Lawsuits in the Fall: EPA Subject to Lawsuit Brought by Center for Biological Diversity

September 11, 2023

September in Iowa is just starting to feel a bit like fall. I am so ready for comfy socks, oversized sweatshirts, pumpkin spice, and the feeling of impending lawsuits…wait, what? EPA has recently “fallen” subject to many lawsuits filed by many different entities from several different market positions, but this post is going to focus on the one between EPA and the Center for Biological Diversity.

Recently, the Center for Biological Diversity (CBD) filed suit against EPA for the Renewable Volume Obligations (RVOs) as part the Renewable Fuel Standard (RFS) “Set” rule released this past June. More specifically, CBD is alleging that EPA violated the Endangered Species Act by failing to consider how the RFS, by encouraging corn and soybean growth, threatens the lives of various endangered species. The underlying significance of their claim is that agricultural land, such as corn and soybean fields, can be sprayed with pesticides and fertilizers which can cause run-off into neighboring water supply. As a result, various species of animals who consume the neighboring water source suffer negative effects as a result of ingesting pesticides and fertilizers from the run-off.

Government Affairs Director for CBD, Brett Hartl, paints a pretty grim picture of EPA not taking the endangered species act into consideration. CBD’s press release on the matter quotes Director Hartl as saying, “…EPA has used every dirty trick in the book to avoid an honest assessment of the massive environmental harms caused by its renewable fuel program. These renewable fuels requirements mean millions more acres of land will be lost, our streams and rivers will choke with more pollution and coastal dead zones will continue to expand. The Biden administration failed to even modestly reform this boondoggle and crumbled again in the face of political pressure from powerful special interests.” The CBD press release goes on to say “[i]n its 2018 report to Congress on the renewable fuel program, the EPA concluded that 4 million to 7.8 million acres of land had been converted to growing corn and soybeans since the program’s enactment in 2005. The rate of land conversion was higher in areas closer to ethanol biorefineries.” Sounds about as dark as my sense of humor.

But is it true? Is EPA really endangering several different species of animals by failing to recognize the environmental hazards growing the RFS may cause? While I can’t directly answer that question, I can talk to you about what EPA considers before it published “Set.” EPA monitors the impact the RFS might have on so many different areas. When EPA published the final “Set” rule, it also published something called the Regulatory Impact Analysis (RIA). The RIA examines the impact EPA’s regulatory requirements might have on the environment, food prices, fuel prices, job creation, future fuel energy density, and fuel economy costs…and those aren’t even all the things EPA considers. Not only does EPA consider all types of things, EPA started monitoring and collecting data points as early as 2007, just two years after the implementation of the first iteration of the RFS. ….that’s a lot of data points, just saying…

Another thing to consider is that EPA is not the only federal agency responsible for collecting and analyzing certain data. Think of it this way: sometimes, EPA farms out specific areas that may affect the RFS to other agencies better situated to evaluate the data. For example, EPA works in conjunction with the Department of Energy, the U.S Wildlife and Fisheries Service, the National Marine Fisheries Service, and the United States Department of Agriculture, just to name a few. This is just my opinion, but if EPA was going to harm endangered species…seems like they might have discovered that by now…

Since CBD filed a lawsuit against EPA, Growth Energy has filed a Motion to Intervene (“Intervenor’s Brief”). Real quick, a motion to intervene is a motion put forth before the court in a lawsuit in which the person or entity filing the motion is asking the court to take the defendant’s place. Why, in the name of all things holy, would anyone ever do that? Sometimes, entities that aren’t named in a lawsuit have a vested interest in the outcome of the suit. For example, Growth Energy wants to make sure that the rules for “Set” that they’ve already sued EPA to release remain unchanged. So, to ensure their interests are met, Growth Energy is “stepping into EPA’s shoes” and facing CBD in the current suit.

Will Growth Energy be successful in this claim? That’s completely up to the court reviewing this motion. I will say, however, in the brief filed as part of their motion, Growth Energy noted that “Growth Energy has successfully intervened in every lawsuit challenging EPA’s annual RFS standards.” It seems likely that this motion will be upheld by the court, but again, this is a matter that is entirely left up to the court.

So, why should you care about this animal of a lawsuit? Because, if the court decides to side with CBD’s point, EPA will be back in the boat of re-evaluating “Set.” This could include re-releasing a rule which alters the published RVOs. Think 2020 final RVOs but with more animals.

Is this likely to happen? On the one hand, CBD has already sued EPA for its release of the 2020-2022 RVOs and to date, has not been successful on that challenge. On the other, this is an entirely different challenge for an entirely different rule that, for the first time in the history of the RFS, was not subject to the same statutory consideration as in previous years. In any case, leaves will fall, time will progress, and the courts will decide whether EPA’s rule “falls” to CBD’s challenge.