This column began with an analysis of a second factor that played into the EPA’s decision with regard to the request to grant a waiver of the RFS volumetric requirement—the constraint that the waivers are to be issued for no more than a year at a time.
A third issue that EPA’s waiver denial spent some time examining was the criteria it was legally required to use in deciding whether or not to grant the requested waivers.
The EPA writes, “in determining whether these waiver requests should be granted or denied, our decision is based on the relevant criteria for a waiver set forth in [legislation] — whether implementation of the RFS volume requirements would severely harm the economy of a State, a region or the United States.”
Thus the EPA concludes that the “straightforward meaning of this provision is that implementation of the RFS program itself must be the cause of the severe harm. We found that the language provided by Congress does not support the interpretation that EPA would be authorized to grant a waiver if it found that implementation of the program would significantly contribute to severe harm.”
If the implementation of the RFS is the cause of the severe economic harm—EPA reasons—then the implementation of the waiver must mitigate the harm. If the implementation of a waiver does not reduce corn prices and increase the amount of corn available for other uses in the one-year timeframe EPA must use in its analysis, it must conclude that the RFS volumetric requirement is not the “cause” of the severe harm.
We remember in high school English class how frustrated we would feel when the teacher would ask us to figure out what a writer meant in writing a particular sentence or line of poetry. It seemed to us like a lot of useless nitpicking. Well, in this decision the EPA spent some time nitpicking by examining the meaning of three words: “would” and “severely harm” in their statutory context.
From an analytical perspective the “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.”
“In [a previous] waiver determination we noted that Congress specifically provided for a lesser degree of confidence in a related waiver provision…. That provision applies for just the first year of the RFS program, and provides for a waiver of the 2006 requirements based on a study by the Secretary of Energy of whether the program ‘will likely result in significant adverse impacts on consumers in 2006.’ (Emphasis supplied). The term ‘likely’ generally means that something is at least probable, and EPA believes that the term ‘would’…means Congress intended to require a greater degree of confidence under the waiver provision at issue here.”