ELR Citation: 43 ELR 20026
No(s). 12-1139 (D.C. Cir. Jan 25, 2013)

The D.C. Circuit vacated EPA's 2012 projection of cellulosic biofuel production under the renewable fuel standard (RFS) program. As part of the RFS program, CAA §211(o)(7)(D)(i) requires EPA to determine the "projected volume of cellulosic biofuel production" for each calendar year based on an estimate of the Energy Information Administration. When that projection is less than the mandated volume, EPA is to "reduce the applicable volume of cellulosic biofuel . . . to the projected volume." The applicable volume for a particular fuel determines how much of that fuel refiners, importers, and blenders must purchase each year in order to comply with the RFS program. In its 2012 projection, EPA projected that 8.65 million gallons of cellulosic biofuel would be produced in 2012. Although the project falls well short of the amount mandated by Congress for that year, the court ruled that EPA's projection was overly optimistic. EPA is correct that one of Congress' stated purposes in establishing the current renewable fuel standard program was to "increase the production of clean renewable fuels." But that general mandate does not mean that every constitutive element of the program should be understood to individually advance a technology-forcing agenda, at least where the text does not support such a reading. Here, neither the text of §211(o)(7)(D)(i) nor the general structure of the RFS program supports EPA's decision to adopt a methodology in which the risk of overestimation is set deliberately to outweigh the risk of underestimation. Section 211(o)(7)(D)(i)'s reference to the "projected volume of cellulosic biofuel" seems plainly to call for a prediction of what will actually happen. And EPA points to no instance in which the term "projected" is used to allow the projector to let its "aspirations for a self-fulfilling prophecy" divert it from a neutral methodology. Because EPA's methodology for making its cellulosic biofuel projection did not take neutral aim at accuracy, the Agency exceeded its authority.