CFACT Senior Policy Analyst Bonner Cohen testified to the Environmental Protection Agency (EPA) on the newly proposed Renewable Fuel Standard (RFS) rule. Here are his comments in full:
Public Comments Submitted to the United States Environmental Protection Agency (EPA) on the 2023-2025 RFS Proposed Rule
Presented at a Virtual Hearing
January 10, 2023
By the Committee for a Constructive Tomorrow (CFACT)
Thank you very much for the opportunity to present comments on this important issue. In light of the complexity of EPA’s proposal and the three-minute time limit for testimony, I will limit my remarks to one, albeit crucial, element of the proposed rule. The subject I will address is the provision unilaterally creating a new category of Renewable Identification Numbers (RINs) known as eRINs, with the “e” standing for electricity.
It is important to remember that the 2005 statute that created the RFS was designed for liquid fuels, such as gasoline, diesel, or ethanol, not for electricity used to power electric vehicles (EVs). Electricity is not a liquid transportation fuel and thus lacks the statutory qualification to be included in the RFS. That would require separate legislation from Congress. Furthermore, the statute authorizes the establishment of RINs; it does not authorize the creation of eRINs. EPA has no statutory authorization for the establishment of eRINs.
Using language clearly in line with the RFS program’s mission to regulate liquid fuels, EPA is proposing to increase the overall RFS to 22.68 billion gallons in 2025 from 20.63 gallons in 2023. Under the proposed rule, obligated parties, i. e. refiners, would have no option but to comply with these mandates by buying eRINs credits from EV manufacturers. As EPA explains, the new eRINs credits will “incentivize activities that can increase electrification of the fleet, which could include lowering the cost of EVs and/or increasing the availably (sic) [the agency clearly meant availability] of public access charging stations.”
In its effort to promote, that is, force electrification of the fleet through regulatory fiat, EPA is treating electricity as if it were a liquid, a move that is a back-door subsidy to EV manufacturers, from which obligated parties will have to purchase eRINs. While the proposed rule may be able to withstand challenges in the lower courts, it is not likely to survive Supreme Court review. In West Virginia v. EPA, the Supreme Court ruled that in matters relating to “major questions,” federal agencies must have specific congressional authorization to carry out a regulatory action. Mandating the composition of transportation fuel nationwide certainly qualifies as a “major question,” and EPA has no such congressional authorization. EPA’s attempt to circumvent the major questions doctrine may not survive its day in court.
Thank you very much.
Bonner Russell Cohen, Ph. D.
Senior Policy Analyst
Committee for a Constructive Tomorrow