Environmentalists Prevail in Challenge to Fuel Standards

WASHINGTON (CN) – Ordering the EPA to reconsider renewable fuel standards it set for 2018, the D.C. Circuit ruled Friday that the agency failed to consider how the policy affects endangered species.

The whooping crane, Grus Americana.

The Sierra Club and the Gulf Restoration Network sued the EPA in February 2018, saying the EPA left endangered species out of the equation when it set a new standard for how much renewable fuel, such as ethanol, must be brought into the U.S. market to be mixed with traditional fossil fuels.

The groups pointed to the whooping crane and gulf sturgeon specifically, saying their habitats could suffer if corn production were increased to meet ethanol demand.

Industry groups, refineries and energy companies brought challenges as well — alternately claiming that the standard had been set either too high or too low — but the D.C. Circuit on Friday granted only the petition Brough brought by the Sierra Club and Gulf Restoration Network.

Federal agencies are required under the Endangered Species Act to determine whether the actions they propose will harm either a species or its habitat. When impacts are anticipated, the agency must then consult with the Fish and Wildlife Service and the National Marine Fisheries Service.

Against the environmental groups’ challenge, however, the EPA argued it did not need to determine whether changing the renewable fuel standard would harm endangered species because its duty to set the standard is mandatory, not discretionary.

It also argued that it did make a determination when it responded to comments on the proposed standards by saying it could not attribute any damage to habitats or species to changes in the rule.

But the D.C. Circuit found flaws in both arguments. The court ruled 3-0 that the EPA had some discretion in how exactly it set the fuel standards, and that not being able to attribute harm directly to the rule is not the same as finding the rule would not affect endangered species.

“In other words, the EPA concluded that it is impossible to know whether the 2018 rule will affect listed species or critical habitat,” the unsigned opinion states. “That is not the same as determining that the 2018 rule ‘will not’ affect them.”

The court did not invalidate the rule, but sent it back to the EPA for further consideration.

Sierra Club senior attorney Devorah Ancel called it admirable that the EPA is working to reduce fossil fuel dependency but said the agency must also consider the unintended consequences of moving to alternative sources.

“Today’s victory shows that the EPA can’t just abandon its duties to wreak havoc on critical land and endangered species,” Ancel said in a statement. “It’s unconscionable that the EPA continues to expand ethanol production when it’s destroying our land, water and air. Moving away from gasoline-powered vehicles is critical, but mixing corn with gasoline isn’t the answer to cleaning up our transportation pollution.” 

A representative for the EPA said the agency is reviewing the decision.

The ruling comes a week after a separate D.C. Circuit panel upheld other standards the EPA put forward as part of the program, which sets standards for the amount of renewable fuel that must be introduced to the U.S. market each year and mixed into traditional fuel sources.

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