fleet-wide
electricity consumption averages for that OEM’s vehicles. EPA also suggested
alternative methods for eRIN generation, including allowing renewable
electricity generators or public access charging stations to generate eRINs or
using charging data from onboard vehicle telematics. EPA ultimately concluded
that a top-down, OEM-driven approach simplified recordkeeping and reduced the
risk of double counting, but is willing to hear further public comment on the
issue.
Under EPA’s preferred approach, biogas producers would first produce biogas
under existing EPA-approved pathways for biogas to electricity. Second,
renewable electricity generators would either use biogas directly supplied to
their electric generating units or procure renewable natural gas from the
natural gas commercial pipeline system. Third, OEMs would determine the
electricity consumption of their vehicles and enter contracts with renewable
electricity generators for energy sufficient to cover their fleet’s in-use
electricity consumption. OEMs would then be able to generate eRINs on a
quarterly basis representing the lesser of either (1) the quantity of
electricity used by their fleets or (2) the renewable electricity generated from
renewable electricity generators under the contracts. As with the existing
program, refiners, importers, and blenders could then purchase eRINs from OEMs
to meet their own renewable volume obligations.
EPA’s Proposed eRINs Rule would prevent eRINs from being generated until 1
January 2024. If finalized in this form, the eRIN program would greatly expand
opportunities for companies to generate or share in the economic rewards of
cellulosic biofuel (D3) RINs under the RFS. Under EPA’s reasoning, providing
OEMs with the opportunity to generate eRINs could potentially bring down the
total cost of producing electric vehicles, incentivize OEMs to broaden their
product lines, and share RFS revenue up and down the biogas-to-electricity value
chain. OEMs may also start pursuing arrangements to secure long-term supplies of
biogas-generated renewable electricity, which could spur the development of
anaerobic digesters that are located close to power transmission but a
considerable distance from interstate natural gas pipelines.
INCREASED BLENDING TARGETS
In addition to the eRIN program, in its first year of volumetric decisionmaking
authority, EPA has proposed the following increased biofuel blending volume
targets for 2023-2025:
* 20.82 billion gallons of renewable fuel (conventional biofuels) in 2023,
increasing up to 22.68 billion in 2025.
* 5.82 billion gallons of advanced biofuel in 2023, increasing up to 7.43
billion in 2025.
* 2.82 billion gallons of biomass-based diesel in 2023, increasing up to 2.95
billion in 2025.
* 0.72 billion gallons of cellulosic biofuel in 2023, increasing up to 2.13
billion in 2025.
* 0.25 billion gallons of supplemental renewable fuels for 2023.
Overall, EPA’s Proposed eRINs Rule can be seen as a big step in the Biden
Administration’s goal of decarbonization by 2050. Like previous RFS rules, which
have sparked controversy between farmers and oil producers, EPA’s proposed rule
could be contentious as it expands the program to many new stakeholders and will
surely add a layer of complexity to the burgeoning biogas and renewable natural
gas markets. Those who are currently subject to the RFS and the many new players
who may benefit, including OEMs, agricultural concerns, and municipalities, are
encouraged to pay close attention to EPA’s rulemaking process.
EPA is soliciting public comments until 10 February 2023, and will hold
workshops on January 10 and (possibly) January 11, 2023. The lawyers of K&L
Gates’ Power and Renewables, Environment, Land Use, and Natural Resources, and
Policy and Regulatory practices are available to draft comments and help clients
understand this expansion of the RFS and its impact on the power and
transportation fuels sectors.
--------------------------------------------------------------------------------
FOOTNOTES
1 https://www.epa.gov/system/files/documents/2022-12/rfs-set-rule-nprm-2022-11-30.pdf
Copyright 2022 K & L GatesNational Law Review, Volume XII, Number 343
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About this Author
Ankur K. Tohan
Partner
Ankur Tohan works with the firm's Environmental, Land and Natural Resources
practice. His practice focuses on energy infrastructure, natural resource
development, compliance counseling, and defense of governmental and citizen
enforcement actions.
Ankur helps clients navigate complex regulatory, permitting, and enforcement
matters under a range of environmental statutes, including the Migratory Bird
Treaty Act (MBTA), Bald and Golden Eagle Protection Act (BGEPA), Endangered
Species Act (ESA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA...
ankur.tohan@klgates.com
206-370-7658
www.klgates.com
Cliff L. Rothenstein
Government Affairs Advisor
Cliff Rothenstein has more than 30 years of congressional and federal executive
experience. Prior to joining K&L Gates, he served as Director of Legislative
Affairs for the Federal Highway Administration (FHWA). In this capacity, Mr.
Rothenstein worked on a daily basis with the FHWA Administrator, Deputy
Administrator, and Deputy Secretary of the U.S. Department of Transportation
(DOT). During Mr. Rothenstein’s tenure at FHWA, he led the development and
advocacy efforts on legislation to reauthorize the nation’s surface
transportation law where he played a...
cliff.rothenstein@klgates.com
202-778-9381
www.klgates.com
Buck B. Endemann
Partner
Buck Endemann is a partner in the firm’s San Francisco office, where he is a
member of the energy practice group. He provides comprehensive counseling on
energy, infrastructure and remediation projects, including advice on air, water
and waste compliance issues, and represents clients in related litigation.
Mr. Endemann has extensive experience on the commercial, land use, and
regulatory aspects of renewable energy and infrastructure projects throughout
the Western United States, with an emphasis on California. He has a particular
expertise...
Buck.Endemann@klgates.com
415-882-8016
klgates.com
Tim L. Peckinpaugh
Partner
Tim Peckinpaugh’s practice focuses on energy, environmental, and natural
resource legislative and funding issues.
Mr. Peckinpaugh has represented clients for thirty years in all aspects of
energy policy, including nuclear, hydroelectric, coal, oil and natural gas,
electricity, as well as a variety of clean technology and energy efficiency
issues. He also represents major international corporations and local
communities on Department of Energy nuclear cleanup, nuclear security, and
contracting issues. In addition, Mr. Peckinpaugh represents...
tim.peckinpaugh@klgates.com
202-661-6265
www.klgates.com
Michael W. Evans
Partner
Michael Evans is a partner in K&L Gates' Washington, D.C. office. He is a member
of the Public Policy and Law practice group, and focuses his practice on federal
tax, health care, trade, and environmental policy.
Mike is a former Democratic chief counsel and deputy staff director for the
U.S. Senate Finance Committee, which has jurisdiction over federal tax, trade,
and health care matters. He has worked on major federal policy issues, including
the Inflation Reduction Act and major tax and spending legislation process, for
more than four...
mike.evans@klgates.com
202-778-4378
www.klgates.com/
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