Waiver Authority Under the
Renewable Fuel Standard (RFS)
Brent D. Yacobucci
Section Research Manager
January 21, 2014
Congressional Research Service
7-5700
www.crs.gov
RS22870
Waiver Authority Under the Renewable Fuel Standard (RFS)
Summary
Transportation fuels are required by federal law to contain a minimum amount of renewable fuel
each year. The renewable fuel standard (RFS), established by the Energy Policy Act of 2005
(EPAct, P.L. 109-58) and amended by the Energy Independence and Security Act of 2007 (EISA,
P.L. 110-140), required that a total of 16.55 billion gallons of renewable fuels be used to offset
gasoline and diesel fuel in 2013. Under EISA, the scheduled mandates grow each year (to 36
billion gallons in 2022). However, the ability of fuel suppliers to meet the growing RFS mandates
has been questioned. For 2014, instead of a total of 18.15 billion gallons scheduled in EISA, the
Environmental Protection Agency (EPA) has proposed using waiver authority within the statute to
lower the mandate to 15.21 billion gallons. Within the overall RFS there are sub-mandates (or
“carveouts”) for advanced and cellulosic biofuels. EPA has proposed lowering these as well.
Most of the overall RFS mandate (84% for 2013) is currently met using corn-based ethanol. The
vast majority of the ethanol supplied to meet the RFS is blended into gasoline at the 10% level
(E10). However, there is a limit to the amount of ethanol that can be blended into gasoline at this
level, and other options for supplying ethanol (e.g., higher-level ethanol blends such as E15 and
E85) are currently constrained because of infrastructure and other impediments. In prior years this
had not been a problem because the volume of biofuels needed to meet the RFS mandate was
below the maximum amount of ethanol that could be supplied as E10; but stakeholders were
especially concerned about the possibility of facing the “blend wall” in either 2013 or 2014.
The Environmental Protection Agency (EPA) has the authority to waive the RFS requirements, in
whole or in part, if certain conditions outlined in the law are present. Under EISA the overall RFS
is scheduled to grow to 18.15 billion gallons in 2014. In November 2013 EPA proposed using its
general authority to lower the RFS mandates in cases of “inadequate supply.” In this case, they
interpreted “inadequate supply” to include an inability to deliver the necessary biofuels to
consumers, even if there is sufficient production of said biofuels. Gasoline and diesel fuel
suppliers and other stakeholders have generally been supportive of EPA’s proposal, while biofuel
producers and corn growers believe that EPA is overstepping its authority.
Questions have also been raised over whether the overall mandate diverts enough corn supply
from food/feed production to dramatically raise prices in those markets, and whether there is
enough feedstock supply and production capacity to meet the carveouts for fuels other than corn
ethanol. In 2008 the governor of Texas requested a waiver of the RFS because of high grain
prices, although that waiver request was denied because EPA determined that the RFS
requirements alone did not “severely harm the economy of a State, a region, or the United States,”
a standard required by the statute. A similar waiver petition was filed by the governors of several
states in August 2012. That petition was denied for similar reasons.
In February 2010, as part of a final rulemaking implementing the RFS as expanded by EISA, EPA
waived most of the 2010 cellulosic biofuel carveout—as they have in each subsequent year. In
cases where EPA projects inadequate production of cellulosic biofuels to meet the schedule in
EISA, the agency must lower the mandate to the projected level, although EPA’s process for
doing so has been controversial, and the agency’s 2012 cellulosic mandate was remanded by the
U.S. Court of Appeals for the D.C. Circuit.
This report provides a brief overview of the RFS program and discusses the process and criteria
for EPA to waive various parts of the RFS.
Congressional Research Service
Waiver Authority Under the Renewable Fuel Standard (RFS)
Contents
Background and Recent History ...................................................................................................... 1
Current RFS Requirements .............................................................................................................. 3
Waiver Provisions ............................................................................................................................ 3
General Waiver .......................................................................................................................... 3
Waiver Petitions .................................................................................................................. 4
Proposed Waiver of 2014 Standards .................................................................................... 5
Cellulosic Biofuel Waiver .......................................................................................................... 6
Biomass-Based Diesel Waiver ................................................................................................... 7
Reductions in the RFS ............................................................................................................... 8
Effects of a Waiver ........................................................................................................................... 8
Contacts
Author Contact Information............................................................................................................. 9
Congressional Research Service
Waiver Authority Under the Renewable Fuel Standard (RFS)
Background and Recent History
The Energy Policy Act of 2005 (EPAct, P.L. 109-58) established a renewable fuel standard (RFS),
requiring the use of biofuels (such as ethanol) in the nation’s fuel supply.1 The Energy
Independence and Security Act of 2007 (EISA, P.L. 110-140) significantly expanded this
mandate. The RFS mandate has been a major impetus to the development of U.S. biofuels
industries, especially the ethanol industry. As a result, ethanol production capacity and the
demand for corn as a biofuel feedstock have grown dramatically over the past few years. In 2005,
the United States produced 3.9 billion gallons of ethanol, requiring roughly 1.4 billion bushels of
corn; in 2007, those numbers had increased to 6.5 billion gallons and 2.3 billion bushels. In 2007,
roughly one-quarter of the U.S. corn crop was directed to ethanol production. In 2011, production
had increased to roughly 14 billion gallons using approximately 5 billion bushels of corn or 40%
of the 2011 crop.
Increasing demand for corn for biofuels, the rise in energy prices, and other supply concerns in
international grain markets led to rapid increases in corn and other grain prices in 2008. These
higher grain prices raised concern globally over food prices and availability. Because of these
concerns, there was interest among some policymakers to amend or eliminate the RFS.
Under the provisions of EPAct and EISA, the administrator of the Environmental Protection
Agency (EPA) has the authority to waive the RFS requirements in whole or in part, in response to
a petition by a state or a fuel provider, or on her own motion. On April 25, 2008, Texas Governor
Rick Perry sent a letter to EPA Administrator Stephen Johnson petitioning for a 50% waiver from
the RFS requirements.2 In his letter, Governor Perry stated that he initiated the petition because of
the negative effect of the requirements on the Texas economy and on global food prices. In
August 2008 EPA denied the waiver request because the agency found that the effects of the RFS
on food, feed, and fuel prices was minimal, and thus the economic effects of the RFS “could not
be categorized as severe.”3 In August 2012, Arkansas governor Mike Beebe and North Carolina
governor Beverly Eaves Perdue submitted petition letters to EPA requesting full or partial waivers
of the 2012 and 2013 RFS mandates.4 Governors of several other states joined that petition.5 The
governors cited the effects of the 2012 drought, further compounded by the increased grain
demand from the RFS, as leading to severe economic harm to their states, especially their
livestock producers. However, EPA denied these petitions for similar reasons as in 2008.6
1 For more information on the RFS, see CRS Report R40155, Renewable Fuel Standard (RFS): Overview and Issues,
by Randy Schnepf and Brent D. Yacobucci, and CRS Report R43325, The Renewable Fuel Standard: In Brief , by
Kelsi Bracmort
2 Rick Perry, governor of Texas, Letter to The Honorable Stephen L. Johnson, Administrator, U.S. Environmental
Protection Agency, April 25, 2008.
3 U.S. Environmental Protection Agency, EPA Decision on Texas Request for Waiver of Portion of Renewable Fuel
Standard (RFS), EPA420-F-08-029, Washington, DC, August, 2008, http://www.epa.gov/otaq/renewablefuels/
420f08029.htm.
4 Letter from Mike Beebe, Governor of Arkansas, to Lisa P. Jackson, EPA Administrator, August 13, 2012,
http://www.epa.gov/otaq/fuels/renewablefuels/documents/arkansas-rfs-waiver-request.pdf. Letter from Beverly Eaves
Perdue, Governor of North Carolina, to Lisa P. Jackson, EPA Administrator, August 14, 2012, http://www.epa.gov/
otaq/fuels/renewablefuels/documents/north-carolina-rfs-waiver-request.pdf.
5 New Mexico, Georgia, Texas, Virginia, Maryland, Delaware, Utah, and Wyoming. The governor of Florida wrote
EPA in support of the waiver requests. 77 Federal Register 70754.
6 U.S. Environmental Protection Agency, “Notice of a Decision Regarding Requests for a Waiver of the Renewable
(continued...)
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Waiver Authority Under the Renewable Fuel Standard (RFS)
Another factor that could lead the EPA Administrator to waive certain parts of the RFS is the
“blend wall.” The vast majority of the RFS is met using ethanol blended into gasoline at the 10%
level (E10). However, there is a limit to the amount of ethanol that can be blended into gasoline at
this level, and other options for supplying ethanol (e.g., higher-level ethanol blends such as E15
and E85) are currently constrained because of infrastructure and other impediments. In prior years
this had not been a problem because the volume of biofuels needed to meet the RFS mandate was
below the maximum amount of ethanol that could be supplied as E10; but stakeholders were
especially concerned about the possibility of facing this “blend wall” in either 2013 or 2014. In
November 2013 EPA proposed using its general authority to lower the RFS mandates in cases of
“inadequate supply.”7 EPA proposed an overall mandate of 15.21 billion gallons for 2014, instead
of the 18.15 billion gallons of biofuels scheduled for 2014 in EISA, and below the 2013 mandate
of 16.55 billion gallons.
Within the overall RFS there are sub-mandates for the use of cellulosic biofuels, biomass-based
diesel fuels, and other advanced biofuels. However, questions have been raised over whether
there is enough feedstock supply and production capacity to meet some of these carveouts,
especially the cellulosic biofuel carveout.8 EPA waived most of the 2010 cellulosic biofuel
carveout—EISA set the mandate at 100 million gallons but EPA only required 6.5 million gallons,
more than 90% less than scheduled by EISA. EPA cited a lack of then-current and expected
production capacity, driven largely by delays in production plans and a lack of investment in
commercial-scale refineries.9 Similarly, EPA finalized cellulosic biofuel mandates of 6.0 and
10.45 million gallons for 2011 and 2012, respectively—97% and 98% lower than the amounts
scheduled in EISA.10Because of a lack of commercial cellulosic biofuel production capacity—no
cellulosic production was registered in the RFS in 2011 and only about 20,000 gallons were
registered in 2012—gasoline and diesel fuel producers challenged the lowered mandates in court.
In January 2013, the U.S. Court of Appeals for the D.C. Circuit vacated the 2012 cellulosic
mandate and remanded the rule back to EPA.11 EPA subsequently set the 2012 level at zero and
has proposed doing the same for 2011. For 2013, EPA finalized a cellulosic mandate of 6.0
million gallons (instead of 1 billion gallons), and this lowered mandate is also subject to a court
challenge.12 For 2014, EPA has proposed a cellulosic mandate of between 8 and 30 million
gallons, instead of 1.75 billion gallons scheduled in the statute.
(...continued)
Fuel Standard,” 77 Federal Register 70752-70776, November 27, 2012.
7 U.S. Environmental Protection Agency, “2014 Standards for the Renewable Fuel Standard Program; Proposed Rule,”
78 Federal Register 71732-71784, November 29, 2013.
8 For more information on cellulosic biofuels, see CRS Report R41106, Meeting the Renewable Fuel Standard (RFS)
Mandate for Cellulosic Biofuels: Questions and Answers, by Kelsi Bracmort.
9 U.S. Environmental Protection Agency, Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel
Standard Program; Final Rule, EPA-HQ-OAR-2005-0161, Washington, DC, February 3, 2010, pp. 173-174,
http://www.epa.gov/otaq/renewablefuels/rfs2-preamble.pdf.
10 Environmental Protection Agency, “Regulation of Fuel and Fuel Additives: 2011 Renewable Fuel Standards; Final
Rule,” 75 Federal Register 76790, December 9, 2010; and Environmental Protection Agency, “Regulation of Fuels and
Fuel Additives: 2012 Renewable Fuel Standards; Final Rule,” 77 Federal Register 1320, January 9, 2012.
11 API v. EPA, 706 F.3d 474 (D.C. Cir. 2013).
12 Erin Voegele, “API Challenges 2013 RFS Cellulsoic Volume Requirement,” Biomass Magazine, October 8, 2013.
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Waiver Authority Under the Renewable Fuel Standard (RFS)
Current RFS Requirements
The RFS requires the use of 16.55 billion gallons of renewable fuel in transportation fuels in
2013—corn ethanol is limited to counting for 13.8 billion gallons of the 2013 mandate. The RFS
is scheduled to increase to 36 billion gallons by 2022 with an increasing share coming from
“advanced biofuels”—biofuels produced from feedstocks other than corn starch—including
cellulosic biofuel and bio-based diesel substitutes. As has been the case in previous years, in 2013
the vast majority of the mandate will be met with U.S. corn ethanol (and a smaller amount of
biodiesel, as well as sugarcane ethanol from Brazil). For 2014, the overall mandate is scheduled
to increase to 18.15 billion gallons, with 3.75 billion gallons of that coming from advanced
biofuels, and 1.75 billion gallons of the advanced biofuel mandate coming from cellulosic
biofuels. In November 2013, EPA proposed lowering all three of the mandates, to 15.21 billion
gallons, 2.20 billion gallons, and 17 million gallons, respectively.13
By 2015 corn ethanol’s share of the RFS is effectively capped at 15 billion gallons per year. The
EISA amendments to the RFS specifically mandate the use of cellulosic biofuel (16 billion
gallons by 2022) and biomass-based diesel fuel (at least 1.0 billion gallons annually by 2012).
However, some advanced biofuels, especially cellulosic fuels, have been slow to develop and fuel
production lags EISA’s mandated schedule.
Waiver Provisions
As amended by EISA, section 211(o)(7) of the Clean Air Act14 gives the EPA administrator the
authority to waive, in whole or in part, the total volume of renewable fuel mandated by the RFS
if, in her determination, there is inadequate domestic supply to meet the mandate, or if
“implementation of the requirement would severely harm the economy or environment of a State,
a region, or the United States.”15 Further, under certain conditions, the EPA administrator may
waive (in whole or in part) the specific carve-outs for cellulosic biofuel and biomass-based
diesel fuel.16
General Waiver
On the petition of a state or a fuel provider, or at her own discretion,17 the administrator may
waive the overall RFS requirement for a given year. If a waiver is granted, any adjustment applies
to total national requirement. Regardless of who initiates the waiver petition, all fuel suppliers’
quotas would be reduced by a similar percentage. As the law is written, EPA may not waive the
requirement for an individual state or supplier within a state, but must reduce the entire national
mandate.
13 U.S. Environmental Protection Agency, “2014 Standards for the Renewable Fuel Standard Program; Proposed Rule,”
78 Federal Register 71732-71784, November 29, 2013.
14 42 U.S.C. 7545(o)(7).
15 42 U.S.C. 7545(o)(7)(A)(i).
16 42 U.S.C. 7545(o)(7)(D)-(E).
17 Under EPAct, only states could petition EPA for the waiver. EISA amended the RFS to allow fuel providers to file a
petition, and to give the EPA administrator authority to initiate the process on her own motion.
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Waiver Authority Under the Renewable Fuel Standard (RFS)
To grant the waiver, the EPA administrator must determine, in consultation with the Secretaries of
Agriculture and Energy, that one of two conditions has been met:
• there is inadequate domestic renewable fuel supply; or
• implementation of the requirement would severely harm the economy or
environment of a State, a region, or the United States.
However, it is unclear how EPA will interpret these criteria. In its May 1, 2007, final rule for 2007
onward,18 EPA explicitly stated that it would not establish more specific criteria for the waiver:
While EPA realizes that the criteria provided by the statute are quite general, the rationales
of severe environmental or economic harm or inadequate domestic supply are sufficient for a
basic framework upon which a petition can be built and evaluated. Each situation in which a
waiver may be requested will be unique, and promulgating a list of more specific criteria in
the abstract may be counter-productive.19
Within 90 days of receipt of the waiver petition, EPA must act to approve or disapprove the
petition, after public notice and opportunity for comment. If EPA does grant a waiver, the waiver
expires after one year, but may be extended by the EPA administrator in consultation with the
Secretaries of Agriculture and Energy.
Waiver Petitions
In November 2012, EPA denied waiver petitions from the governors of Arkansas, North Carolina,
and several other states. Severe droughts across much of the United States in the summer of 2012
which cut into corn yields, along with high worldwide demand for food and feed grains, had
pushed December 2012 corn futures prices up from roughly $5.30 per bushel in early July 2012
to above $8.00 per bushel in mid-August. By mid-September prices had moderated somewhat to
the mid-$7.00’s.20 Those high prices raised the feed costs of cattle and other livestock, which may
have led to higher consumer meat prices. EPA determined that the RFS requirements alone did
not cause severe harm, and a waiver would do little to alleviate any problems in the states.
According to EPA,
it would not be sufficient for EPA to determine that there is severe harm to the economy of a
State, region or the United States; rather, EPA must determine that RFS implementation
would severely harm the economy. Furthermore, EPA interprets the word “would” as
requiring a generally high degree of confidence that implementation of the RFS program
would severely harm the economy of a State a region, or the United States. EPA interprets
“severely harm” as specifying a high threshold for the nature and degree of harm. Although
there are many factors that affect an economy, the RFS waiver provisions call for EPA to
evaluate the impact of the RFS mandate itself. EPA does not evaluate the impact of the RFS
volume requirements in isolation, but instead evaluates them in the context of all of the
relevant circumstances, including in this case the impact of the drought. However the
18 EPA, Regulation of Fuels and Fuel Additives: Renewable Fuel Standard Program; Final Rule, May 1, 2007. 72
Federal Register 23899-24014.
19 72 Federal Register 23928.
20 CME Group, Corn Futures, September 24, 2012, http://www.cmegroup.com/trading/agricultural/grain-and-oilseed/
corn.html.
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Waiver Authority Under the Renewable Fuel Standard (RFS)
purpose of this analysis is to characterize the impact of the RFS mandate itself, within this
context.21
Proposed Waiver of 2014 Standards
In November 2013, EPA, under its own authority, proposed lowering the 2014 overall RFS
mandate from 18.15 billion gallons to 15.21 billion gallons, and the advanced biofuel mandate
from 3.75 billion gallons to 2.20 billion gallons.22 As noted above, most of the RFS mandate is
met through the use of ethanol blended in gasoline at the 10% level (E10), and the volume of
gasoline consumed in the United States is basically fixed. Thus, the maximum amount of ethanol
that can be supplied in that gasoline is also fixed.23 Some stakeholders raised concerns that the
scheduled volumes for 2014 would exceed the “blend wall” limitations. Others argued that
maintaining the levels set in EISA would provide the necessary incentive for the development of
infrastructure to provide fuels other than E10.
EPA has proposed using its general authority to lower the RFS mandates in cases of “inadequate
supply.” In this case, they interpreted “inadequate supply” to include an inability to deliver the
necessary biofuels to consumers, even if there is sufficient production of said biofuels. As noted
by EPA,
[W]e believe that this ambiguous provision is reasonably and best interpreted to encompass
the full range of constraints that could result in an inadequate supply of renewable fuel to the
ultimate consumers, including fuel infrastructure and other constraints. This would include,
for instance, factors affecting the ability to produce or import qualifying renewable fuels as
well as factors affecting the ability to distribute, blend, dispense, and consume those
renewable fuels.
The waiver provision at CAA 211(o)(7)(A)(ii) is ambiguous in several respects. First, it does
not specify what the general term ‘‘supply’’ refers to. The common understanding of this
term is an amount of a resource or product that is available for use by the person or place at
issue. [footnote omitted] Hence the evaluation of the supply of renewable fuel, a product, is
best understood in terms of the person or place using the product. In the RFS program,
various parties interact across several industries to drive the ultimate use of renewable fuel
by consumers of transportation fuel. For example, supplying renewable fuel to obligated
parties and terminal blenders is one part of this process, while supplying renewable fuel to
the ultimate consumer as part of transportation fuel is a different and later aspect of this
process. This is clearly the case with respect to the renewable fuels ethanol and biodiesel,
which are typically supplied to the obligated parties and terminals as a neat fuel, but in
almost all cases are supplied to the consumer as a blend with conventional fuel (ethanol and
gasoline or biodiesel and diesel). The waiver provision does not specify what product is at
issue (for example, neat renewable fuel or blended renewable fuel with transportation fuel)
or the person or place at issue (for example, obligated party or ultimate consumer), in
determining whether there is an “inadequate domestic supply.”24
21 U.S. Environmental Protection Agency, “Notice of a Decision Regarding Requests for a Waiver of the Renewable
Fuel Standard,” 77 Federal Register 70756, November 27, 2012.
22 U.S. Environmental Protection Agency, “2014 Standards for the Renewable Fuel Standard Program; Proposed Rule,”
78 Federal Register 71732-71784, November 29, 2013.
23 For more information, see CRS Report R40445, Intermediate-Level Blends of Ethanol in Gasoline, and the Ethanol
“Blend Wall”, by Brent D. Yacobucci.
24 U.S. Environmental Protection Agency, “2014 Standards for the Renewable Fuel Standard Program; Proposed Rule,”
(continued...)
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Waiver Authority Under the Renewable Fuel Standard (RFS)
Gasoline and diesel fuel suppliers and other stakeholders have generally been supportive of EPA’s
proposal,25 while many biofuel producers believe that EPA is overstepping its authority.26
Cellulosic Biofuel Waiver27
As part of the RFS, EISA established a specific mandate for the use of cellulosic biofuels—
ethanol or other fuels produced from woody or fibrous materials such as grasses, trees, etc. The
cellulosic carveout was to start in 2010 at 100 million gallons, and increase to 16.0 billion gallons
by 2022. Current cellulosic biofuel production is limited, with few commercial-scale plants in
operation. Because of uncertainties over production capacity and cellulosic biofuel supply, in its
February 2010 rulemaking, EPA reduced the cellulosic mandate from 100 million gallons to 6.5
million gallons for 2010.28 EPA set cellulosic mandates of 6.0 million gallons, 10.45 million
gallons, and 6.0 million gallons for 2011, 2012, and 2013 respectively, well below the scheduled
amounts of 250 million gallons, 500 million gallons, and 1.0 billion gallons for those years. EPA
has proposed a 2014 standard of 17 million gallons, significantly lower than the scheduled level
of 1.75 billion gallons.
If the EPA administrator determines that the projected production volume of cellulosic biofuel for
a given year is less than the mandated amount, she may reduce the carve-out. If she is going to do
so, the administrator must reduce the required amount by November 30 of the preceding calendar
year. If the administrator does reduce the mandated amount of cellulosic biofuel, she may also
reduce the required amount of advanced biofuel as well as the total volume required for that year
under the RFS by an equal or lesser amount, but she is not required to do so. For 2010 through
2013, EPA retained the overall RFS and advanced biofuel levels mandated in EISA.29 For 2014,
EPA has determined that there would be insufficient advanced biofuel supply to make up the
shortfall in cellulosic supply, and has proposed lowering both the advanced biofuel and overall
RFS.
(...continued)
78 Federal Register 71755-71756, November 29, 2013.
25 American Petroleum Institute, Industry, Consumer Groups Say EPA Took Steps to Protect Consumers from Blend
Wall, but More Needs to Be Done, Washington, DC, November 2013, http://www.api.org/news-and-media/news/
newsitems/2013/nov-2013/epa-took-steps-to-protect-consumers-from-blend-wall-but-more-needs-to-be-done.
26 Holly Jessen, “Examining EPA’s Authority to Reduce RFS Volume Requirements,” Ethanol Producer Magazine,
November 22, 2013, http://www.ethanolproducer.com/articles/10489/examining-epas-authority-to-reduce-rfs-volume-
requirements.
27 For more information on cellulosic fuels, see CRS Report R41106, Meeting the Renewable Fuel Standard (RFS)
Mandate for Cellulosic Biofuels: Questions and Answers, by Kelsi Bracmort.
28 For example, EPA cited projections from the Energy Information Administration (EIA) that roughly 5 million
gallons of cellulosic fuels could be produced in 2010, although some of that fuel would be cellulosic diesel fuel, which
generates more credits per gallon due to its higher energy content. As finalized in the rule, the RFS requirements are
based on ethanol-equivalent gallons, and the 5 million gallon number from EIA translates to roughly 6.5 million
ethanol-equivalent gallons. U.S. Environmental Protection Agency, Regulation of Fuels and Fuel Additives: Changes
to Renewable Fuel Standard Program; Final Rule, EPA-HQ-OAR-2005-0161, Washington, DC, February 3, 2010,
p. 174, http://www.epa.gov/otaq/renewablefuels/rfs2-preamble.pdf.
29 In general, the excess amount of advanced biofuel required because of the cellulosic waviers has been met using
biomass-based diesel in excess of the biomass-based diesel carveout, as well as other fuels defined as advanced
biofuels under EISA, including ethanol produced from Brazilian sugarcane.
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Waiver Authority Under the Renewable Fuel Standard (RFS)
Unlike the general waiver, only the EPA administrator may initiate a decision on a cellulosic
biofuel waiver (as opposed to, e.g., a state). Because of a lack of commercial cellulosic biofuel
production capacity—no cellulosic production was registered in the RFS in 2011 and only about
20,000 gallons were registered in 2012—gasoline and diesel fuel producers challenged the
lowered mandates in court. In January 2013, the U.S. Court of Appeals for the D.C. Circuit
vacated the 2012 cellulosic mandate and remanded the rule back to EPA.30 EPA subsequently set
the 2012 level at zero and has proposed doing the same for 2011.
Biomass-Based Diesel Waiver
Similar to the cellulosic biofuel carve-out, EISA also established a specific mandate for
the use of biomass-based diesel (BBD) fuel. Currently, most of this fuel is “biodiesel”—a diesel
fuel substitute produced from soybean oil and other vegetable oils through a process called
“transesterification”—but other fuels, some of which are termed “renewable diesel,” would also
qualify. The BBD carve-out started in 2009 at 0.5 billion gallons and increases to a minimum of
1.0 billion gallons by 2012. Because the EPA’s rule was not finalized until 2010, the Agency
established a combined biomass diesel mandate for 2009 and 2010 of 1.15 billion gallons.31 For
2012, the BBD carveout is set at 1.0 billion gallons. Because there is domestic capacity to
produce BBD beyond the 1.0 billion gallon floor, EPA finalized a 2013 BBD mandate of 1.28
billion gallons,32 and has proposed the same level for 2014 and 2015.33
If the EPA administrator (in consultation with the Secretaries of Energy and Agriculture)
determines that there are significant market circumstances (including feedstock disruptions) “that
would make the price of BBD fuel increase significantly,” the administrator may reduce the
amount mandated for up to 60 days.34 The administrator may extend the waiver for no more than
an additional 60 days. To date EPA has not exercised this authority.
It should be noted that tax credits that have supported the development of biomass-based diesel
fuels expired at the end of 2013.35 Without the credits, it is unclear how much BBD will be
produced in 2014. It is possible that the expiration of the credit could constrain BBD supply in
2014 or later years. The tax credits have expired and been extended (sometimes retroactively)
several times.
30 API v. EPA, 706 F.3d 474 (D.C. Cir. 2013).
31 In this way, biomass-based diesel credits generated in 2009 can be used for compliance in 2009-2010. If the rule
applied only to 2010, those credits generated by fuel blenders in 2009 would have been useless.
32 Environmental Protection Agency, Regulation of Fuels and Fuel Additives: 2013 Biomass-Based Diesel Renewable
Fuel Volume, Prepublication Version, Washington, DC, September 14, 2012, http://www.epa.gov/otaq/fuels/
renewablefuels/documents/rfs-biomass-diesel-std-fr.pdf.
33 U.S. Environmental Protection Agency, “2014 Standards for the Renewable Fuel Standard Program; Proposed Rule,”
78 Federal Register 71737, November 29, 2013.
34 However, the amount may not represent more than 15% of the total required amount for that year.
35 For more information on BBD tax credits and other biofuels incentives, see CRS Report R42566, Alternative Fuel
and Advanced Vehicle Technology Incentives: A Summary of Federal Programs, by Lynn J. Cunningham et al.
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Reductions in the RFS
Starting in 2016, if the administrator waives a significant share of the above requirements, she
must reduce the required volumes in all subsequent years. Specifically, she must reduce the
applicable amounts in future years if she waives any of the above requirements by
• 20% or more for two consecutive years; or
• 50% or more in a single year.
For example, if the administrator reduced the overall RFS requirement by 6.0 billion gallons in
both 2017 and 2018, then she would be required to reduce the total RFS requirement by 6.0
billion gallons in 2019 and beyond. The one exception is that these reductions in the RFS would
not apply to the requirements before calendar year 2016.
Effects of a Waiver
Questions have been raised over how a waiver approval would affect food and fuel markets. As
these markets are extremely complex, there is no simple answer. The effects of a waiver would
likely depend on many factors:
• the degree to which the RFS requirements are relaxed under the waiver;
• the duration of the waiver;
• the scope of the waiver (cellulosic biofuel, biomass-based diesel, or the entire
program);
• whether the waiver is extended; and
• prevailing supply and prices for oil, gasoline, biofuels, and feedstock
commodities.
In the specific case of the 2010 waiver for cellulosic biofuel, a key question was whether this
waiver would undermine the credibility of the mandates in future years and undercut investment.
As EPA noted in the final rule establishing the expanded RFS, “In the proposal, we did a
preliminary assessment of the cellulosic biofuel industry to arrive at the conclusion that it was
possible to uphold the 100 million gallon standard in 2010 based on anticipated production.”36
In the final rule on the RFS expansion, EPA did not state whether or not the agency believed there
would be sufficient capacity to meet the cellulosic mandates in coming years (250 million gallons
in 2011, 500 million gallons in 2012, and 1 billion gallons in 2013), although EPA stated that “it
is remarkable how much progress the industry has made in such a short time, and there is a
tremendous growth opportunity for cellulosic biofuels over the next several years.”37 Ultimately,
for 2010 thorough 2013, EPA found that there was insufficient production capacity to meet the
scheduled levels of cellulosic biofuel, a situation likely to be continued in 2014. If EPA continues
36 U.S. Environmental Protection Agency, Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel
Standard Program; Final Rule, EPA-HQ-OAR-2005-0161, Washington, DC, February 3, 2010, p. 173,
http://www.epa.gov/otaq/renewablefuels/rfs2-preamble.pdf.
37 Ibid., p. 178.
Congressional Research Service
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Waiver Authority Under the Renewable Fuel Standard (RFS)
to find that mandates in later years likewise are unachievable, and if investors assume that future
waivers are unavoidable, further investment in cellulosic biofuel refineries may be limited.
Similarly, EPA’s proposal to partially waive the overall RFS requirements for 2014 may hamper
investment in biofuels production capacity. On the other hand, requiring smaller amounts of
biofuels in 2014 may put downward pressure on corn demand and corn prices, which could affect
many other markets.
Author Contact Information
Brent D. Yacobucci
Section Research Manager
byacobucci@crs.loc.gov, 7-9662
Congressional Research Service
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