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March 5, 2013

EPA Identifies Additional Qualifying Renewable Fuel Pathways under the RFS Program

Bergeson & Campbell, P.C.

On March 5, 2013, the U.S. Environmental Protection Agency (EPA) published in the Federal Register an important final rule certifying additional fuel pathways that meet the biomass-based diesel, advanced biofuel, or cellulosic biofuel lifecycle greenhouse gas (GHG) reduction requirements under the Renewable Fuel Standard (RFS) Program. The final rule describes EPA’s evaluation of advanced biofuels produced from camelina (Camelina sativa) oil and energy cane plants, includes an evaluation of renewable gasoline and renewable gasoline blendstocks, and clarifies EPA’s definition of “renewable diesel.” EPA states that the inclusion of these pathways “creates additional opportunity and flexibility for regulated parties to comply with the advanced and cellulosic [biofuel] requirements of EISA and provides the certainty necessary for investments to bring these biofuels into commercial production from these new feedstocks.” According to the notice, EPA is not making final determinations on biofuels produced from giant reed (Arundo donax) or napier grass (Pennisetum purpureum) or biodiesel produced from esterification. EPA “continue[s] to consider the issues concerning these proposals, and will make a final decision on them at a later time.” The final rule will be effective May 6, 2013. A fact sheet on the final rule is available online.


EPA first issued this rule as a direct final rule on January 5, 2012, with a parallel publication of a proposed rule. EPA received adverse comment on the direct final rule necessitating its withdrawal on March 5, 2012. More information on the direct final rule is available online.

According to the March 5, 2013, final rule, the adverse comments submitted to EPA highlighted the concern that, by approving certain new feedstock types under the RFS Program, EPA would encourage their introduction or expanded planting without considering their potential impact as invasive species. EPA states that the degree of concern “depended somewhat on the feedstock.” Commenters noted that camelina and energy cane are not “native species,” while giant reed (Arundo donax) or napier grass (Pennisetum purpureum) have been identified as invasive species in certain parts of the country. In the March 5, 2013, final rule, EPA states that the available information does not raise significant concerns about the threat of invasiveness and related GHG emissions for camelina. EPA believes that the production of camelina is unlikely to spread beyond the intended borders in which it is grown, which is consistent with the assumption that significant expenditures of energy or other sources of GHGs will not be required to remediate the spread of this feedstock.


The biofuels industry advocated heavily that EPA should approve as soon as possible these pathways, including feedstocks, in its January 5, 2012, direct final rule, as well as several other new pathways/feedstocks, to help industry meet the volumetric gallon targets for blending of cellulosic biofuels under the law. The biofuels industry and RFS advocates have criticized EPA for taking too long to approve new pathways under the RFS Program. Because of EPA’s delay, critics claim that companies working to produce advanced biofuels made from feedstocks and processes not yet sanctioned by EPA as approved pathways are not able to count on their biofuels qualifying for Renewable Identification Numbers (RIN) credit under the RFS Program. The final rule should be welcome news to stakeholders planning to use these pathways and feedstocks for advanced biofuels production.