Notice of Decision Regarding the State of Texas Request for a Waiver of a Portion of the Renewable Fuel Standard, 47168-47184 [E8-18738]
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47168
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Notices
TABLE 1.—REGISTRATIONS WITH REQUESTS FOR AMENDMENTS TO DELETE USES IN CERTAIN PESTICIDE REGISTRATIONS
EPA Registration
No.
1448-92
Product Name
Active Ingredient
1-Methyl-3,5,7-triaza-1azoniatricyclodecane Chloride (Busan
1024)
BUSAN 1024
Users of these products who desire
continued use on crops or sites being
deleted should contact the applicable
registrant before September 12, 2008 to
discuss withdrawal of the application
for amendment. This 30–day period will
also permit interested members of the
public to intercede with registrants prior
to the Agency’s approval of the deletion.
Table 2 of this unit includes the
names and addresses of record for all
registrants of the products listed in
Table 1 of this unit, in sequence by EPA
company number.
Delete from Label
laundry starch, petroleum production and recovery, textiles,
papermaking chemicals and coatings, metalworking fluids
V. Provisions for Disposition of Existing
Stocks
The Agency has authorized the
registrants to sell or distribute product
under the previously approved labeling
for a period of 18 months after approval
of the revision, unless other restrictions
have been imposed, as in special review
actions.
AGENCY:
No. EPA-HQ-OAR–2008–0380. All
documents and public comment in the
docket are listed on the
www.regulations.gov Web site. Publicly
available docket materials are available
either electronically through
www.regulations.gov or in hard copy at
the Air and Radiation Docket in EPA
Headquarters Library, EPA West
Building, Room 3334, 1301 Constitution
Ave., NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Reading Room is (202)
566–1744. The Air and Radiation
Docket and Information Center’s Web
site is https://www.epa.gov/oar/
docket.html. The electronic mail (email) address for the Air and Radiation
Docket is: a-and-r-Docket@epa.gov, the
telephone number is (202) 566–1742,
and the Fax number is (202) 566–9744.
FOR FURTHER INFORMATION CONTACT:
James W. Caldwell, Office of
Transportation and Air Quality,
Mailcode: 6406J, Environmental
Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460;
telephone number: (202) 343–2802; email address: Caldwell.jim@epa.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY: The Governor of the State of
Texas requested a waiver of 50 percent
of the renewable fuel standard (RFS or
RFS mandate) for the time period from
September 1, 2008 through August 31,
2009, pursuant to section 211(o)(7) of
the Clean Air Act (the Act), 42 U.S.C.
7545(o)(7). Based on a thorough review
of the record in this case, EPA finds that
the evidence does not support a
determination that implementation of
the RFS mandate during the time period
at issue would severely harm the
economy of a State, a region, or the
United States. EPA is therefore denying
the request for a waiver. In this Notice
EPA is also providing guidance on the
Agency’s general expectations for future
waiver requests.
DATES: Petitions for review must be filed
by October 14, 2008.
ADDRESSES: EPA has established a
docket for this action under Docket ID
I. Executive Summary
The RFS program, which requires the
use of renewable fuels in the U.S.
transportation sector, was originally
adopted by Congress in the Energy
Policy Act of 2005 (EPAct). This
program was recently modified by
Congress in the Energy Independence
and Security Act of 2007 (EISA). The
RFS program provides that the
Administrator, in consultation with the
Secretaries of Agriculture and Energy,
may waive the national renewable fuel
volume requirements, in whole or in
part, if the Administrator determines
that implementation of the requirement
would severely harm the economy or
environment of a State, region, or the
United States (see Clean Air Act section
211(o)(7)(A)).
On April 25, 2008, the Governor of
the State of Texas requested a fifty
percent waiver of the national volume
requirements for the renewable fuel
standard (RFS or RFS mandate). Texas
List of Subjects
Environmental protection, Pesticides
and pests, Antimicrobials, Busan 1024.
TABLE 2.—REGISTRANTS REQUESTING
AMENDMENTS TO DELETE USES IN
CERTAIN PESTICIDE REGISTRATIONS
Dated: August 1, 2008.
Mark A. Hartman,
Acting Director, Antimicrobials Division,
Office of Pesticide Programs.
[FR Doc. E8–18612 Filed 8–12–08; 8:45 am]
EPA Company Number
Company Name and
Address
BILLING CODE 6560–50–S
1448
Buckman Laboratories, Inc.
1256 North McLean
Blvd.
Memphis, TN 38134
ENVIRONMENTAL PROTECTION
AGENCY
III. What is the Agency’s Authority for
Taking this Action?
Section 6(f)(1) of FIFRA provides that
a registrant of a pesticide product may
at any time request that any of its
pesticide registrations be amended to
delete one or more uses. The FIFRA
further provides that, before acting on
the request, EPA must publish a notice
of receipt of any such request in the
Federal Register. Thereafter, the
Administrator may approve such a
request.
ebenthall on PRODPC60 with NOTICES
IV. Procedures for Withdrawal of
Request
Registrants who choose to withdraw a
request for cancellation must submit
such withdrawal in writing to the
person listed under FOR FURTHER
INFORMATION CONTACT, postmarked
before September 12, 2008. This written
withdrawal of the request for
cancellation will apply only to the
applicable FIFRA section 6(f)(1) request
listed in this notice. If the products have
been subject to a previous cancellation
action, the effective date of cancellation
and all other provisions of any earlier
cancellation action are controlling.
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Notice of Decision Regarding the State
of Texas Request for a Waiver of a
Portion of the Renewable Fuel
Standard
Environmental Protection
Agency (EPA).
ACTION: Notice.
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Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Notices
based its request on the assertion that
the RFS mandate is unnecessarily
having a negative impact on the
economy of Texas, specifically that
increased ethanol production is
contributing to increased corn prices
which are negatively affecting its
livestock industry and food prices. EPA
published in the Federal Register a
notice of receipt of this request and
invited public comment on all issues
relevant to making a decision on Texas’s
request.
After considering all of the public
comments, and consulting with the
Secretaries of Agriculture and Energy,
EPA has determined that the waiver
request should be denied. In making
this decision, EPA has interpreted the
statutory provisions to require: a
determination based on the expected
impact of the RFS program itself, a
generally high degree of confidence that
implementation of the RFS program
would severely harm the economy of a
State, region, or the United States, and
a high threshold for the nature and
degree of harm by requiring a
determination of severe harm. EPA and
almost all commenters recognize that
there are many factors that affect the use
of biofuels in the U.S. and the overall
impact of such use. However, the RFS
waiver provision calls for EPA to
evaluate a much narrower set of issues,
focusing on just the impact of the RFS
mandate.
With this framework in mind, EPA
evaluated all of the evidence concerning
the issues that are relevant under the
waiver provision. In its supplemental
comments, Texas requested that the
waiver request focus on the 2008/2009
corn marketing year. EPA agrees that
looking at the impact with and without
a waiver over this time frame is an
important way to identify the impact of
implementation of the RFS program.
Several commenters submitted
modeling analyses that looked at the
impact of a waiver of the RFS mandate
on ethanol production, corn prices, fuel
prices, and other related impacts. In
addition to evaluating the information
submitted by Texas and other
commenters, the Agency conducted its
own analysis. In consultation with the
United States Department of Agriculture
(USDA) and the United States
Department of Energy (DOE), EPA
reviewed several economic models and
chose a model created by researchers at
Iowa State University (ISU model) to
analyze the impact of the RFS on corn,
ethanol, and gasoline prices based on
uncertainty in key variables such as
crop yields and crude oil prices. As part
of our analysis, EPA reviewed the
underlying data and assumptions in the
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ISU model for their appropriateness. In
this context, EPA believes the ISU
modeling reflects the most recent data
available, is well designed and
documented, and provides a number of
advantages over other approaches to
analyzing the issues relevant for this
decision. EPA also considered current
market conditions influencing the
production of ethanol in the U.S. such
as high oil prices and the large existing
production capacity of the U.S. ethanol
industry, as well as other empirical data
including historical and current
Renewable Identification Number (RIN)
credit prices.
First, after weighing all of the
evidence before it, EPA determined that
the evidence does not support a finding
that implementation of the RFS
‘‘would’’ harm the economy of a State,
region, or the United States, because the
evidence does not reach the generally
high degree of confidence required for
issuance of a waiver under CAA section
211(o)(7)(A). On this issue, EPA believes
that this body of information supports
the determination that the most likely
result is that the RFS would have no
impact on ethanol production volumes
in the relevant time frame, and therefore
no impact on corn, food, or fuel prices.1
Second, on the issue of the severity of
any harm, the weight of all of the
evidence also indicates that were the
RFS mandate to have an impact on the
economy during the 2008/2009 corn
marketing year, it would not be of a
nature or magnitude that could be
characterized as severe. Even in the
modeled scenarios where a waiver of
the RFS mandate might reduce the
production of ethanol, the resulting
decrease in corn prices is anticipated to
be small (on average $0.30 per bushel of
corn), and there would be an
accompanying small increase in the
price of fuel (on average $0.01 per
gallon in fuel costs). Such levels of
potential impacts from the RFS program
do not satisfy the high threshold of
harm to the economy to be considered
severe. We also conducted a sensitivity
analysis on a low probability scenario
with larger potential impacts, the results
of which are presented below.
EPA also received comment on
several issues not associated with the
economic impacts of RFS. These
include comments on the general
economic and environmental impacts of
the recent increase in biofuels, and the
effect of the use of biofuels on
commodity markets. EPA recognizes
1 As discussed later, EPA believes that this body
of information also supports, the determination that
implementation of the RFS would have no
significant impact in the relevant time frame.
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that Texas and many parties, both those
supporting the waiver and those
opposing the waiver, have raised issues
of great concern to them and to others
in the nation concerning the role of
biofuels in our country. However, the
issue before the Agency in this case is
much more limited, as described below
in our discussion of EPA’s authority
under section 211(o)(7)(A) of the Act.
Based on a thorough review of the
record in this case and by applying the
evidence to the statutory criteria, EPA
finds that the evidence does not support
making a determination that
implementation of the mandate would
severely harm the economy of a State,
region, or the United States.
This decision on the Texas waiver
request is based on current
circumstances and market conditions.
However, we recognize that significant
changes could occur in the future with
respect to the multiple factors related to
the production and use of renewable
fuels in the U.S. transportation sector.
EPA is committed to monitoring the
implementation of the renewable fuels
program and its impact on the economy
and environment.
This is the first RFS waiver request to
be submitted to EPA and many
important issues were raised and
discussed in the public comment
process. In addition to announcing and
explaining EPA’s decision on the Texas
waiver request, in this Notice the
Agency is also providing guidance to
interested parties on its expectations
concerning future requests for a waiver.
II. Overview of RFS Program
The Energy Policy Act of 2005
(EPAct) amended the Clean Air Act to
establish a Renewable Fuel Standard
(RFS) Program and gave EPA
responsibility for implementing it.
EPAct required EPA to issue regulations
ensuring that gasoline sold in the U.S.,
on an annual average basis, contained a
specified volume of ‘‘renewable fuel.’’
The mandate schedule began at 4.0
billion gallons of renewable fuel in
2006, and increased to 4.7 in 2007, 5.4
in 2008, 6.1 in 2009, 6.8 in 2010, 7.4 in
2011, and 7.5 billion gallons in 2012.
The Energy Independence and Security
Act of 2007 (EISA) amended the RFS
program by extending the years in
which Congress specified the required
volume of renewable fuels by ten years,
increasing the required volumes for the
renewable fuel mandate, and adding
new, separate mandates starting in 2009
for advanced biofuels, including
cellulosic biofuel and biomass-based
diesel. EPAct set the 2007 mandate for
renewable fuel at 4.7 billion gallons and
the 2008 mandate at 5.4 billion gallons.
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EISA increases the 2008 and 2009 RFS
renewable fuel mandates to 9.0 billion
and 11.1 billion gallons. EISA also
imposed additional requirements for the
use of advanced biofuel and biomassbased diesel in 2009, included within
the overall mandate for 11.1 billion
gallons of renewable fuel in 2009.2
EPAct had the statutory goal of
increasing the volume of renewable
fuels that are required to be used in the
transportation sector and Congress
furthered that goal with the passage of
EISA. In this context, implementation of
EISA is aimed at reducing dependence
on foreign sources of energy, increasing
the domestic supply of energy, and
diversifying the nation’s energy
portfolio by requiring the transition
from petroleum-based fuels to bio-based
alternatives in the transportation sector.
In addition, as part of EISA, Congress is
requiring EPA to perform a life-cycle
analysis of emissions of greenhouse
gases associated with the full lifecycle
of renewable fuels, and is requiring a
minimum level of greenhouse gas
reduction to qualify for advanced
biofuel, cellullosic biofuel and biomassbased diesel. This will be further
discussed in EPA’s upcoming second
phase renewable fuel standard
rulemaking (RFS2), which will
implement the renewable fuels
provisions of EISA.
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III. EPA’s Administrative Process
On April 25, 2008, the Governor of
Texas submitted a request to the
Administrator under section 211(o)(7) of
the Act for a waiver of 50 percent of the
RFS ‘‘mandate for the production of
ethanol derived from grain.’’ The
request claims that the mandate is
unnecessarily having a negative impact
on the economy of Texas and driving up
global food prices. In its request Texas
specifically identified increased corn
prices as having a negative effect on its
livestock industry and that a waiver
would also provide needed relief to
consumers at the grocery store. This
initial request did not include
substantive supporting data or
analyses.3
2 A more detailed discussion of the requirements
for different types of biofuels is included in Section
V.
3 Texas subsequently submitted comments during
the public comment period, including a recent
briefing paper from the Agriculture and Food Policy
Center at the Texas A&M University along with an
economic analysis on the implications of a RFS
waiver on the price of corn and impacts on the
livestock industry as well as impacts on the
petroleum markets and the broader economy. Texas
also clarified that it was asking for a ‘‘50-percent
reduction in the corn-derived, volumetric ethanol
mandates, * * * effectively requesting that EPA, for
the foreseeable future, return the RFS system to the
status quo prior to enactment of EISA i.e., to the
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On May 22, 2008, EPA published a
notice requesting comment on the
petition submitted by Texas as well as
any matter that might be relevant to
EPA’s action on the petition,
specifically including (but not limited
to) information that would enable EPA
to: (a) Evaluate whether compliance
with the RFS is causing severe harm to
the economy of the State of Texas; (b)
evaluate whether the relief requested
will remedy the harm; (c) determine to
what extent, if any, a waiver approval
would change demand for ethanol and
affect corn or feed prices; and (d)
determine the date on which a waiver
should commence and end if it were
granted.4 As stated in EPA’s notice for
comment, granting a waiver would
reduce the national volume
requirements under section 211(o)(2) of
the Act, which would have effects in
areas of the country other than Texas.
Therefore, EPA invited comment on all
issues relevant to whether and how the
Administrator might exercise his
discretion under this waiver provision
of the Act, including but not limited to
the impact of a waiver on other regions
or parts of the economy, on the
environment, on the goals of the
renewable fuel program, on appropriate
mechanisms to implement a waiver if a
waiver were determined to be
appropriate, and any other matters
considered relevant.
EPA’s public comment period closed
on June 23, 2008. EPA received in
excess of 15,000 comments during the
comment period; the majority of the
comments were short statements
generally in support of the Texas
request. EPA also received numerous
comments from various trade
organizations and businesses, Governors
and other elected officials, and
environmental organizations supporting
or opposing the waiver, many of which
included references to various studies
and reports which are addressed below.
much more moderate trajectory that prevailed
under the Energy Policy Act of 2005.’’ Texas states
its preference that this be accomplished through a
waiver that corresponds to the 2008–2009 crop year
(i.e., September 1, 2008 through August 31, 2009).
The initial Texas waiver request of April 25, 2008
(Texas waiver request) can be found at EPA–HQ–
OAR–2008–0380–0058. The Texas supplemental
comments of June 23, 2008 (Texas supplemental
comments) can be found at EPA–HQ–OAR–2008–
0380–0526. In addition, Texas submitted additional
comments after the close of the comment period, on
August 6, 2008. These comments can be found at
EPA–HQ–OAR–2008–0380. Given the date on
which the additional comments were received,
EPA’s response to them can be found in a
Memorandum to the Docket dated August 7, 2008.
4 73 FR 29753.
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IV. Key Interpretive Issues
As noted above, Section 211(o)(7) of
the CAA provides, in part, that EPA
‘‘may waive the [mandated national RFS
volume requirements] in whole or in
part on petition by one or more States
* * * (i) based on a determination by
the Administrator * * * that
implementation of the requirement
would severely harm the economy or
environment of a State, a region, or the
United States, or (ii) based on a
determination by the Administrator
* * * that there is an inadequate
domestic supply.’’
This is the first EPA action in
response to a petition under this
provision, and as a result EPA is
addressing a number of questions
regarding the scope of this authority.
This section discusses EPA’s position
on the meaning of various key parts of
this provision, including EPA’s views
on the interpretations advanced by
Texas and other commenters. Because
Texas argues that a waiver is justified
under the claim that ‘‘implementation of
the RFS program would severely harm
the economy * * * of a State, a region
or the United States,’’ we have focused
our review on this provision.
1. Implementation of the RFS Itself Must
Severely Harm the Economy
The statute authorizes a waiver where
‘‘implementation of the requirement
would severely harm the economy.’’
Texas and several commenters argue
that high corn prices are causing severe
harm to the Texas and U.S. livestock
industry as well as to low-income
individuals faced with increasing food
costs. They acknowledge that high corn
prices are caused by a number of factors,
but argue that the RFS program is one
of the factors leading to these high
prices, that it is a significant or material
factor, and that this kind of impact from
the RFS program is sufficient to justify
a waiver of the RFS requirements.5
Texas recognizes that the waiver
provision ‘‘speaks in terms of a singular
causal link between the mandate and
the harm (i.e. ‘implementation of the
requirement would severely harm’)’’,
but that ‘‘Congress could not have
intended to predicate a waiver on such
a link because such a situation is never
found in the real world. In the context
of an economy at the scale of a state,
region or nation, outcomes are
determined by multiple factors.
Congress must have meant to pivot a
waiver on whether the mandates would
5 See Texas supplemental comments, National
Cattlemen’s Beef Association at EPA–HQ–OAR–
2008–0380–0418 at 1, and Texas Cattle Feeders
Association at EPA–HQ–OAR–2008–0380 at 1.
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contribute significantly to causing
severe harm, as part of a mix of
forces.’’ 6
We do not agree with the
interpretation Texas offers. The statute
provides that a waiver of the program is
authorized where ‘‘implementation of
the program would severely harm the
economy * * *’’ As recognized by
Texas, the straightforward meaning of
this provision is that implementation of
the RFS program itself must be the
cause of the severe harm.7 Texas would
instead treat the waiver provision as if
Congress had authorized a waiver where
implementation of the program would
significantly contribute to severe harm.
The provision adopted by Congress does
not support the interpretation by Texas.
There are numerous examples in
section 211 and other sections of the
Clean Air Act where Congress
authorized EPA action based on the
contribution made by a factor or
activity, and worded the statute to
clearly indicate this intention. For
example, section 211(c)(1) of the Act
authorizes EPA to control or prohibit a
fuel or fuel additive where it ‘‘causes or
contributes’’ to air or water pollution
that may reasonably be anticipated to
endanger public health or welfare.8
There are also various waiver provisions
where Congress clearly used language
indicating that a waiver could be based
on a determination that there is a
contribution to an adverse result or a
similar lesser degree of casual link to
the adverse result. Section 211(f)(4), for
example, allows EPA to waive a certain
prohibition on fuels and fuel additives
upon a determination that they will not
‘‘cause or contribute’’ to a specified
harm. Likewise section 211(h)(5)(A)
allows EPA to remove a federal Reid
vapor pressure (RVP) waiver if a state
has supporting documentation to show
that the RVP waiver will increase
emissions that ‘‘contribute to air
pollution.’’ Under section 211(m)(3)(A),
EPA may waive the requirement for a
wintertime oxygenated gasoline
program where a State demonstrates
that mobile sources ‘‘do not contribute
significantly’’ to carbon monoxide levels
in the area. Similar language was used
by Congress when it referred to lesser
degrees of adverse impact on
attainment, such as the provision for a
waiver of the oxygenated gasoline
requirement for reformulated gasoline
under section 211(k)(2)(B) (‘‘prevent or
6 Texas
supplemental comments at 14.
supplemental comments at 14.
8 Also see section 202(a)(1) (‘‘cause or
contribute’’); section 213(a)(3), (4) (‘‘cause or
contribute’’ and ‘‘significant contributor’’); and
section 231(a)(2) (‘‘cause or contribute’’).
7 Texas
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interfere with * * * attainment’’) 9 and
section 211(m)(3)(A) (‘‘prevent or
interfere with * * * attainment’’).
However Congress did not use such
language in this waiver provision, and
the omission of any reference to
contribution or similar terms in section
211(o)(7)(A) indicates Congressional
intent to limit the availability of a
waiver to situations where
implementation of the RFS program
itself would severely harm the
economy.10
Texas essentially asks EPA to
interpret this provision as if it was
written to authorize a waiver where
implementation of the RFS program
would ‘‘significantly contribute’’ to
severely harming the economy.
However, Texas offers no explanation of
why a ‘‘significant’’ contribution would
justify such action, as opposed to some
other level of contribution such as a
non-de minimis, marginal, moderate, or
some much more substantial
contribution. In addition, Texas argues
that this is called for because it would
otherwise be impossible to ever
demonstrate that the criteria of a waiver
have been met and Congress could not
have intended this result. Texas asserts
this conclusion of impossibility, but
fails to even attempt to show that this
is the case.
Even if the statute was less clear on
its face EPA would still reject the
approach suggested by Texas. Many
circumstances other than RFS could
lead to impacts on an economic factor
such as increased corn prices. Other
circumstances could be the substantial
or the overriding contributor to such an
economic factor. Under Texas’
interpretation, a waiver could be
authorized where implementation of the
RFS contributed in any significant
manner to such a situation, as long as
the economic factor, overall, was
causing severe harm. This approach
could apply even if the economic harm
was based on this economic factor in
combination with another economic
factor or factors. The degree of harm
actually attributable to implementation
9 This provision of the Clean Air Act was deleted
by the Energy Policy Act of 2005, ending the
requirement that reformulated gasoline (RFG)
contain 2% oxygen content by weight. During the
time that the statutory provision was in effect, EPA
considered and responded to requests to waive the
2% mandate. See Davis v. EPA, 348 F.3d 772 (9th
Cir. 2003).
10 Even the sentence structure used by Congress
indicates that the harm is to come from the RFS
mandate itself. Adding the idea of significant
contribution would call for changing the way
‘‘harm’’ is used from a verb (would * * * harm) to
a noun (would contribute significantly to harm),
and changing the kind of harm from the adverb
severely to the adjective severe. Congress however
did not write it that way.
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of the RFS would not matter. As long as
the RFS would have some significant
effect on some economic factor or
combination of factors that was causing
severe harm from an overall perspective,
then the degree of harm actually
attributable to the RFS would be
irrelevant to EPA’s authority to issue a
waiver. Given the logic of Texas’
approach and recognizing the many
varied and complex interrelationships
in our modern economy, Texas’
interpretation would amount to a very
open-ended and wide ranging waiver
provision; EPA does not believe this is
what Congress intended. EPA believes
that rejecting Texas’ approach, and
implementing a more limited waiver
provision that requires a showing that
the RFS program itself would severely
harm the economy of a State, region or
the U.S., will better implement
Congress’ overall desire to promote the
use of renewable fuels, reflected in
enacting the expanded RFS program and
mandating the increased utilization of
renewable fuels over a number of
years.11
2. There Must Be a Generally High
Degree of Confidence That There Will
Be Severe Harm as a Result of the
Implementation of RFS
The waiver provision indicates that
EPA must find that implementation of
the RFS ‘‘would’’ harm the economy.
We interpret this as indicating that there
must be a generally high degree of
confidence that severe harm would
occur from implementation of the RFS.
Congress specifically provided for a
lesser degree of confidence in a related
waiver provision, section 211(o)(8). That
provision applies for just the first year
of the RFS program, and provides for a
waiver of the 2006 mandate 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’’ in section 211(o)(7)(A)
means Congress intended to require a
greater degree of confidence under the
waiver provision at issue here.
EPA believes that generally requiring
a high degree of confidence that
implementation of the RFS would
11 Indeed, Congress provided for a 9 year
schedule in EPAct and a 14 year schedule in EISA,
specifying the total amounts of renewable fuel that
would be required during those years. Under both
EPAct and EISA the required level of the RFS is to
increase in each year after the end of the statutory
schedule. EPA is to set the required level based on
consideration of various statutory factors, with
Congress specifying a minimum level of growth in
the RFS each year.
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severely harm an economy would
appropriately implement Congress’
intent for yearly growth in the use of
renewable fuels, evidenced by the 2005
and 2007 mandates for such growth. In
addition, it would limit waivers to
circumstances where a waiver would be
expected to provide effective relief from
harm. If there is generally high
confidence that implementation of the
mandate would cause harm, then a
waiver should provide effective relief
from that harm. However in situations
where there is not such a high degree of
confidence, a waiver might disrupt the
expected growth in use of renewable
fuels but there would be no clear
expectation that a waiver would provide
a benefit by reducing any harm. As
discussed below, EPA does not need to
interpret this provision in any greater
detail for purposes of acting on Texas’
petition, as the circumstances in this
case clearly do not demonstrate the
required degree of confidence that
severe harm would occur.
Support for EPA’s interpretation of
this waiver provision is found in an
analogous approach taken by EPA in
applying former section 211(k)(2)(B), the
provision for waiver of the oxygen
content requirement for RFG. In that
provision, Congress provided that EPA
‘‘may’’ waive the oxygen content
requirement upon a determination that
compliance with this requirement
‘‘would’’ prevent or interfere with
attainment of a NAAQS. EPA
interpreted this as calling for the waiver
applicant to ‘‘clearly demonstrate’’
interference before a waiver would be
granted. This interpretation was upheld
in Davis v. EPA, 348 F.3d 772, 779–780
(9th Cir. 2003).
3. ‘‘Severely Harm’’ Indicates That
Congress Set a High Threshold for Grant
of a Waiver
While the statute does not define the
term ‘‘severely harm,’’ the
straightforward meaning of this phrase
indicates that Congress set a high
threshold for issuance of a waiver. This
is also indicated by the difference
between the criteria for a waiver under
section 211(o)(7)(A) and the criteria for
a waiver during the first year of the RFS
program. In section 211(o)(8)(A)
Congress provided for a waiver based on
an assessment of whether
implementation of the RFS in 2006
would result in ‘‘significant adverse
impacts’’ on consumers. A waiver under
section 211(o)(7)(A), however, requires
that implementation ‘‘severely harm’’
the economy, which is clearly a much
higher threshold than ‘‘significant
adverse impacts.’’ It is also instructive
to consider the use of the term ‘‘severe’’
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in CAA section 181(a). Ozone
nonattainment areas are classified
according to their degree of impairment,
along a continuum of marginal,
moderate, serious, severe or extreme
ozone nonattainment areas. Thus, in
section 181, ‘‘severe’’ indicates a level of
harm that is greater than marginal,
moderate, or serious, though less than
extreme. We believe that the term
‘‘severe’’ should be similarly interpreted
for purposes of section 211(o)(7)(A), as
indicating a point that is quite far along
a continuum of harm, though short of
extreme. EPA does not need to interpret
this provision in any greater detail for
purposes of acting on Texas’ petition, as
the circumstances in this case clearly do
not demonstrate the kind of harm that
would be characterized as severe.
4. Harm to the Economy
EPA must also consider the meaning
of the term ‘‘economy’’ in section
211(o)(7)(A)(2). Texas has argued that
the term should be interpreted such that
a showing of severe harm to one sector
of the economy, e.g. the livestock
industry, is sufficient under the statute.
Others argue that there must be a
showing of severe harm to the entire
economy of a State, region or the United
States, including all sectors.12 EPA
believes that it would be unreasonable
to base a waiver determination solely on
consideration of impacts of the RFS
program to one sector of an economy,
without also considering the impacts of
the RFS program on other sectors of the
economy or on other kinds of impact. It
is possible that one sector of the
economy could be severely harmed, and
another greatly benefited from the RFS
program; or the sector that is harmed
may make up a quite small part of the
overall economy. Based on the waiver
request received and, where
appropriate, public comments, EPA
should responsibly review and analyze
the economic information that is
reasonably available regarding the full
impacts of the RFS program and a
possible waiver, including detrimental
and beneficial impacts, before
determining that a waiver of the
program is warranted.13
The statute provides that EPA ‘‘may’’
waive the RFS volume requirement after
finding that implementation of the RFS
program would severely harm the
economy. Therefore, a broad
consideration of economic and other
impacts could be undertaken whether or
12 Commenters include the Renewable Fuels
Association (EPA–HQ–OAR–2008–0380–0479 at 1)
and American Coalition for Ethanol (EPA–HQ–
OAR–2008–0380–0454 at 1–2).
13 This is of course limited by the 90 day time
frame called for in the waiver provision.
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not EPA adopted Texas’ more limited
interpretation of the term ‘‘economy.’’
For example, if EPA rejected Texas’
interpretation, EPA would determine
whether RFS implementation would
severely harm the overall economy of a
State, region, or the U.S. However, if
EPA adopted Texas’ interpretation, and
then found severe harm to a sector of
the economy, EPA would still evaluate
the overall impacts on the economy and
other factors before exercising its
discretion under the ‘‘may’’ clause to
grant or deny the waiver request. EPA
does not need to resolve this issue of
interpretation in this specific waiver
decision. As discussed below the
circumstances here do not warrant a
waiver under either interpretation.
5. EPA Has Broad Discretion in
Determining Whether To Grant a Waiver
Even If Implementation Would Severely
Harm the Economy
As noted above, Congress stated that
EPA ‘‘may’’ grant a waiver if certain
criteria are met, and the term ‘‘may’’
typically denotes discretionary action.
Where Congress intends nondiscretionary action, it typically
employs a term like ‘‘shall.’’ Thus, EPA
believes Congress intentionally gave
EPA discretion in determining whether
to grant or deny a waiver request, even
in instances where EPA finds that
implementation of the program would
severely harm the economy or
environment of a State, region or the
United States, or where there is
inadequate domestic supply. As noted
above, this interpretation allows EPA to
look broadly at all of the impacts of
implementation of the program, and all
of the impacts of a waiver, and does not
limit EPA to looking only at impacts to
the economy, a sector of the economy,
the environment, or domestic supply.
The relief requested by a waiver
applicant will always, under this
provision, be national in character,
hence we expect that EPA will always
want to examine the nationwide effects
of the requested relief, and give
appropriate weight to the range of
anticipated effects. This interpretation
allows EPA to weigh all of the impacts
before deciding to grant or deny a
waiver of the statutory requirements
designed to require the expanded use of
renewable fuels.
V. Technical Analysis of RFS Mandate
In this section, we first examine the
likelihood that implementation of the
RFS will impact the amount of ethanol
produced and consumed over the 2008/
2009 corn marketing year (September 1,
2008 through August 31, 2009), and
thereby impact factors such as the price
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of corn during that time period.14
Second, we evaluate the impacts and
potential degree of harm from
implementation of the RFS on key food
and fuel parameters, such as U.S. corn
prices, livestock feed costs, and fuel
prices. As part of this section, we will
discuss various comments and our
response to them as appropriate.
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1. Likelihood of Impact of
Implementation of the Renewable Fuels
Standard
To analyze the impact of
implementation of the RFS, EPA
evaluated the impact of a waiver of the
standard. This comparison of
circumstances with and without a
waiver identifies the impact properly
associated with implementation of the
RFS program for the 2008/2009
marketing year. To make this
comparison, the EPA first determined
the most appropriate economic
modeling tool to employ for this
purpose. EPA evaluated several models,
including the model developed by
researchers at Texas A&M University
(TAMU model) 15 and the model used
by Dr. Elam of FarmEcon, LLC.16 We
chose a model developed by researchers
at Iowa State University (ISU model) for
a number of reasons. First, we felt it was
critical to use a stochastic model to
capture a range of potential outcomes,
rather than a point estimate, given
potential variation in a number of
critical variables associated with
ethanol production. Second, the ISU
model captures the interaction between
the agriculture markets and the energy
markets, and is able to look at
uncertainty in variables in both sectors.
Given the volatility in both crude oil
and corn prices over the last few years,
the ability of the ISU model to account
for this variability gives the model an
advantage over other models that are
locked into a single projected crude oil
price or corn crop estimate. Third, while
the model has not gone through formal
peer review, the documentation is
straightforward and transparent, and
allows all interested parties to
14 We use the corn marketing year partially
because it is the time period over which Governor
Perry requested the waiver, and partially because it
is the time period over which it is most
straightforward to estimate the impact on corn
prices due to a change in ethanol demand.
15 The March TAMU modeling results were
referenced in Texas’ initial waiver request and cited
by several commenters (EPA–HQ–OAR–2008–
0380–0058). A June update to the March report was
provided in Texas’ supplemental comments (EPA–
HQ–OAR–2008–0380–0526).
16 Several commenters cited the March report by
Dr. Elam (EPA–HQ–OAR–2008–0380–0574). The
Balanced Food and Fuel Coalition also submitted a
June version of the report (EPA–HQ–OAR–2008–
0380–0465).
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understand the assumptions that drive
the results. Finally, the ISU model was
designed to be constantly and quickly
updated with the most recently
available data, such as the World
Agricultural Supply and Demand
Estimate (WASDE) reports.17 This
design feature allows the model to be
policy relevant, given the fact that a
model is only as reliable as the data
contained within it.
The ISU model is a stochastic
equilibrium model that attempts to
capture the most probable prices of
corn, ethanol and fuel given uncertainty
in six variables: Corn acres planted,
corn acres harvested, corn yields, U.S.
corn export demand, crude oil prices,
and the capacity of the U.S. corn
ethanol industry. For each of the
approximately 1000 simulated
scenarios, the model picks a value for a
factor like crude oil price by randomly
selecting from a probability distribution
curve 18 for that factor.19 Since the
probability of the specific value of a
future crude oil price is built into the
distribution curve for crude oil prices,
the greater the probability of a certain
crude oil price the more likely the
model will pick that value for any
scenario. The result is that the
distribution of the results from the
random draws fairly reflects the
probability of the various uncertain
variables. The central tendency of the
random draws represents the most
likely estimate of the future
circumstances. The model is run with
and without a waiver to determine the
impact of a waiver. Details about the
model are included in the June 2008
paper,20 although for the results
described below, several additional
modifications have been made since
June. At EPA’s request, ISU researchers
updated their model with the July 11,
2008 WASDE report. In addition, ISU
researchers also modified the
assumption that ethanol will have to be
priced on an energy equivalent basis for
volumes greater than 10 billion
17 The WASDE is USDA’s forecast of supply and
demand for major U.S. and international crops and
livestock. The information can be found at https://
www.usda.gov/oce/commodity/wasde/.
18 The distribution curves for the stochastic
variables are based on historical information, where
available. Where reliable data is not available,
simplifying assumptions are used. Details are
included in the June 2008 paper (EPA–HQ–OAR–
2008–0380–0548).
19 The model also accounts for the impact of the
blenders’ tax credit and the tariff on imported
ethanol. In the scenarios that were modeled these
factors did not change, hence their impact on
demand for ethanol did not change with and
without a waiver of the RFS.
20 EPA–HQ–OAR–2008–0380–0548.
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47173
gallons.21 As described in the June
paper, the ISU model had previously
assumed ethanol must be priced on an
energy equivalent basis for volumes
over 7.7 billion gallons of ethanol.
Additional details on the model changes
are included in the docket.22
As a result of these updates, the ISU
model projects the average expected
amount of ethanol demanded in the
United States during the 2008/2009 corn
crop year without a waiver will be 11.05
billion gallons, which consists of
approximately 10.67 billion gallons of
domestic production and 380 million
gallons (MG) of imports. ISU’s model
predicts that for 76 percent of the
simulated scenarios, waiving the RFS
mandate would not change the overall
level of corn ethanol production or
overall U.S. ethanol consumption in
2008/2009 because more ethanol would
be demanded than the RFS requires. For
those 76 percent of the scenarios,
waiving the RFS mandate would
therefore have no impact on ethanol
21 Despite the fact that ethanol contains only 2/
3 the energy value of gasoline, it has historically
and continues to be priced to retail consumers the
same as if it is gasoline when it is sold in a gasoline
blend with up to 10 volume percent ethanol (E10).
Consumers are not able to detect the small decrease
in fuel economy that results from a 10 percent
blend, therefore ethanol can be priced based on its
volume, not on its energy equivalent basis with
gasoline. The wholesale price for ethanol has
likewise followed the price of gasoline, on average
being priced over time roughly 8 c/gal less than that
of gasoline, reflecting its octane value, other
blending costs, and distribution costs. In the last
year or so, as ethanol use has continued to increase,
the wholesale price of ethanol has begun to separate
slightly more from that of gasoline as: (1) The
octane value has declined, (2) the distribution costs
have increased to get ethanol to more distant
markets, (3) gasoline prices have increased, and (4)
ethanol is having to compete in markets where
gasoline is priced lower than in past ethanol
markets. In recent months, the wholesale price of
ethanol may also have been influenced by some
temporary limitations in terminal blending
capabilities to blend all the ethanol being produced.
In the long term, as ethanol volumes increase above
about 15 billion gallons, ethanol will saturate the
gasoline market as an E10 blend and additional
volumes of ethanol will have to be consumed in the
form of E85 (a fuel that consists of up to 85 volume
percent ethanol). When sold as E85, consumers will
recognize a reduction in their mileage as compared
to the use of an E10 blend due to the reduced
energy content of ethanol. Therefore, retail pricing
would be expected to take this fuel economy impact
into account and wholesale prices for ethanol will
have to be below that of gasoline to reflect its lower
energy content. While this change in valuation will
not occur until we reach about 15 billion gallons
of ethanol, for our analysis we have conservatively
assumed that this change in valuation will occur at
10 billion gallons to reflect potential short term
limitations in the distribution system. If we had
used 15 billion gallons as the point at which
ethanol must be priced on an energy equivalent
basis, the likelihood that the mandate would be
binding would be lower and the magnitude of the
impacts smaller in the scenarios where the mandate
was binding.
22 See Memorandum to Docket, entitled ‘‘Iowa
State University Modeling Results.’’
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use, corn prices, ethanol prices, or fuel
prices. We refer to that model result as
a 76 percent probability that the RFS
will not be ‘‘binding’’ in the 2008/2009
marketing year. Conversely, in 24
percent of the simulated ISU model runs
the RFS would be binding. In this case,
binding means that in 24 percent of the
random draws of potential corn
production, crude oil prices, and corn
demand, the resulting market demand
for ethanol would be below the RFS
mandate and, therefore, the RFS would
require greater use of ethanol than the
market would otherwise demand. The
binding scenarios are generally those in
which crude oil prices and corn
production are relatively low. In those
cases, the RFS would have an impact on
ethanol use and the food and fuel
markets in the United States.
For the primary analysis, the ISU
model assumes corn ethanol would
account for ten billion gallons of the
RFS mandate during the 2008/2009 corn
crop year. Because the corn crop year is
split over two RFS compliance years,
the 10 billion gallons is based on the
fraction of the corn crop year that would
occur in the 2008 compliance year (onethird) and the 2009 compliance year
(two-thirds). EISA requires 9 billion
gallons of renewable fuels in 2008 and
11.1 billion gallons in 2009; however,
600 million gallons of the 2009 volume
must be advanced biofuels (including
500 million gallons of biomass-based
biofuels). This advanced biofuel volume
is not included in the calculation of the
2008/2009 marketing year mandate,
since the ISU model does not include
cellulosic or biodiesel renewable
fuels.23 As a sensitivity analysis, ISU
researchers also evaluated different
scenarios in which some of the 2008/
2009 mandate was also met with
additional biodiesel production and
renewable identification number (RIN)
credits earned from excess ethanol
production in the 2007 and 2008
compliance years.24 Both of these
changes essentially make the RFS
mandate less binding. We also
conducted a sensitivity analysis that
used a distribution curve for crude oil
23 Although Iowa State analyzed the impact of
waiving 100% of the mandate, the model predicted
no difference between waiving 100% of the
mandate and 50% of the mandate, as the amount
of ethanol demanded under all the scenarios
without the mandate was more than five billion
gallons of ethanol (50% of the mandate).
24 RINs are generated by producers of renewable
fuels, and are used by refiners and importers to
show compliance with the RFS. Excess RINs may
be used as credits for the year following their
generation, e.g., 2007 RINs may be used to show
compliance with the 2008 RFS standard, and 2008
RINs may be used to show compliance with the
2009 RFS standard.
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prices based on a mean crude oil price
of $146/barrel. For that model run, the
probability that the mandate would be
binding decreased to 12%. Clearly, this
assumption makes a difference in the
modeling results. We believe the $125/
barrel mean crude oil price scenario
incorporates the best information
available at this time, but we recognize
that conditions may change in the
future. For purposes of simplicity, only
the results of the primary analysis using
$125/barrel mean crude oil ISU scenario
are presented in this document.
However, the results from the full range
of scenarios are included in the
docket.25
We believe the results provided by the
ISU model are more robust than Elam’s
and TAMU’s estimates for a number of
reasons. Many of the assumptions used
by Elam’s model do not appear to
accurately reflect market forces.
According to Elam’s March paper,26
U.S. gasoline and diesel prices impact
the prices of corn and soybeans, but do
not influence the demand for biofuels.
In other words, the agricultural sector
portion of the model does not appear to
be directly linked to a fuel market
module. Since higher crude oil prices
are one of the major reasons for the
increase in biofuel production, we
believe this assumption is a major short
coming of the model. Furthermore, the
model used by Elam appears to value
ethanol on an energy equivalent basis.27
We believe that ethanol will continue to
be priced on a volumetric basis as long
as most of the ethanol is being blended
as E10.
In his June paper, Elam estimated the
impact of waiving the RFS under two
different scenarios: One based on the
June WASDE projections and one based
on a ‘‘severe weather’’ scenario with a
lower corn crop. Under both scenarios,
Elam predicts ethanol production will
decrease by 2.1 billion gallons with a
50% waiver of the mandate. However,
under both scenarios Elam estimates
that ethanol production will exceed the
mandated levels when the mandate is in
place. We do not find this analysis
plausible, since waiving the mandate
should have little to no effect on ethanol
production if the projected levels of
ethanol demand exceed the mandate. In
addition, we would not expect the same
change in ethanol production to occur
as a result of the waiver when corn
prices are $8.00/bushel and when they
are $5.80/bushel. When corn costs
25 See Memorandum to Docket entitled, ‘‘Iowa
State University Modeling Results.’’
26 EPA–HQ–OAR–2008–0380–057.
27 The lack of model documentation submitted to
the docket with regard to the model limited our
ability to fully compare the results.
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$8.00/bushel, we would expect more
ethanol producers would not be able to
cover their operating costs and would
choose to reduce production. Therefore
there would be a larger potential change
in ethanol production at $8.00/bushel
than at $5.80/bushel, which in turn
would lead to a larger impact from
waiving the mandate. Finally, we
believe the severe weather scenario
presented by Elam overstates the impact
of the recent floods in the Midwest. This
scenario assumes a significant reduction
in corn acres harvested and corn yields
relative to the WASDE estimates. Under
this severe weather scenario, Elam’s
projected corn crop would be 10.85
billion bushels, compared to the higher
July WASDE estimate that 11.7 billion
bushels will be produced in 2008/2009.
Similar to the ISU model, the TAMU
model is a hybrid stochastic simulation
model that estimates the probabilistic
price of corn and production levels of
ethanol with and without various
government biofuel policies over the
next few years. However, we believe
some of the inputs used in the model
are not as current as the inputs used by
the ISU model. In addition, the TAMU
model likely overstates the probability
that the mandate will be binding for two
reasons. First, the projected corn prices
are significantly higher than either the
June or July WASDE reports. Whereas
the July WASDE report (which assumes
the mandate is still in place) predicts
corn prices will be between $5.50–
$6.50/bushel, the TAMU model predicts
that corn prices with the mandate in
place will be between $6.70–$7.96/
bushel depending on the size of the corn
crop. If the TAMU model was re-run
with the July WASDE data, we believe
the results would be closer to the
estimates provided by the ISU model.
Second, we believe that the TAMU
model undervalues ethanol, since it
assumes ethanol must compete with
gasoline on an energy equivalent basis
for all volumes over the quantity
projected to be used to meet
reformulated gasoline (RFG)
requirements (approximately 3 billion
gallons). As discussed in more detail in
the following section, ethanol continues
to be priced in the market at a premium
over its energy content since it is
primarily used as a gasoline extender.
We expect this trend to continue until
significant quantities of ethanol can no
longer be blended as E10 and must be
sold as E85. If the TAMU valued ethanol
on a volumetric basis, we would expect
the model would predict higher
production levels of ethanol, both with
and without the waiver.
TAMU provides information for three
different scenarios: a ‘‘mean corn crop’’,
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a ‘‘95% of mean corn crop’’, and a ‘‘90%
of mean corn crop’’. Using historical
information, TAMU estimates that 79
million acres of corn will be harvested
in 2008/2009 and corn yields will be
153.9 bushels/acre, resulting in a ‘‘mean
corn crop’’ production of 12.1 billion
bushels. The ‘‘95% of mean corn crop’’
scenario evaluates the effects of a 5%
shortfall in corn production (relative to
the mean corn crop scenario), which
corresponds to a crop of 11.5 billion
bushels. The ‘‘90% of mean corn crop’’
scenario evaluates the effects of a 10%
shortfall relative to the mean corn crop,
which corresponds to a corn crop of
10.9 billion bushels. In the mean corn
crop scenario, the TAMU estimates that
the probability that the mandate will be
binding is 42%. In the 95% of mean
corn crop scenario, the TAMU model
predicts that the probability that the
mandate will be binding is 67%, and in
the 90% of mean corn crop scenario, the
probability that the mandate will be
binding is 88%.
Although this mean corn crop
scenario production level is higher than
the July WASDE estimates, the impacts
of this scenario are directionally
consistent with the ISU results. For
example, the TAMU model predicts that
the average expected amount of ethanol
that will be produced in 2008/2009 will
be 10.8 billion gallons, which is higher
than the RFS mandate. In their
47175
comments, however, Texas asserts that
a shortfall in the range of the 5% or 10%
of production ‘‘now appears highly
likely.’’ Therefore, Texas concludes that
the mandate will ‘‘most likely
contribute significantly to causing corn
price increases.’’ In light of the July
WASDE data, which predicts a corn
crop that is larger than both the 90%
mean corn crop and the 95% mean corn
crop scenarios, we believe the 90%
mean corn crop scenario significantly
overestimates the potential impact of
the flooding. We believe the mean corn
crop and the 95% of mean corn crop
scenarios are more credible than the
90% mean corn crop scenario.
TABLE 1—COMPARISON OF KEY STUDIES ESTIMATING CORN AND ETHANOL PRICES AND PRODUCTION LEVELS
Elam scenario
based on
WASDE
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Mean Corn Prices with Mandate ($/bushel) ............................................
Mean Corn Prices with Waiver ($/bushel) ...............................................
Change in Corn Prices with Waiver ........................................................
Mean Corn Production (Billion bushels) ..................................................
Mean Ethanol Price with Mandate ($/gal) ...............................................
Mean Ethanol Price with Waiver ($/gal) ..................................................
Mean Domestic Ethanol Demand w/Mandate (Billion gallons) ...............
Mean Domestic Ethanol Production w/Waiver (Billion gallons) ..............
Probability that Mandate is Binding .........................................................
Since Congress enacted the Energy
Policy Act in 2005, biofuel production
has consistently been higher than the
RFS mandated levels, which is an
indication that factors other than the
RFS requirements have been the
primary drivers of biofuel growth. In
addition, in its 2007 Annual Energy
Outlook (AEO), the Energy Information
Administration (EIA) projected that
even without the recent renewable fuels
requirement in EISA, ethanol use would
increase to 12 billion gallons in 2010.
This dramatic increase in ethanol use
was estimated to occur despite
assuming crude oil prices in the $50 to
$60 dollar per barrel range. Assuming
other factors remain constant, the higher
oil prices that we are experiencing now
would provide an even greater incentive
to produce and use additional ethanol
from corn.
ISU’s estimate for the maximum
ethanol capacity in 2008/2009 is 13.5
billion gallons, which is similar to
EPA’s estimate that over 13 billion
gallons of plant capacity was on-line or
under construction as of December 19,
2007 when EISA was passed.28 Once
28 These estimates are for the ethanol production
capacity and are higher than the volumes of ethanol
that are projected to be produced. See
Memorandum to Docket entitled, ‘‘Ethanol Capacity
Estimates.’’
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15:38 Aug 12, 2008
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TAMU mean
corn crop
$5.80
$4.75
¥$1.05
11.74
$2.76
$2.76
11.00
8.94
N/A
ethanol production capacity is built, we
expect ethanol producers will continue
making ethanol to the extent that they
can cover their operating costs.
Therefore, ethanol production in the
short term is highly dependent on the
built capacity of the ethanol industry
rather than the mandate.
Certain empirical data also supports
the projection that the RFS is unlikely
to be binding in the 2008/2009
timeframe. For example, the price of
tradable renewable identification
number (RIN) credits remains relatively
low: Below five cents per gallon as of
July 1, 2008. Refiners and importers
verify their compliance with the RFS by
collecting and expending RINs, which
are assigned to volumes of renewable
fuel by their producers. Refiners and
importers use RINs for an appropriate
volume of renewable fuel to
demonstrate compliance with their RFS
volume requirement. Parties that exceed
their RFS obligations for a compliance
period can trade excess RINs to other
parties that need them for compliance.
When the mandate is expected to be
binding, we would expect the demand
for RINs would increase and the supply
of excess RINs to decrease, leading to an
increase in price for RINs.
The RIN banking and rollover
provisions of the RFS also allow
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Iowa state
mean estimate
$6.70
$6.36
¥$0.34
12.14
$2.89
$2.76
10.78
10.05
42%
$6.00
$5.93
¥$0.07
11.70
$2.59
$2.57
11.05
10.90
24%
USDA
benchmark*
$5.50–$6.50
..........................
..........................
11.70
..........................
..........................
..........................
..........................
..........................
obligated parties to use or trade current
RINs in the next compliance period.
Therefore, we would expect the current
RIN price to reflect the market’s current
and near-term expectations about how
binding the RFS is likely to be. The
most recent available data shows that
the RIN price was below 3 cents per
gallon of ethanol on July 18, 2008. This
RIN price represents a very small share
of the price of a gallon of ethanol,
suggesting that refiners and blenders
expect the RFS is not likely to be
binding in 2008 or 2009. It is possible
that RIN prices have been depressed by
market uncertainty generated by Texas’
waiver request. However, the record
high RIN price before the Texas waiver
request was only approximately 6.5
cents per gallon. Unlike the previous
discussion in this section which
involved different agricultural sector
models that seek to evaluate the impacts
of the RFS, the RIN price is the result
of actual market outcomes, as opposed
to a modeled result. EPA believes the
RIN price information is one additional
way to evaluate the likelihood of an
impact from implementation of the RFS.
In this case, the RIN price information
corroborates the modeled impacts of the
RFS.
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2. Severity of Impact
(a) Corn Price Impacts
When evaluating the economic
impacts of waiving the mandate, our
analysis centered on four major areas:
U.S. corn prices, food prices, feed
prices, and fuel prices. While there may
be other areas of potential impact, we
focused on these areas because they are
expected to have the largest potential
economic impacts in the U.S. Given the
limited time available for this analysis,
we have not looked at the interaction of
these impacts in an integrated modeling
system. However, we believe that
looking at these indicators individually
provide a useful framework for
determining the potential severity of the
impact of the RFS mandate.
As described in the previous section,
we believe that implementation of the
RFS would not have a significant impact
on expected ethanol production in
2008/2009, with the most likely result
being no impact on ethanol production.
We have analyzed the impacts of
waiving the mandate under a wide
variety of scenarios, ranging from worst
case scenarios to the more likely
situations. Based on the ISU modeling
results, the average expected impact of
waiving the mandate over all the
potential outcomes, both those binding
and those non-binding, would be a
decrease in the price of corn by $0.07/
bushel. In the limited subset of potential
outcomes in which the mandate is
binding (24% of the results), waiving
the mandate would result in an average
expected decrease in the price of corn
of $0.30/bushel.
However small the probability, we
also recognize it is possible that all the
market outcomes could converge to
result in a worst case scenario,
therefore, we also provide this example
to help bracket the range of potential
outcomes. The ‘‘Worst Case’’ example
demonstrates the largest potential
change in corn price predicted by the
ISU model as a result of the waiver,
which is a decrease in corn prices of
$1.38/bushel. Table 2 presents the three
ISU scenarios.
TABLE 2—RANGE OF ESTIMATED CORN PRICES AND PRODUCTION LEVELS
Iowa state
mean estimate
Mean Corn Prices with Mandate ($/bushel) ......................................................................
Mean Corn Prices with Waiver ($/bushel) .........................................................................
Change in Corn Prices with Waiver ($/bushel) .................................................................
Mean Corn Production (Billion bushels) ............................................................................
Percentage of Times Mandate is Binding .........................................................................
(b) Food Price Impacts
In consultation with USDA, EPA
estimated how the changes in corn
prices influence U.S. food prices. The
results of the modeled corn price
impacts discussed above appear to be
quite modest for both the mean estimate
and the subset of scenarios in which the
mandate is binding. A $0.07/bushel
decrease in corn prices would result in
a 0.07% decrease in Food CPI 29 and a
0.03% decrease in All Item CPI.30 A
$0.30/bushel decrease in corn prices
would result in a 0.28% change in Food
CPI and a 0.04% change in All Item CPI.
Iowa state when
mandate binds
$6.00
$5.93
¥$0.07
11.70
24%
For the average household, a $0.07/
bushel decrease in corn prices would
result in a reduction of household
expenditures on food equal to $4.01 in
2008/2009, while a $0.30/bushel
decrease in corn prices would result in
a savings of $17.13. In the scenario with
the largest change in corn price, a $1.38/
bushel decrease in corn prices would
decrease the Food CPI by 1.29% and All
Item CPI by 0.19%. The average
household would in turn save $78.57 in
2008/2009 on food expenditures.
Since people in the lowest income
groups are more sensitive to changes in
food prices, we also analyzed the impact
$6.40
$6.10
¥$0.30
11.22
100%
Iowa state
‘‘worst case’’
example
$6.85
$5.47
¥$1.38
10.57
N/A
of changes in food expenditures as a
percentage of total consumer
expenditures and as a percentage of
income. The changes in food
expenditures are relatively small
compared to total consumer
expenditures for both average and low
income households.31 When comparing
the changes in food expenditures
relative to income, the impact on low
income households is larger than the
impact on average households.
Additional details on the methodology
used to calculate the CPI and household
expenditures are included in the
docket.32
TABLE 3—IMPACTS ON FOOD PRICES, CPI INDICATORS, AND HOUSEHOLD EXPENDITURES
Iowa state
mean estimate
Iowa state
mandate binds
$/bushel ........
percent ..........
percent ..........
$ ....................
¥$0.07
¥0.07%
¥0.01%
¥$4.01
¥$0.30
¥0.28%
¥0.04%
¥$17.13
¥$1.38
¥1.29%
¥0.19%
¥$78.57
$ ....................
¥$2.09
¥$8.95
¥$41.05
percent ..........
¥0.01%
¥0.04%
¥0.16%
Units
ebenthall on PRODPC60 with NOTICES
Change in Corn Price with Waiver .............................................................
Change in Food CPI with Waiver ..............................................................
Change in All Item CPI with Waiver ...........................................................
Change in Annual Food Expenditures for Average Households with
Waiver.
Change in Annual Food Expenditures for Lowest Quintile Households
with Waiver.
Change in Food Expenditures as a Percentage of Consumer Expenditures for Average Households with Waiver.
29 The Food CPI as measured by the Bureau of
Labor Statistics (BLS) consists of two components—
the ‘‘CPI for food at home’’ and the ‘‘CPI for food
away from home’’ with the ‘‘CPI for food away from
home’’ having a weight of 0.45 and the ‘‘CPI for
food at home’’ having a weight of 0.55.
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30 The Food CPI has a weight of 0.14 in the All
Item CPI. This implies that for every 1 percent
increase in the Food CPI the All Item CPI would
increase by 0.14 percent.
31 The lowest quintile (20%) of households, as
described in the Bureau of Labor Statistics’ 2006
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Iowa state
worse case
Consumer Expenditure Survey, has an average
income after taxes of $9,969. The average annual
household income after taxes for all households is
$58,101.
32 See Memorandum to Docket entitled, ‘‘USDA
Food CPI and Feed Cost Methodology’’.
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TABLE 3—IMPACTS ON FOOD PRICES, CPI INDICATORS, AND HOUSEHOLD EXPENDITURES—Continued
Iowa state
mean estimate
Iowa state
mandate binds
percent ..........
¥0.01%
¥0.44%
¥0.20%
percent ..........
¥0.01%
¥0.03%
¥0.14%
percent ..........
¥0.02%
¥0.09%
¥0.41%
Units
Change in Food Expenditures as a Percentage of Consumer Expenditures for Lowest Quintile with Waiver.
Change in Food Expenditures as a Percentage of Income for Average
Households with Waiver.
Change in Food Expenditures as a Percentage of Income for Lowest
Quintile with Waiver.
(c) Feed Price Impacts
Using WASDE projections (which
assume the mandate is in place) for feed
costs in 2008/2009, we estimated that
U.S. feed prices are projected to be
$233.13/ton, using a weighted average
use of corn, sorghum, barley, oats, and
soybean meal. In estimating the impact
of a change in corn prices on feed costs,
we used a simplifying assumption that
the percentage change in corn prices is
applied to all components of the feed
grains components used in this analysis.
Since the price of other feed grains tend
to track the price of corn, we believe
this simplifying assumption is a realistic
estimate of how feed grains will track
each other with changes in corn prices.
We estimated the potential impact of
Iowa state
worse case
granting the waiver on feed costs for the
three change in corn price scenarios
described in the previous sections: The
ISU mean estimate of a $0.07/bushel
decrease in corn price, the subset of ISU
scenarios in which the mandate is
binding ($0.30/bushel decrease in corn
price), and the ISU worst case scenario
($1.38/bushel decrease in corn prices).33
TABLE 4—U.S. FEED PRICES
2005/06
Feed Cost *:
Cost ($/ton) without waiver ...............................................................................................
Decrease in Feed Costs, $/ton ($0.07/bushel corn price change scenario) ...................
Decrease in Feed Costs, $/ton ($0.30/bushel corn price change scenario) ...................
Decrease in Feed Costs, $/ton ($1.38/bushel corn price change scenario) ...................
2006/07
2007/08
$87.75
..................
..................
..................
$125.72
..................
..................
..................
$152.71
..................
..................
..................
2008/09
$233.13
¥2.72
¥10.56
¥46.97
Source: July 11, 2008 WASDE.
* Feed is equal to the weighted average sum of feed use of corn, sorghum, barley, and oats plus domestic use of soybean meal.
Based on USDA’s estimates for U.S.
livestock feed costs and returns, we
estimated the impact of a percentage
change in feed costs per unit for poultry,
pigs, fed cattle, cow-calfs, and milk
production. Details on the methodology
used to calculate feed impacts are
included in the docket.34 Using USDA’s
production and slaughter estimates, we
aggregated the potential feed cost
impacts of a waiver for the U.S. and
Texas.35 In dollar terms, the single
largest sector of the livestock industry
that benefits from the waiver is the fed
cattle industry. As Texas points out in
its comments, Texas has the largest
cattle industry in the U.S., and accounts
for approximately 25% of the U.S. herd.
A $0.07/bushel change in corn prices
would decrease total livestock feed costs
in Texas by $53 million (1.2% change).
A $0.30/bushel change in corn prices
would decrease total livestock feed costs
in Texas by $207 million (4.7% change),
while a change of $1.38/bushel would
decrease total feed costs in Texas by $19
million (20% change). Compared to
Texas’s $1 trillion dollar economy, these
impacts appear to be relatively small.
Even looking at the cattle and poultry
industry in Texas specifically, we
believe $53–$207 million is a small
impact compared to the over $10 billion
livestock industry.36
TABLE 5—TOTAL FEED COSTS AND ESTIMATED DECREASE WITH RFS WAIVER FOR CATTLE, POULTRY, PIGS, AND DAIRY
PRODUCTION
ebenthall on PRODPC60 with NOTICES
US
Cow Slaughter:
Feed cost without waiver, $ million ......................................................................................................................
Decrease in Feed Costs, $ million ($0.07/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($0.30/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($1.38/bushel corn price change scenario) ..................................................
Fed Cattle:
Feed cost without waiver, $ million ......................................................................................................................
Decrease in Feed Costs, $ million ($0.07/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($0.30/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($1.38/bushel corn price change scenario) ..................................................
Poultry:
33 In the subset of scenarios in which the mandate
is binding, corn prices are generally higher than for
the mean estimate. We would therefore expect
average feed costs to be higher than the WASDE
estimates.
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34 See Memorandum to Docket entitled, ‘‘USDA
Food CPI and Feed Cost Methodology’’.
35 These estimates assume there are no changes in
quantities (e.g., early slaughter) based on higher
feed costs.
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Texas
$842.8
9.8
38.2
169.8
$40.1
0.5
1.8
8.1
9,923.4
115.8
449.7
1,999.2
2,491.1
29.1
112.9
501.9
36 The $919 million change is from a worst case
scenario that EPA considers highly unlikely.
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TABLE 5—TOTAL FEED COSTS AND ESTIMATED DECREASE WITH RFS WAIVER FOR CATTLE, POULTRY, PIGS, AND DAIRY
PRODUCTION—Continued
US
Feed cost without waiver, $ million ......................................................................................................................
Decrease in Feed Costs, $ million ($0.07/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($0.30/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($1.38/bushel corn price change scenario) ..................................................
Pork:
Feed cost without waiver, $ million ......................................................................................................................
Decrease in Feed Costs, $ million ($0.07/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($0.30/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($1.38/bushel corn price change scenario) ..................................................
Dairy:
Feed cost without waiver, $ million ......................................................................................................................
Decrease in Feed Costs, $ million ($0.07/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($0.30/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($1.38/bushel corn price change scenario) ..................................................
Total Feed Costs (cattle, poultry, pigs, dairy):
Without waiver, $ million ......................................................................................................................................
Decrease in Feed Costs, $ million ($0.07/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($0.30/bushel corn price change scenario) ..................................................
Decrease in Feed Costs, $ million ($1.38/bushel corn price change scenario) ..................................................
Texas
7,571.6
88.3
343.1
1,525.4
586.7
6.8
26.6
118.2
10,874.8
126.9
492.8
2,190.8
134.1
1.6
6.1
27.0
37,028.8
432.0
1,677.9
7,459.8
1,307.2
15.3
59.2
263.3
66,241.4
772.8
3,001.6
13,345.0
4,559.2
53.2
206.6
918.5
To produce a pound of poultry live weight, about 1.5 pounds of feed required.
ebenthall on PRODPC60 with NOTICES
The State of Texas did not attempt to
quantify the impact of waiving the RFS
on the livestock industry, although they
did submit reports by the Agricultural
and Food Policy Center (AFPC), the
Texas Department of Agriculture, and
McVean Trading & Investments (a
company that specializes in monitoring
the health of the livestock industry),
which conclude that the livestock
industries, including poultry, are
experiencing financial losses due to
increases in the cost of production due
to higher corn prices.
While most of these impacts are
outside the scope of our analysis since
they do not focus on the impacts
directly related to the RFS, we have
attempted to compare our methodology
with the methodology used by Texas.
The Texas Department of Agriculture
report cites the March study by Elam in
which he estimates that the increase in
biofuels will result in an increase in cost
to the Texas livestock and poultry
industries of approximately $2.4 billion
in calendar year 2008. This impact was
based on an estimated increase of $2.04/
bushel in corn prices due to the increase
in biofuels policies as a whole.
Although the increase in corn price
cited by Elam is higher than the
modeling results by ISU and TAMU
discussed in the previous section, the
methodology for estimating the impact
on feed costs employed by Elam appears
to be generally consistent with our
analysis. When the cost increases for
cattle, poultry, pork, and dairy
production are separated out, Elam
estimates a $1.3 billion dollar increase
in feed costs in 2008. If Elam had used
a change in corn price that was
approximately two thirds of his $2.04/
bushel estimate ($1.36/bushel), his
methodology would have estimated an
increase in feed costs in Texas of
approximately $867 million dollars.
This figure is similar to our estimate of
a $919 million increase in feed costs in
Texas, which corresponds to our worst
case scenario of a $1.38/bushel increase
in corn prices.
As described in the previous sections,
the corn price increase attributable to
the RFS is likely to be much smaller.
Texas’s own ‘‘95% of mean corn crop’’
scenario predicts a change of only
$0.73/bushel as a result of the RFS
waiver, which would make the impact
on the livestock industry even less than
the $918 million calculated here.
37 In the subset of scenarios in which the mandate
is binding, when the mandate is in place it
artificially increases demand for ethanol (and
artificially decreases the demand for gasoline).
Therefore, removing the mandate in those scenarios
allows for lower demand of ethanol which results
in an increase in demand for gasoline Over the one
year period for which this model addresses fuel
price impacts, the model assumes gasoline
production is relatively inelastic and import
supplies are fixed. As a result, the increase in
gasoline demand is associated with a slight increase
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(d) Fuel Price Impacts
The ISU model also predicts the
change in U.S. ethanol, gasoline, and
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blended fuel prices based on changes in
ethanol production volumes. The ISU
model assumes that both the demand
and supply of gasoline are relatively
inelastic. Therefore, reducing the
ethanol production levels will increase
gasoline demand and increase gasoline
prices.37 Although the decrease in
ethanol demand is associated with a
decrease in ethanol prices, the total
blended fuel price is dominated by the
change in gasoline price since it is a
much larger portion of the fuel pool.
The ISU model predicts that the most
likely outcome is that waiving the RFS
mandate would have no impact on fuel
prices. The ISU modeling predicts that
the average impact across all modeled
scenarios is that waiving the RFS
mandate would increase blended fuel
prices by 3/10 of one cent. When
looking at the smaller subset of
instances in which the mandate is
binding, the average impact of granting
the waiver would be to increase blended
fuel prices by $0.01/gallon. Even in the
case where ethanol production volumes
change the most, the impact on blended
fuel prices would be no more than an
increase of $0.03/gallon.
in blended fuel prices. In a longer time frame, if the
supply of gasoline were more elastic, it is possible
that we could get a different impact on blended fuel
prices as a result of the waiver.
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TABLE 6—RANGE OF ESTIMATED ETHANOL AND BLENDED FUEL PRICES
Iowa state
mean estimate
Mean Ethanol Price with Mandate ($/gal) ...................................................................
Mean Ethanol Price with Waiver ($/gal) ......................................................................
Mean Domestic Ethanol Demand w/Mandate (Billion Gallons) ..................................
Mean Domestic Ethanol Production w/Waiver (Billion Gallons) .................................
Blended Fuel Price with Mandate ($/gal) ....................................................................
Blended Fuel Price with Waiver ($/gal) .......................................................................
Change in Blended Fuel Price ($/gal) .........................................................................
Based on these small predicted
changes in blended fuel prices, the
overall impacts on the economy are also
expected to be modest, and in the
opposite direction from any impact on
the livestock industry and food prices in
general.
Iowa state when
mandate binds
$2.59
$2.57
11.05
10.90
$3.021
$3.024
$0.003
Our analysis shows that a $0.003/
gallon increase in blended fuel price for
the Iowa State mean scenario would be
expected to change the Energy CPI by
0.049%. For the subset of scenarios in
which the mandate is binding, a $0.01/
gallon increase in blended fuel price
Iowa state
‘‘worst case’’
example
$2.52
$2.43
10.00
9.40
$2.692
$2.704
$0.012
$2.62
$2.22
10.00
7.27
$1.987
$2.017
$0.030
would be expected to change Energy CPI
by 0.219%. A $0.03/gallon increase in
blended fuel price in the worst case
scenario would be expected to change
Energy CPI by 0.739%. Details on the
methodology for determining these
impacts are included in the docket.38
TABLE 7—IMPACTS ON ENERGY CPI AND GASOLINE EXPENDITURES FOR AVERAGE AND LOW INCOME HOUSEHOLDS
ebenthall on PRODPC60 with NOTICES
Change in Blended Fuel Price with Waiver ...............................................
Change in Energy CPI with Waiver ...........................................................
Change in Annual Expenditures on Gasoline for Average Household
with Vehicles.
Change in Annual Expenditures on Gasoline For Lowest Quintile Households with Vehicles.
Change in Gasoline Expenditures as a Percentage of Consumer Expenditures for Average Household with Vehicles.
Change in Gasoline Expenditures as a Percentage of Consumer Expenditures for Lowest Quintile of Vehicle Owners.
Change in Gasoline Expenditures as a Percentage of Income After
Taxes for Average Household with Vehicles.
Change in Gasoline Expenditures as a Percentage of Income After
Taxes for Lowest Quintile with Vehicles.
For the average household that owns
a vehicle, the $0.003/gallon change in
fuel prices would result in a $3.43
increase in annual gasoline
expenditures in 2008/2009. A $0.01
gallon increase in fuel prices translates
to a $13.72 increase in household
expenditures on gasoline. Finally, a
$0.03/gallon increase in fuel prices
translates to a $34.29 increase in
household expenditures on gasoline.
When analyzing the impact of these
changes on the lowest income groups,
the absolute expenditures on gasoline
are lower than for the average
household, due to the fact that this
segment of the population tends to drive
fewer miles on average. Since people in
the lowest income groups are least able
to absorb changes in fuel prices, we also
analyzed these changes in expenditures
as a percentage of consumer
expenditures. Our analysis shows a
38 See docket for the memorandum from U.S. DOE
to U.S. EPA.
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Jkt 214001
Iowa state
mandate binds
$/gallon .........
percent ..........
$ ....................
$0.003
0.49%
$3.43
$0.012
0.219%
$13.72
$0.030
0.739%
$34.29
$ ....................
$2.02
$8.07
$20.18
percent ..........
0.007%
0.028%
0.071%
percent ..........
0.010%
0.040%
0.099%
percent ..........
0.006%
0.024%
0.059%
percent ..........
0.020%
0.081%
0.202%
slightly larger impact on lower income
households as a percentage of consumer
expenditures. When calculating the
change in gasoline expenditures as a
percentage of income, the impact on low
income households is noticeably larger
than the corresponding impact on the
average household, although the
magnitude of the change is still small
(less than a 1% change for all scenarios).
Some commenters argued to the
contrary, claiming that waiving the RFS
would significantly impact the price of
fuel. These commenters rely on papers
by Urbanchuk 39 and Verleger and
Chodorow 40, which both estimate large
changes in gasoline prices as a result of
waiving the mandate, although the
estimated impacts are opposite in sign.
The fundamental assumption in both
the Urbanchuk and Verleger and
Chodorow papers is that granting the
waiver would lead to a relatively large
39 EPA–HQ–OAR–2008–0380–0479.
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Iowa state
‘‘worst case’’
example
Iowa state
mean estimate
Units
Sfmt 4703
change in U.S. ethanol production. We
disagree. As described in the previous
sections, our analysis suggests that other
market factors such as high crude oil
prices are driving the current increase in
ethanol production, not the RFS
mandate.
Urbanchuk estimates the impact of
removing 4.5 billion gallons of ethanol
from the fuel pool over a short time
frame, which would have to be made up
by approximately 3.1 billion gallons of
gasoline on an energy equivalent basis.
Assuming the demand and supply for
gasoline is largely inelastic, Urbanchuk
estimates this increase in gasoline
demand would lead to an increase in
gasoline price of about $1.14/gallon.
While we agree in principle that
increasing the demand for gasoline by
approximately three billion gallons
would significantly increase short term
gasoline prices, EPA does not believe
40 EPA–HQ–OAR–2008–0380–0526.
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granting the waiver would result in an
increase in gasoline demand by over
three billion gallons. Furthermore,
Urbanchuk estimates the percent change
in price relative to a percent change in
the quantity of U.S. gasoline supply. We
believe this assumption overstates the
price impact, because it would be more
appropriate to estimate the price change
relative to a percent change in the world
gasoline supply.
Verleger and Chodorow use a very
different analytical approach to predict
that an increase in U.S. gasoline
production would lead to lower U.S.
gasoline prices. Their paper assumes
that an RFS waiver would reduce
demand for ethanol by between 4.5 and
5.55 billion gallons in 2008 and 2009
respectively, and that the increased
demand for motor fuel would be made
up entirely by gasoline on an energy
equivalent basis. This would increase
crude oil demand so that gasoline
would replace ethanol. The increased
crude refining would produce more
diesel fuel, which would reduce diesel
fuel prices by approximately $0.70/
gallon (15 percent). In turn, Verleger
and Chodorow assert that decreased
diesel prices would cause prices for
light sweet crude to decline by
approximately $16/barrel (12 percent),
and that the decrease in crude prices
would lower finished motor gasoline
prices by approximately $0.15/gallon (4
percent).
This analysis depends on several
assumptions that we believe are likely
to be incorrect (or at least overstate the
potential impact of granting the waiver).
Verleger and Chodorow assume that
ethanol is priced in the market based on
its energy content in comparison to
gasoline; therefore on an energy
equivalent basis ethanol is currently
more expensive than gasoline. In reality,
ethanol has historically been priced
based on volume displacement of
gasoline and will be until it has to be
sold as E85 in large quantities and E10
has saturated the U.S. gasoline market.
At that time, any additional ethanol will
be sold as an E85 blend. Today, we are
not at the point of E10 saturation,
therefore, on a volumetric basis, ethanol
is still cheaper than gasoline. We
believe that the market will continue to
demand a higher quantity of ethanol
than the mandate under most future
market conditions. Thus, even if the
Verleger and Chodorow paper were
directionally correct, the magnitude of
the impact would be significantly
overstated.
The second major assumption in the
Verleger and Chodorow paper that we
believe is not accurate is the proposition
that current high crude oil prices are
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caused by high diesel fuel prices. While
there appears to be evidence that tight
distillate markets are contributing to
higher world crude oil demand and
crude oil prices,41 crude oil prices are
a function of supply and demand for
crude oil and specifically the demand of
all the products made from it, not just
diesel fuel. Without this questionable
assumption by Verleger and Chodorow,
their projected increase in demand for
crude oil would likely increase crude oil
prices and prices for both gasoline and
diesel fuel, thus reversing the
conclusion of their study that increasing
diesel production would decrease crude
oil prices.
Empirically, diesel prices have risen
along with diesel consumption over the
last few years. Verleger and Chodorow
attempt to quantify this effect through
the use of regression analysis over a
limited time period for one market.
Such a regression cannot determine the
causation, and its use may have
numerous other technical problems. We
therefore believe this relationship is
unsupported.
3. Summary of Technical Analysis
For the 2008/2009 corn crop
marketing year, our analysis shows that
the likelihood that the RFS will
determine ethanol demand in the U.S. is
low, and that the most likely result is
that the RFS would have no impact on
ethanol demand. Furthermore, our
analysis shows that potential changes in
U.S. corn and fuel prices resulting from
a waiver would have at most a limited
impact on the food, feed, and fuel
markets.
VI. Other Issues
EPA received comment on several
areas of concern, in addition to the
economic impact of the RFS mandate.
Comments were received on the general
impacts of biofuels, the environmental
impacts of RFS, the effect that granting
or denying the waiver request would
have on commodity markets, and the
impact of granting a waiver on the
future of ethanol production in the U.S.
Although this section summarizes and
provides general responses to the
comments concerning these issues, EPA
notes that several of the issues are either
not relevant to EPA’s consideration of
the current waiver request or do not
provide a full record by which to
analyze the issue.
41 https://www.iea.org/w/bookshop/
add.aspx?id=402.
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1. General Impacts of Recent Increase in
Biofuels
Many commenters focused on the
recent increase in corn prices from
approximately $2.00 in 2005 to almost
$8.00 this spring. Most of the
commenters stated that biofuels have
contributed to the recent increase in
U.S. corn prices, although estimates of
the magnitude of this impact varied.
Commenters referencing Dr. Joe
Glauber, Chief Economist at the USDA,
in testimony presented before the
Committee on Energy and Natural
Resources in the U.S. Senate, noted
estimates that increased ethanol
production in the U.S. has raised U.S.
corn prices by approximately $0.24/
bushel in the 2006/2007 time frame (9
percent) and approximately $0.65/
bushel in the 2007/2008 (18 percent)
timeframe. Alternatively, in a report
prepared for Kraft Foods Global Inc., Dr.
Keith Collins suggests that the increase
in U.S. biofuels since 2006/7 has
increased U.S. corn prices by a larger
amount, with a range of 29% to 60%
(EPA–HQ–OAR–2008–0380–0514.2).
While EPA recognizes that there has
been a large increase in corn prices that
has coincided with the recent expansion
of biofuels, the individual contribution
of the RFS mandate has been much
smaller. A number of factors have
contributed to the recent increase in
corn prices, such as foreign demand for
coarse grains, sustained drought in
major international crop producing
regions, and historically high energy
prices.
In a similar vein, comments and
supporting analyses generally agreed
that the recent increase in U.S. biofuels
production has increased food prices in
the U.S., although the magnitude of this
impact varied throughout the
comments. Collins suggested that if
biofuels accounted for 60% of the
increase in corn and soybean prices
between the 2006/2007 marketing year
and expected 2008/2009 levels, food
ingredient costs would be
approximately $20.5 billion higher. In
turn, ingredient costs will be passed on
in higher meat and food prices to U.S.
consumers. In total, Collins predicts that
increased biofuels will increase U.S.
food prices by approximately 1.8%. The
1.8% increase is a 23–25% increase in
the normal rate of food price inflation in
a two to three year period. Alternatively,
Purdue University Extension suggests
that for the year 2007, the increased use
of biofuels have increase food costs by
approximately $15 billion compared to
the 2005 crop year.42 At the low end of
42 EPA–HQ–OAR–2008–0380–0574.
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the spectrum, several commenters cited
a report prepared by Dr. Richard Perrin
of University of Nebraska-Lincoln, that
estimated ethanol is responsible for no
more than 15–20 percent of overall grain
price increases over the last two years
and that increases from ethanol have
had a negligible impact on U.S.
consumer prices.
EPA also received many comments
discussing how the recent increase in
corn price has had a negative impact on
the livestock industry. The State of
Texas provides several reports that
conclude that the livestock industries,
including poultry, are experiencing
financial losses due to increases in the
cost of production due to higher corn
prices. Several other commenters
provide detailed descriptions of the
financial impact on cattle, poultry or
broiler companies from rising feed costs.
EPA is aware of the overall impact
that biofuels have had in recent years on
the food and feed markets, and we are
also cognizant of the current
macroeconomic conditions in the U.S.
that have exacerbated some of these
impacts. While we generally agree that
the issues raised by commenters are
important considerations, we think that
some commenters may have overstated
the magnitude of the impacts. In
addition, as discussed previously, the
issue before EPA is a narrower one—
what impact if any the RFS mandate
itself would have over the time period
at issue, not the impact of the overall
production and use of biofuels in the
U.S.
2. Environmental Concerns
A number of commenters expressed
concerns that the RFS mandate severely
harms the environment. As discussed
below, EPA believes that the RFS
mandate is not expected to lead to an
increased use of ethanol during the time
period at issue. In addition, EPA has
considered and evaluated the
environmental impact of an increased
use of renewable fuels in the RFS1
rulemaking.43 In addition, EISA also
made several important changes to the
RFS program, many of which directly
address some of the environmental
concerns raised below. EPA is preparing
a proposed rulemaking to update the
RFS program to reflect the EISA
changes, and in this rulemaking EPA
will further evaluate the environmental
concerns raised below.
Specifically, commenters outlined
four major environmental harms related
to the expansion of the RFS mandate.
First, a few commenters expressed
concern about increased emissions of
43 72
FR 23899 (May 1, 2007).
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volatile organic compounds (VOCs) and
oxides of nitrogen (NOX ) associated
with increased use of ethanol. They
claimed that when an area that currently
blends little or no ethanol into gasoline
starts to use such blends, significant
increases in the amounts of VOCs and
NOX occurs.
The agency has evaluated the impact
of increased use of ethanol a number of
times (See 66 Federal Register 37256–
37161). Most recently, we conducted a
thorough analysis of the impact of
increased ethanol usage in the final rule
for implementation of the Renewable
Fuel Standard Program, for levels up to
approximately 10 billion gallons of
renewable fuel use a year.44 We have
shown through the use of the ozone
Response Surface Model that changes in
ambient ozone levels are small when
moving to these volumes of ethanolblended gasoline and those slight
increases would be smaller when
factoring carbon monoxide reductions
from increased ethanol use.45
Second, some commenters stated that
ethanol’s lifecycle greenhouse gases
(GHGs) substantially increase once
greenhouse gases released from indirect
land use are considered in ethanol’s
GHG lifecycle. These comments rely on
evidence from Searchinger, et al. which
utilized the GREET and the Food and
Agricultural Policy Research Institute
(FAPRI) models to show a manifold
increase in lifecycle GHGs as marginal
cropland, forests, and native grasslands
are converted to agricultural lands as a
result of ethanol production.46 This is
an important issue. EPA has analyzed
the greenhouse impacts of various
renewable fuels, most recently in the
RFS1 rulemaking.47 EPA will further
address this issue with an updated
analysis in its upcoming proposed
rulemaking to implement the RFS
44 See
72 FR 23900, 23969–978.
our RFS ozone modeling, we found that the
CO decreases would likely offset the potential
ozone air-quality impacts of a two percentage point
adjustment to VOCs. We found that reduced CO
emissions ranged from 0.9% to 2.5% depending on
the volume of renewable fuels increased.
Concerning VOCs and NOX , we expected to see
increases of 4 to 5 percent and 5 to 7 percent
respectively in some areas. Overall, we found that
the average impact on summer ambient ozone levels
for all areas is a 0.057 ppb increase or about 0.06
percent of the ozone NAAQS (80.0 ppb).
Additionally, in areas with significant increases
(greater than 50 percent) in ethanol use between
now and 2015, the increase on summer ambient
ozone levels is 0.153 ppb (72 FR 23977).
46 Searchinger, Timothy; Heimlich, Ralph;
Houghton, R. A.; Dong, Fengxia; Elobeid, Amani;
Fabiosa, Jacinto; Tokgaz, Simla; Hayes, Dermot; et
al., ‘‘Use of U.S. Croplands for Biofuels Increases
Greenhouse Gases Through Emissions from LandUse Change’’, Science, No. 319 (Feb 29, 2008):
1238–1240.
47 See 72 FR 23978–984.
45 In
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changes called for by EISA 2007. These
RFS changes include GHG thresholds
for certain fuels, based on lifecycle
emissions of GHG gases, including
significant indirect emissions resulting
from land use changes.
Third, others argue that current
agricultural production will put around
100 million tons of soil and 300,000
tons of nitrogen-based fertilizers in
Midwestern waters. The soil erosion
and fertilizer runoff are major
contributors to the Gulf of Mexico’s
‘‘Dead Zone.’’ These commenters argue
that the RFS mandate, at a minimum,
prevents the implementation of
solutions to issues in the Gulf and
would ultimately exacerbate the
situation as farmers grow more crops for
energy production in the future. We
acknowledge that impacts to water
quality may result from increased
biofuel crop production, and we intend
to provide information about this issue
as part of the upcoming RFS
rulemaking.
Fourth, commenters expressed
concern over the effect on natural
habitats and biodiversity from clearing
critical habitats like forests, wetlands,
and grasslands for biofuels production.
They argue that these habitats are
necessary to preserve biodiversity, and
the RFS provides an incentive to use
these lands and other lands in
conservation programs for use to
produce energy crops.
Other commenters noted the
environmental benefits from blending
ethanol into gasoline. Most notably,
commenters point to the reductions in
carbon monoxide emissions from using
ethanol blends, decreased emissions of
greenhouse gases, and the use of ethanol
as an oxygenate that helps to break
down harmful chemicals before being
released into the atmosphere.
For these comments, as with the prior
comments, EPA notes that the Agency
will be evaluating these and other
environmental issues in the upcoming
proposed rulemaking to implement the
changes to the RFS program required by
EISA. EPA is conducting a significant
amount of analyses for this upcoming
rulemaking to implement EISA, and we
will further investigate both the positive
and negative environmental impacts
and costs of increased renewable fuel
production and consumption. In
addition, EISA changes the definitions
of renewable fuel, and precludes use of
renewable fuel in the RFS program if it
was produced from feedstocks from
certain lands. EPA will address these
changes in the upcoming RFS2
rulemaking.
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4. Future of Renewable Fuels
3. Potential Impacts on Commodities
Markets
We received comments that supported
and opposed granting the waiver request
on the grounds that the RFS mandate
contributes to investment speculation in
the commodities markets. The State of
Texas argues that the RFS mandate is
causing and will continue to cause
unnecessary harm to the economy by
facilitating speculative investment in
corn futures. EPA recognizes that the
RFS requirements may be influencing
the U.S. corn futures market in years
beyond the 2008/2009 time period,
which may in turn influence prices
today. However, research to date has not
been able to link future corn prices from
the larger RFS required volumes to
current 2008/2009 corn prices.48 We
intend to continue to review and
monitor this issue as appropriate.
Conversely, one commenter argued
that granting the waiver would
introduce a level of uncertainty in the
biofuels markets that could adversely
impact investment decisions, research
and development initiatives for
advanced biofuels, and/or how future
RFS requirements are enforced.
Furthermore, other commenters point
out that expanded ethanol production
increases available livestock feeds and
may lead to corn price stabilization
through the use of distiller’s grains.
Some economists note that
speculation provides a vital role in the
price discovery process with a chance of
‘‘overshooting’’ the equilibrium because
the balance between supply and
demand is never precisely known. The
prices are corrected as new information
becomes available. This appears to be
the case with corn futures as prices have
fallen as the recent flooding in the
Midwest has shown to have marginal
national impact, as discussed above.
Many commenters noted corn futures
prices surpassing $8.00/bushel peaks
during the uncertainty of the effect of
the flood, compared with the current
$5.25/bushel futures price.49
As discussed above, the RFS mandate
is not expected to cause any increase in
the use of ethanol during the time
period at issue, and therefore is not
expected to have any impact on corn
prices.
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48 Abbot,
Hurt, and Tyner, July 2008, What’s
Driving Food Prices? https://
www.farmfoundation.org/news/articlefiles/404–
FINAL%20WDFP%20REPORT%207–21–08.pdf;
https://www.cftc.gov/stellent/groups/public/
@newsroom/documents/file/
itfinterimreportoncrudeoil0708.pdf
49 ‘‘Electronic Corn Quotes.’’ 08 July 2008.
Chicago Board of Trading. 05 Aug 2008
www.cbot.com/.
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A number of commenters raised
concerns over the impact that granting
the waiver would have on the future of
ethanol production. Many commenters,
especially those related to the ethanol
industry, stated that granting the waiver
would send a signal to ethanol and
other biofuels producers that
investments in production and
distribution of renewable fuels were
uncertain. Additionally, these
commenters note that granting a waiver
this soon after raising the standard
raises questions concerning future
investments in advanced biofuels
mandated by EISA beginning in 2009.
On the other hand, some commenters
raise questions about whether the
current production capacity of ethanol
would be able to meet the revised
standards and whether distribution
facilities would be able to accommodate
the increased amount of renewable fuels
required. These commenters argue that
granting the waiver request would allow
a smoother transition to biofuels in
terms of production capacity and
distribution by allowing more realistic
development of infrastructure to
support the renewable fuels industry.
Additionally, they argue that granting
the waiver request might create an
incentive to develop more advanced
biofuels more quickly and move away
from grain-based ethanol.
Many commenters point out that a
significant amount of production
capabilities are scheduled for
completion during 2009 with over 13
billion gallons of production capacity
scheduled to come online.
EPA will be considering these and
other issues in a comprehensive fashion
in the upcoming rulemaking to
implement the changes called for by
EISA. However they are not relevant to
the threshold issue in this waiver
proceeding—whether implementation of
the RFS mandate, during the time
period at issue, would severely harm the
economy. Given the basis for the
decision described below in Section VII,
the issues raised in this section VI are
more appropriately considered in the
upcoming rulemaking to implement the
changes called for by EISA.
VII. Decision
EPA is authorized to grant Texas’s
waiver request if EPA determines that
implementation of the RFS mandate
would severely harm the economy of a
State, region, or the United States. As
discussed in section IV, this calls for a
determination that implementation of
the mandate itself would severely harm
the economy; it is not enough to
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determine that implementation would
contribute to such harm. The required
determination has two basic parts. The
first criterion is that there must be a
generally high degree of confidence that
severe harm would occur from
implementation of the RFS. The second
criterion is a high threshold for the
nature and degree of harm that would
support issuance of a waiver, indicating
a point that is quite far along a
continuum of harm, though short of
extreme. EPA recognizes that Texas and
many parties, both those supporting the
waiver and those opposing the waiver,
have raised issues of great concern to
them and to others in the nation
concerning the role of the increased use
of biofuels. However the issue before the
Agency in this case is a much more
limited one, as described above. Based
on a thorough review of the record in
this case, and applying the evidence to
the statutory criteria, EPA finds that the
evidence does not support granting a
waiver.
First, regarding the degree of
confidence that implementation of the
mandate during the time period at issue
would harm the economy, EPA notes
that the overall weight of the evidence
indicates that implementation of the
mandate itself would have no
significant impact on the economy
during this time period, and the most
likely result is that implementation of
the mandate itself would have no effect
on the economy of a State, region, or the
United States. All parties agree that any
claimed economic harm would derive
from the increased use of ethanol, and
any associated increase in the price of
corn. However the weight of evidence
strongly indicates that waiving the
mandate would not be expected to
change the amount of ethanol that
would be used. The ISU modeling
projects that waiving the mandate
would have no impact at all on the use
of ethanol in 76% of the scenarios
modeled. The ISU results are also
generally supported by the modeling
performed by TAMU, which indicates
that under scenarios similar to the ISU
modeling, a waiver of the mandate
would have less than a 50% chance of
impacting the use of ethanol. Current
market conditions that foster ethanol
production and the low price currently
in the market for renewable fuel RINs
also supports the conclusion that
waiving the mandate would not be
expected to have a significant effect on
the use of ethanol. As discussed in
section V, the evidence submitted to
support the view that a waiver would
have a large effect on ethanol use is less
credible because of concerns about the
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validity of key assumptions in the
analyses and models. After considering
all of the evidence and weighing it
appropriately, EPA believes that
waiving the RFS mandate would not
significantly affect the use of ethanol
during the time period at issue, and the
most likely result is that
implementation would have no effect.
Therefore it is unlikely that
implementation of the mandate would
cause harm to the economy. There is
insufficient evidence before the agency
to support a finding that
implementation of the RFS would likely
or even probably cause harm to the
economy for that time period—and
certainly the evidence does not reach
the generally high degree of confidence
required for issuance of a waiver under
section 211(o)(7)(A).
With respect to the second criterion,
the Agency examined the evidence to
evaluate the potential impact of
implementation of the RFS mandate on
corn prices and the impacts of such corn
prices on various sectors of the economy
and the overall economy, both within
Texas and for the entire United States.
In the ISU modeling a range of scenarios
were modeled, with the model
projecting ethanol use, corn price and
fuel price. The modeling indicates that
for 76% of the scenarios there would be
no change in ethanol use or corn price
from a waiver of the mandate, with only
24% of the scenarios indicating a
change in ethanol use and a
corresponding change in corn price.
EPA determined that the average change
in corn price over all of the scenarios
was $0.07 per bushel of corn. The
average change in corn price over the
24% of scenarios where a waiver would
have an effect was $0.30 per bushel of
corn. As discussed in section V, a price
change in corn of this magnitude would
have only a limited impact on livestock
costs and food prices. It would also be
accompanied by a small change in fuel
costs. For the reasons discussed above,
EPA believes the weight of the evidence
supports the view that there is most
likely no impact on ethanol use or corn
prices from implementation of the RFS
mandate over the time period at issue,
and if an impact were to occur, it would
likely be on average $0.30 per bushel of
corn. EPA believes this range of price
increases for corn, even without
considering the accompanying impact
on fuel prices, would not support a
finding of severe harm to the economy,
whether considering the livestock
industry of Texas, the livestock industry
of the nation, the economy of Texas, or
the economy of the United States. In
this case, EPA does not need to
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determine exactly what nature or degree
of harm would amount to severe harm,
as the evidence in this case clearly does
not meet the criterion of a high
threshold for severe economic harm.
In conclusion, EPA finds that the
evidence in this case does not support
a determination that implementation of
the RFS mandate during the time period
at issue would severely harm the
economy of a State, a region, or the
United States.
VIII. Guidance on Future Requests for
Waivers
In considering waiver requests, EPA
takes seriously its responsibility to
evaluate whether circumstances
warranting a waiver have arisen, while
providing the necessary level of stability
for this program that Congress intended.
In order to meet these objectives, the
Agency is providing guidance on its
expectations for future waiver requests.
Section 211(o)(7)(A) of the Act
requires notice and comment before the
Administrator may grant a waiver of the
RFS volume requirements. For 2008,
only a state governor may request a
waiver, however beginning in 2009 ‘‘any
person subject to the requirements’’ of
the RFS may also request a waiver.
Thus, refiners and importers of gasoline,
as well as producers and importers of
renewable fuels such as ethanol and
biodiesel, may request a waiver.
The statute provides that EPA ‘‘may
waive [the RFS requirements] * * *
based on a determination by the
Administrator, after public notice and
opportunity for comment,’’ that certain
circumstances exist. It does not,
however, specify that notice and an
opportunity for comment are required
for EPA denial of a petition. While EPA
always has the discretion to proceed
through public notice and comment
prior to acting on a waiver request, we
believe that there could well be
circumstances where it is appropriate
for EPA to deny a petition without
notice and opportunity for comment.
For example, petitions that clearly do
not contain information and analysis of
a type and quality sufficient to support
a grant of a waiver may not justify
public consideration prior to issuance of
a denial by EPA. EPA is concerned that
time and resources of both the Agency
and stakeholders should not be
unnecessarily devoted to a public notice
and comment process if a clearly
meritless petition is filed, including a
petition that is not supported by an
appropriate level of information and
analysis. In such a case, EPA can make
an appropriate decision without public
input. In addition in those
circumstances a public notice and
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comment process would detract from
the time and resources of all
stakeholders, including the resources
that may be available to address
petitions that are adequately supported
by an appropriate level of information
and analysis. To assist future
petitioners, EPA offers the following
guidance on the types of information
and analysis that we expect would
accompany a waiver request. EPA notes
that this guidance is not a rule, and
therefore is not binding on the public or
EPA. Any final decision on the
sufficiency and merit of a petition will
be made upon review of a petition by
EPA in consultation with the Secretaries
of Agriculture and Energy.
By example, in section IV of this
decision EPA provides its interpretation
of the criteria for deciding a waiver
request based on a claim that
implementation of the RFS would
severely harm the economy of a State,
a region, or the United States. In section
V EPA explains how it weighs the body
of evidence on the issues that are
relevant for this waiver request. Based
on this, EPA expects that future
applicants for a waiver will provide
information and analyses that address
what is the impact of implementation of
the RFS, and what is the nature and
degree of harm associated with the
impact of the RFS. The information and
analyses discussed in section V, such as
appropriate modeling, provides
guidance on the kind of information and
analyses that EPA expects would be
provided by an applicant. EPA expects
that it will evaluate a waiver request by
weighing all of the evidence; hence no
one specific kind or form of evidence or
analyses is necessarily dispositive. At
the same time, EPA expects that
applicants would provide a
comprehensive and robust analytical
basis for any claim that the RFS itself is
causing harm, and the nature and degree
of that harm.
In the future, EPA will review a
request for a waiver and first determine
whether to proceed with public notice
and comment. EPA will not grant a
waiver without such notice and
comment, but in appropriate
circumstances EPA reserves the right to
deny a waiver request without going
through that process. Where an
applicant does not address the relevant
issues or does not provide adequate
evidence to support their claims, EPA
may decide to deny the request without
notice and comment.
In this case the initial submission by
the State of Texas provided little
analytical or evidentiary basis for their
request. EPA proceeded through a
notice and comment process as this was
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the first such request and EPA had
provided no prior guidance on these
issues. EPA believed all parties to the
process would benefit from a complete
public airing of the issues involved in
the first waiver request. Texas properly
submitted substantive and detailed
comments during the comment period
to support its request. However during
the public comment period other
commenters were necessarily focused
on addressing just the limited
information provided in the initial
request submitted by Texas. They did
not have the opportunity to respond to
Texas’ more substantive submission
until after the comment period had
closed. This is not the most efficient use
of EPA’s or the public’s resources,
especially given the short time specified
in the Act for EPA to make a decision.
The guidance in this section is designed
in part to avoid this kind of situation in
the future and better allow the Agency
to meet the statutory deadlines provided
in EISA.
EPA may grant a waiver for no more
than one year unless renewed by the
Administrator. EPA expects that
applicants would state the requested
start date and duration of the waiver,
with waiver applications received
generally at least six months before the
requested start date, and to the extent
that applications cannot be submitted in
such timeframe an application should
include an explanation why such
expectation could not be met. EPA
expects that applicants would notify the
Administrator approximately three
months before the termination of a
waiver period if renewal of the waiver
is desired. The request for an extension
would include an update of the
information and rationale submitted
with the original waiver request.
The Administrator may also grant a
waiver based on severe harm to the
environment of a State, a region, or the
United States, or inadequate domestic
supply. At this time the Agency is not
providing any more specific guidance
for these types of waiver requests, but
anticipates that the guidance discussed
in this section would apply in general
terms to these requests as well.
My decision will affect not only
refiners, importers and other regulated
parties in Texas but also refiners,
importers, and other regulated parties
throughout the nation who must comply
with the renewable fuel standards and
other requirements in order to produce
gasoline and renewable fuel for use in
the United States. A waiver would affect
the national volume of renewable fuel
that is required, and would therefore
affect parties all across the nation who
produce gasoline or renewable fuel, as
VerDate Aug<31>2005
15:38 Aug 12, 2008
Jkt 214001
well as other regulated parties who are
involved in the distribution of such
fuels. For this reason, I hereby
determine and find that this is a final
action of national applicability.
This action is not a rule as defined by
Executive Order 12866. Therefore, it is
exempt from review by the Office of
Management and Budget as required for
rules and regulations by Executive
Order 12866.
Dated: August 7, 2008.
Stephen L. Johnson,
Administrator.
[FR Doc. E8–18738 Filed 8–12–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPP–2008–0046; FRL–8376–8]
Notice of Receipt of Several Pesticide
Petitions Filed for Residues of
Pesticide Chemicals in or on Various
Commodities
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
SUMMARY: This notice announces the
Agency’s receipt of several initial filing
of pesticide petitions proposing the
establishment or modification of
regulations for residues of pesticide
chemicals in or on various commodities
DATES: Comments must be received on
or before September 12, 2008.
ADDRESSES: Submit your comments,
identified by docket identification (ID)
number and the pesticide petition
number (PP) of interest as shown in the
body of this document, by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• Mail: Office of Pesticide Programs
(OPP) Regulatory Public Docket (7502P),
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001.
• Delivery: OPP Regulatory Public
Docket (7502P), Environmental
Protection Agency, Rm. S–4400, One
Potomac Yard (South Bldg.), 2777 S.
Crystal Dr., Arlington, VA. Deliveries
are only accepted during the Docket
Facility’s normal hours of operation
(8:30 a.m. to 4 p.m., Monday through
Friday, excluding legal holidays).
Special arrangements should be made
for deliveries of boxed information. The
Docket Facility telephone number is
(703) 305–5805.
Instructions: Direct your comments to
the docket ID number and the pesticide
PO 00000
Frm 00059
Fmt 4703
Sfmt 4703
petition number of interest as shown in
the body of this document. EPA’s policy
is that all comments received will be
included in the docket without change
and may be made available on-line at
https://www.regulations.gov, including
any personal information provided,
unless the comment includes
information claimed to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Do not submit
information that you consider to be CBI
or otherwise protected through
regulations.gov or e-mail. The
regulations.gov website is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through
regulations.gov, your e-mail address
will be automatically captured and
included as part of the comment that is
placed in the docket and made available
on the Internet. If you submit an
electronic comment, EPA recommends
that you include your name and other
contact information in the body of your
comment and with any disk or CD-ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses.
Docket: All documents in the docket
are listed in the docket index available
at https://www.regulations.gov. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either in the
electronic docket at https://
www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
hours of operation of this Docket
Facility are from 8:30 a.m. to 4 p.m.,
Monday through Friday, excluding legal
holidays. The Docket Facility telephone
number is (703) 305–5805.
FOR FURTHER INFORMATION CONTACT: A
contact person is listed at the end of
each pesticide petition summary and
may be contacted by telephone or email. The mailing address for each
contact person listed is: Registration
E:\FR\FM\13AUN1.SGM
13AUN1
Agencies
[Federal Register Volume 73, Number 157 (Wednesday, August 13, 2008)]
[Notices]
[Pages 47168-47184]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18738]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-8703-5]
Notice of Decision Regarding the State of Texas Request for a
Waiver of a Portion of the Renewable Fuel Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Governor of the State of Texas requested a waiver of 50
percent of the renewable fuel standard (RFS or RFS mandate) for the
time period from September 1, 2008 through August 31, 2009, pursuant to
section 211(o)(7) of the Clean Air Act (the Act), 42 U.S.C. 7545(o)(7).
Based on a thorough review of the record in this case, EPA finds that
the evidence does not support a determination that implementation of
the RFS mandate during the time period at issue would severely harm the
economy of a State, a region, or the United States. EPA is therefore
denying the request for a waiver. In this Notice EPA is also providing
guidance on the Agency's general expectations for future waiver
requests.
DATES: Petitions for review must be filed by October 14, 2008.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2008-0380. All documents and public comment in the
docket are listed on the www.regulations.gov Web site. Publicly
available docket materials are available either electronically through
www.regulations.gov or in hard copy at the Air and Radiation Docket in
EPA Headquarters Library, EPA West Building, Room 3334, 1301
Constitution Ave., NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Reading Room is (202) 566-1744.
The Air and Radiation Docket and Information Center's Web site is
https://www.epa.gov/oar/docket.html. The electronic mail (e-mail)
address for the Air and Radiation Docket is: a-and-r-Docket@epa.gov,
the telephone number is (202) 566-1742, and the Fax number is (202)
566-9744.
FOR FURTHER INFORMATION CONTACT: James W. Caldwell, Office of
Transportation and Air Quality, Mailcode: 6406J, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: (202) 343-2802; e-mail address: Caldwell.jim@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
The RFS program, which requires the use of renewable fuels in the
U.S. transportation sector, was originally adopted by Congress in the
Energy Policy Act of 2005 (EPAct). This program was recently modified
by Congress in the Energy Independence and Security Act of 2007 (EISA).
The RFS program provides that the Administrator, in consultation with
the Secretaries of Agriculture and Energy, may waive the national
renewable fuel volume requirements, in whole or in part, if the
Administrator determines that implementation of the requirement would
severely harm the economy or environment of a State, region, or the
United States (see Clean Air Act section 211(o)(7)(A)).
On April 25, 2008, the Governor of the State of Texas requested a
fifty percent waiver of the national volume requirements for the
renewable fuel standard (RFS or RFS mandate). Texas
[[Page 47169]]
based its request on the assertion that the RFS mandate is
unnecessarily having a negative impact on the economy of Texas,
specifically that increased ethanol production is contributing to
increased corn prices which are negatively affecting its livestock
industry and food prices. EPA published in the Federal Register a
notice of receipt of this request and invited public comment on all
issues relevant to making a decision on Texas's request.
After considering all of the public comments, and consulting with
the Secretaries of Agriculture and Energy, EPA has determined that the
waiver request should be denied. In making this decision, EPA has
interpreted the statutory provisions to require: a determination based
on the expected impact of the RFS program itself, a generally high
degree of confidence that implementation of the RFS program would
severely harm the economy of a State, region, or the United States, and
a high threshold for the nature and degree of harm by requiring a
determination of severe harm. EPA and almost all commenters recognize
that there are many factors that affect the use of biofuels in the U.S.
and the overall impact of such use. However, the RFS waiver provision
calls for EPA to evaluate a much narrower set of issues, focusing on
just the impact of the RFS mandate.
With this framework in mind, EPA evaluated all of the evidence
concerning the issues that are relevant under the waiver provision. In
its supplemental comments, Texas requested that the waiver request
focus on the 2008/2009 corn marketing year. EPA agrees that looking at
the impact with and without a waiver over this time frame is an
important way to identify the impact of implementation of the RFS
program. Several commenters submitted modeling analyses that looked at
the impact of a waiver of the RFS mandate on ethanol production, corn
prices, fuel prices, and other related impacts. In addition to
evaluating the information submitted by Texas and other commenters, the
Agency conducted its own analysis. In consultation with the United
States Department of Agriculture (USDA) and the United States
Department of Energy (DOE), EPA reviewed several economic models and
chose a model created by researchers at Iowa State University (ISU
model) to analyze the impact of the RFS on corn, ethanol, and gasoline
prices based on uncertainty in key variables such as crop yields and
crude oil prices. As part of our analysis, EPA reviewed the underlying
data and assumptions in the ISU model for their appropriateness. In
this context, EPA believes the ISU modeling reflects the most recent
data available, is well designed and documented, and provides a number
of advantages over other approaches to analyzing the issues relevant
for this decision. EPA also considered current market conditions
influencing the production of ethanol in the U.S. such as high oil
prices and the large existing production capacity of the U.S. ethanol
industry, as well as other empirical data including historical and
current Renewable Identification Number (RIN) credit prices.
First, after weighing all of the evidence before it, EPA determined
that the evidence does not support a finding that implementation of the
RFS ``would'' harm the economy of a State, region, or the United
States, because the evidence does not reach the generally high degree
of confidence required for issuance of a waiver under CAA section
211(o)(7)(A). On this issue, EPA believes that this body of information
supports the determination that the most likely result is that the RFS
would have no impact on ethanol production volumes in the relevant time
frame, and therefore no impact on corn, food, or fuel prices.\1\
---------------------------------------------------------------------------
\1\ As discussed later, EPA believes that this body of
information also supports, the determination that implementation of
the RFS would have no significant impact in the relevant time frame.
---------------------------------------------------------------------------
Second, on the issue of the severity of any harm, the weight of all
of the evidence also indicates that were the RFS mandate to have an
impact on the economy during the 2008/2009 corn marketing year, it
would not be of a nature or magnitude that could be characterized as
severe. Even in the modeled scenarios where a waiver of the RFS mandate
might reduce the production of ethanol, the resulting decrease in corn
prices is anticipated to be small (on average $0.30 per bushel of
corn), and there would be an accompanying small increase in the price
of fuel (on average $0.01 per gallon in fuel costs). Such levels of
potential impacts from the RFS program do not satisfy the high
threshold of harm to the economy to be considered severe. We also
conducted a sensitivity analysis on a low probability scenario with
larger potential impacts, the results of which are presented below.
EPA also received comment on several issues not associated with the
economic impacts of RFS. These include comments on the general economic
and environmental impacts of the recent increase in biofuels, and the
effect of the use of biofuels on commodity markets. EPA recognizes that
Texas and many parties, both those supporting the waiver and those
opposing the waiver, have raised issues of great concern to them and to
others in the nation concerning the role of biofuels in our country.
However, the issue before the Agency in this case is much more limited,
as described below in our discussion of EPA's authority under section
211(o)(7)(A) of the Act. Based on a thorough review of the record in
this case and by applying the evidence to the statutory criteria, EPA
finds that the evidence does not support making a determination that
implementation of the mandate would severely harm the economy of a
State, region, or the United States.
This decision on the Texas waiver request is based on current
circumstances and market conditions. However, we recognize that
significant changes could occur in the future with respect to the
multiple factors related to the production and use of renewable fuels
in the U.S. transportation sector. EPA is committed to monitoring the
implementation of the renewable fuels program and its impact on the
economy and environment.
This is the first RFS waiver request to be submitted to EPA and
many important issues were raised and discussed in the public comment
process. In addition to announcing and explaining EPA's decision on the
Texas waiver request, in this Notice the Agency is also providing
guidance to interested parties on its expectations concerning future
requests for a waiver.
II. Overview of RFS Program
The Energy Policy Act of 2005 (EPAct) amended the Clean Air Act to
establish a Renewable Fuel Standard (RFS) Program and gave EPA
responsibility for implementing it. EPAct required EPA to issue
regulations ensuring that gasoline sold in the U.S., on an annual
average basis, contained a specified volume of ``renewable fuel.'' The
mandate schedule began at 4.0 billion gallons of renewable fuel in
2006, and increased to 4.7 in 2007, 5.4 in 2008, 6.1 in 2009, 6.8 in
2010, 7.4 in 2011, and 7.5 billion gallons in 2012. The Energy
Independence and Security Act of 2007 (EISA) amended the RFS program by
extending the years in which Congress specified the required volume of
renewable fuels by ten years, increasing the required volumes for the
renewable fuel mandate, and adding new, separate mandates starting in
2009 for advanced biofuels, including cellulosic biofuel and biomass-
based diesel. EPAct set the 2007 mandate for renewable fuel at 4.7
billion gallons and the 2008 mandate at 5.4 billion gallons.
[[Page 47170]]
EISA increases the 2008 and 2009 RFS renewable fuel mandates to 9.0
billion and 11.1 billion gallons. EISA also imposed additional
requirements for the use of advanced biofuel and biomass-based diesel
in 2009, included within the overall mandate for 11.1 billion gallons
of renewable fuel in 2009.\2\ EPAct had the statutory goal of
increasing the volume of renewable fuels that are required to be used
in the transportation sector and Congress furthered that goal with the
passage of EISA. In this context, implementation of EISA is aimed at
reducing dependence on foreign sources of energy, increasing the
domestic supply of energy, and diversifying the nation's energy
portfolio by requiring the transition from petroleum-based fuels to
bio-based alternatives in the transportation sector. In addition, as
part of EISA, Congress is requiring EPA to perform a life-cycle
analysis of emissions of greenhouse gases associated with the full
lifecycle of renewable fuels, and is requiring a minimum level of
greenhouse gas reduction to qualify for advanced biofuel, cellullosic
biofuel and biomass-based diesel. This will be further discussed in
EPA's upcoming second phase renewable fuel standard rulemaking (RFS2),
which will implement the renewable fuels provisions of EISA.
---------------------------------------------------------------------------
\2\ A more detailed discussion of the requirements for different
types of biofuels is included in Section V.
---------------------------------------------------------------------------
III. EPA's Administrative Process
On April 25, 2008, the Governor of Texas submitted a request to the
Administrator under section 211(o)(7) of the Act for a waiver of 50
percent of the RFS ``mandate for the production of ethanol derived from
grain.'' The request claims that the mandate is unnecessarily having a
negative impact on the economy of Texas and driving up global food
prices. In its request Texas specifically identified increased corn
prices as having a negative effect on its livestock industry and that a
waiver would also provide needed relief to consumers at the grocery
store. This initial request did not include substantive supporting data
or analyses.\3\
---------------------------------------------------------------------------
\3\ Texas subsequently submitted comments during the public
comment period, including a recent briefing paper from the
Agriculture and Food Policy Center at the Texas A&M University along
with an economic analysis on the implications of a RFS waiver on the
price of corn and impacts on the livestock industry as well as
impacts on the petroleum markets and the broader economy. Texas also
clarified that it was asking for a ``50-percent reduction in the
corn-derived, volumetric ethanol mandates, * * * effectively
requesting that EPA, for the foreseeable future, return the RFS
system to the status quo prior to enactment of EISA i.e., to the
much more moderate trajectory that prevailed under the Energy Policy
Act of 2005.'' Texas states its preference that this be accomplished
through a waiver that corresponds to the 2008-2009 crop year (i.e.,
September 1, 2008 through August 31, 2009). The initial Texas waiver
request of April 25, 2008 (Texas waiver request) can be found at
EPA-HQ-OAR-2008-0380-0058. The Texas supplemental comments of June
23, 2008 (Texas supplemental comments) can be found at EPA-HQ-OAR-
2008-0380-0526. In addition, Texas submitted additional comments
after the close of the comment period, on August 6, 2008. These
comments can be found at EPA-HQ-OAR-2008-0380. Given the date on
which the additional comments were received, EPA's response to them
can be found in a Memorandum to the Docket dated August 7, 2008.
---------------------------------------------------------------------------
On May 22, 2008, EPA published a notice requesting comment on the
petition submitted by Texas as well as any matter that might be
relevant to EPA's action on the petition, specifically including (but
not limited to) information that would enable EPA to: (a) Evaluate
whether compliance with the RFS is causing severe harm to the economy
of the State of Texas; (b) evaluate whether the relief requested will
remedy the harm; (c) determine to what extent, if any, a waiver
approval would change demand for ethanol and affect corn or feed
prices; and (d) determine the date on which a waiver should commence
and end if it were granted.\4\ As stated in EPA's notice for comment,
granting a waiver would reduce the national volume requirements under
section 211(o)(2) of the Act, which would have effects in areas of the
country other than Texas. Therefore, EPA invited comment on all issues
relevant to whether and how the Administrator might exercise his
discretion under this waiver provision of the Act, including but not
limited to the impact of a waiver on other regions or parts of the
economy, on the environment, on the goals of the renewable fuel
program, on appropriate mechanisms to implement a waiver if a waiver
were determined to be appropriate, and any other matters considered
relevant.
---------------------------------------------------------------------------
\4\ 73 FR 29753.
---------------------------------------------------------------------------
EPA's public comment period closed on June 23, 2008. EPA received
in excess of 15,000 comments during the comment period; the majority of
the comments were short statements generally in support of the Texas
request. EPA also received numerous comments from various trade
organizations and businesses, Governors and other elected officials,
and environmental organizations supporting or opposing the waiver, many
of which included references to various studies and reports which are
addressed below.
IV. Key Interpretive Issues
As noted above, Section 211(o)(7) of the CAA provides, in part,
that EPA ``may waive the [mandated national RFS volume requirements] in
whole or in part on petition by one or more States * * * (i) based on a
determination by the Administrator * * * that implementation of the
requirement would severely harm the economy or environment of a State,
a region, or the United States, or (ii) based on a determination by the
Administrator * * * that there is an inadequate domestic supply.''
This is the first EPA action in response to a petition under this
provision, and as a result EPA is addressing a number of questions
regarding the scope of this authority. This section discusses EPA's
position on the meaning of various key parts of this provision,
including EPA's views on the interpretations advanced by Texas and
other commenters. Because Texas argues that a waiver is justified under
the claim that ``implementation of the RFS program would severely harm
the economy * * * of a State, a region or the United States,'' we have
focused our review on this provision.
1. Implementation of the RFS Itself Must Severely Harm the Economy
The statute authorizes a waiver where ``implementation of the
requirement would severely harm the economy.'' Texas and several
commenters argue that high corn prices are causing severe harm to the
Texas and U.S. livestock industry as well as to low-income individuals
faced with increasing food costs. They acknowledge that high corn
prices are caused by a number of factors, but argue that the RFS
program is one of the factors leading to these high prices, that it is
a significant or material factor, and that this kind of impact from the
RFS program is sufficient to justify a waiver of the RFS
requirements.\5\ Texas recognizes that the waiver provision ``speaks in
terms of a singular causal link between the mandate and the harm (i.e.
`implementation of the requirement would severely harm')'', but that
``Congress could not have intended to predicate a waiver on such a link
because such a situation is never found in the real world. In the
context of an economy at the scale of a state, region or nation,
outcomes are determined by multiple factors. Congress must have meant
to pivot a waiver on whether the mandates would
[[Page 47171]]
contribute significantly to causing severe harm, as part of a mix of
forces.'' \6\
---------------------------------------------------------------------------
\5\ See Texas supplemental comments, National Cattlemen's Beef
Association at EPA-HQ-OAR-2008-0380-0418 at 1, and Texas Cattle
Feeders Association at EPA-HQ-OAR-2008-0380 at 1.
\6\ Texas supplemental comments at 14.
---------------------------------------------------------------------------
We do not agree with the interpretation Texas offers. The statute
provides that a waiver of the program is authorized where
``implementation of the program would severely harm the economy * * *''
As recognized by Texas, the straightforward meaning of this provision
is that implementation of the RFS program itself must be the cause of
the severe harm.\7\ Texas would instead treat the waiver provision as
if Congress had authorized a waiver where implementation of the program
would significantly contribute to severe harm. The provision adopted by
Congress does not support the interpretation by Texas.
---------------------------------------------------------------------------
\7\ Texas supplemental comments at 14.
---------------------------------------------------------------------------
There are numerous examples in section 211 and other sections of
the Clean Air Act where Congress authorized EPA action based on the
contribution made by a factor or activity, and worded the statute to
clearly indicate this intention. For example, section 211(c)(1) of the
Act authorizes EPA to control or prohibit a fuel or fuel additive where
it ``causes or contributes'' to air or water pollution that may
reasonably be anticipated to endanger public health or welfare.\8\
There are also various waiver provisions where Congress clearly used
language indicating that a waiver could be based on a determination
that there is a contribution to an adverse result or a similar lesser
degree of casual link to the adverse result. Section 211(f)(4), for
example, allows EPA to waive a certain prohibition on fuels and fuel
additives upon a determination that they will not ``cause or
contribute'' to a specified harm. Likewise section 211(h)(5)(A) allows
EPA to remove a federal Reid vapor pressure (RVP) waiver if a state has
supporting documentation to show that the RVP waiver will increase
emissions that ``contribute to air pollution.'' Under section
211(m)(3)(A), EPA may waive the requirement for a wintertime oxygenated
gasoline program where a State demonstrates that mobile sources ``do
not contribute significantly'' to carbon monoxide levels in the area.
Similar language was used by Congress when it referred to lesser
degrees of adverse impact on attainment, such as the provision for a
waiver of the oxygenated gasoline requirement for reformulated gasoline
under section 211(k)(2)(B) (``prevent or interfere with * * *
attainment'') \9\ and section 211(m)(3)(A) (``prevent or interfere with
* * * attainment''). However Congress did not use such language in this
waiver provision, and the omission of any reference to contribution or
similar terms in section 211(o)(7)(A) indicates Congressional intent to
limit the availability of a waiver to situations where implementation
of the RFS program itself would severely harm the economy.\10\
---------------------------------------------------------------------------
\8\ Also see section 202(a)(1) (``cause or contribute'');
section 213(a)(3), (4) (``cause or contribute'' and ``significant
contributor''); and section 231(a)(2) (``cause or contribute'').
\9\ This provision of the Clean Air Act was deleted by the
Energy Policy Act of 2005, ending the requirement that reformulated
gasoline (RFG) contain 2% oxygen content by weight. During the time
that the statutory provision was in effect, EPA considered and
responded to requests to waive the 2% mandate. See Davis v. EPA, 348
F.3d 772 (9th Cir. 2003).
\10\ Even the sentence structure used by Congress indicates that
the harm is to come from the RFS mandate itself. Adding the idea of
significant contribution would call for changing the way ``harm'' is
used from a verb (would * * * harm) to a noun (would contribute
significantly to harm), and changing the kind of harm from the
adverb severely to the adjective severe. Congress however did not
write it that way.
---------------------------------------------------------------------------
Texas essentially asks EPA to interpret this provision as if it was
written to authorize a waiver where implementation of the RFS program
would ``significantly contribute'' to severely harming the economy.
However, Texas offers no explanation of why a ``significant''
contribution would justify such action, as opposed to some other level
of contribution such as a non-de minimis, marginal, moderate, or some
much more substantial contribution. In addition, Texas argues that this
is called for because it would otherwise be impossible to ever
demonstrate that the criteria of a waiver have been met and Congress
could not have intended this result. Texas asserts this conclusion of
impossibility, but fails to even attempt to show that this is the case.
Even if the statute was less clear on its face EPA would still
reject the approach suggested by Texas. Many circumstances other than
RFS could lead to impacts on an economic factor such as increased corn
prices. Other circumstances could be the substantial or the overriding
contributor to such an economic factor. Under Texas' interpretation, a
waiver could be authorized where implementation of the RFS contributed
in any significant manner to such a situation, as long as the economic
factor, overall, was causing severe harm. This approach could apply
even if the economic harm was based on this economic factor in
combination with another economic factor or factors. The degree of harm
actually attributable to implementation of the RFS would not matter. As
long as the RFS would have some significant effect on some economic
factor or combination of factors that was causing severe harm from an
overall perspective, then the degree of harm actually attributable to
the RFS would be irrelevant to EPA's authority to issue a waiver. Given
the logic of Texas' approach and recognizing the many varied and
complex interrelationships in our modern economy, Texas' interpretation
would amount to a very open-ended and wide ranging waiver provision;
EPA does not believe this is what Congress intended. EPA believes that
rejecting Texas' approach, and implementing a more limited waiver
provision that requires a showing that the RFS program itself would
severely harm the economy of a State, region or the U.S., will better
implement Congress' overall desire to promote the use of renewable
fuels, reflected in enacting the expanded RFS program and mandating the
increased utilization of renewable fuels over a number of years.\11\
---------------------------------------------------------------------------
\11\ Indeed, Congress provided for a 9 year schedule in EPAct
and a 14 year schedule in EISA, specifying the total amounts of
renewable fuel that would be required during those years. Under both
EPAct and EISA the required level of the RFS is to increase in each
year after the end of the statutory schedule. EPA is to set the
required level based on consideration of various statutory factors,
with Congress specifying a minimum level of growth in the RFS each
year.
---------------------------------------------------------------------------
2. There Must Be a Generally High Degree of Confidence That There Will
Be Severe Harm as a Result of the Implementation of RFS
The waiver provision indicates that EPA must find that
implementation of the RFS ``would'' harm the economy. We interpret this
as indicating that there must be a generally high degree of confidence
that severe harm would occur from implementation of the RFS. Congress
specifically provided for a lesser degree of confidence in a related
waiver provision, section 211(o)(8). That provision applies for just
the first year of the RFS program, and provides for a waiver of the
2006 mandate 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'' in section 211(o)(7)(A) means Congress intended to
require a greater degree of confidence under the waiver provision at
issue here.
EPA believes that generally requiring a high degree of confidence
that implementation of the RFS would
[[Page 47172]]
severely harm an economy would appropriately implement Congress' intent
for yearly growth in the use of renewable fuels, evidenced by the 2005
and 2007 mandates for such growth. In addition, it would limit waivers
to circumstances where a waiver would be expected to provide effective
relief from harm. If there is generally high confidence that
implementation of the mandate would cause harm, then a waiver should
provide effective relief from that harm. However in situations where
there is not such a high degree of confidence, a waiver might disrupt
the expected growth in use of renewable fuels but there would be no
clear expectation that a waiver would provide a benefit by reducing any
harm. As discussed below, EPA does not need to interpret this provision
in any greater detail for purposes of acting on Texas' petition, as the
circumstances in this case clearly do not demonstrate the required
degree of confidence that severe harm would occur.
Support for EPA's interpretation of this waiver provision is found
in an analogous approach taken by EPA in applying former section
211(k)(2)(B), the provision for waiver of the oxygen content
requirement for RFG. In that provision, Congress provided that EPA
``may'' waive the oxygen content requirement upon a determination that
compliance with this requirement ``would'' prevent or interfere with
attainment of a NAAQS. EPA interpreted this as calling for the waiver
applicant to ``clearly demonstrate'' interference before a waiver would
be granted. This interpretation was upheld in Davis v. EPA, 348 F.3d
772, 779-780 (9th Cir. 2003).
3. ``Severely Harm'' Indicates That Congress Set a High Threshold for
Grant of a Waiver
While the statute does not define the term ``severely harm,'' the
straightforward meaning of this phrase indicates that Congress set a
high threshold for issuance of a waiver. This is also indicated by the
difference between the criteria for a waiver under section 211(o)(7)(A)
and the criteria for a waiver during the first year of the RFS program.
In section 211(o)(8)(A) Congress provided for a waiver based on an
assessment of whether implementation of the RFS in 2006 would result in
``significant adverse impacts'' on consumers. A waiver under section
211(o)(7)(A), however, requires that implementation ``severely harm''
the economy, which is clearly a much higher threshold than
``significant adverse impacts.'' It is also instructive to consider the
use of the term ``severe'' in CAA section 181(a). Ozone nonattainment
areas are classified according to their degree of impairment, along a
continuum of marginal, moderate, serious, severe or extreme ozone
nonattainment areas. Thus, in section 181, ``severe'' indicates a level
of harm that is greater than marginal, moderate, or serious, though
less than extreme. We believe that the term ``severe'' should be
similarly interpreted for purposes of section 211(o)(7)(A), as
indicating a point that is quite far along a continuum of harm, though
short of extreme. EPA does not need to interpret this provision in any
greater detail for purposes of acting on Texas' petition, as the
circumstances in this case clearly do not demonstrate the kind of harm
that would be characterized as severe.
4. Harm to the Economy
EPA must also consider the meaning of the term ``economy'' in
section 211(o)(7)(A)(2). Texas has argued that the term should be
interpreted such that a showing of severe harm to one sector of the
economy, e.g. the livestock industry, is sufficient under the statute.
Others argue that there must be a showing of severe harm to the entire
economy of a State, region or the United States, including all
sectors.\12\ EPA believes that it would be unreasonable to base a
waiver determination solely on consideration of impacts of the RFS
program to one sector of an economy, without also considering the
impacts of the RFS program on other sectors of the economy or on other
kinds of impact. It is possible that one sector of the economy could be
severely harmed, and another greatly benefited from the RFS program; or
the sector that is harmed may make up a quite small part of the overall
economy. Based on the waiver request received and, where appropriate,
public comments, EPA should responsibly review and analyze the economic
information that is reasonably available regarding the full impacts of
the RFS program and a possible waiver, including detrimental and
beneficial impacts, before determining that a waiver of the program is
warranted.\13\
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\12\ Commenters include the Renewable Fuels Association (EPA-HQ-
OAR-2008-0380-0479 at 1) and American Coalition for Ethanol (EPA-HQ-
OAR-2008-0380-0454 at 1-2).
\13\ This is of course limited by the 90 day time frame called
for in the waiver provision.
---------------------------------------------------------------------------
The statute provides that EPA ``may'' waive the RFS volume
requirement after finding that implementation of the RFS program would
severely harm the economy. Therefore, a broad consideration of economic
and other impacts could be undertaken whether or not EPA adopted Texas'
more limited interpretation of the term ``economy.'' For example, if
EPA rejected Texas' interpretation, EPA would determine whether RFS
implementation would severely harm the overall economy of a State,
region, or the U.S. However, if EPA adopted Texas' interpretation, and
then found severe harm to a sector of the economy, EPA would still
evaluate the overall impacts on the economy and other factors before
exercising its discretion under the ``may'' clause to grant or deny the
waiver request. EPA does not need to resolve this issue of
interpretation in this specific waiver decision. As discussed below the
circumstances here do not warrant a waiver under either interpretation.
5. EPA Has Broad Discretion in Determining Whether To Grant a Waiver
Even If Implementation Would Severely Harm the Economy
As noted above, Congress stated that EPA ``may'' grant a waiver if
certain criteria are met, and the term ``may'' typically denotes
discretionary action. Where Congress intends non-discretionary action,
it typically employs a term like ``shall.'' Thus, EPA believes Congress
intentionally gave EPA discretion in determining whether to grant or
deny a waiver request, even in instances where EPA finds that
implementation of the program would severely harm the economy or
environment of a State, region or the United States, or where there is
inadequate domestic supply. As noted above, this interpretation allows
EPA to look broadly at all of the impacts of implementation of the
program, and all of the impacts of a waiver, and does not limit EPA to
looking only at impacts to the economy, a sector of the economy, the
environment, or domestic supply. The relief requested by a waiver
applicant will always, under this provision, be national in character,
hence we expect that EPA will always want to examine the nationwide
effects of the requested relief, and give appropriate weight to the
range of anticipated effects. This interpretation allows EPA to weigh
all of the impacts before deciding to grant or deny a waiver of the
statutory requirements designed to require the expanded use of
renewable fuels.
V. Technical Analysis of RFS Mandate
In this section, we first examine the likelihood that
implementation of the RFS will impact the amount of ethanol produced
and consumed over the 2008/2009 corn marketing year (September 1, 2008
through August 31, 2009), and thereby impact factors such as the price
[[Page 47173]]
of corn during that time period.\14\ Second, we evaluate the impacts
and potential degree of harm from implementation of the RFS on key food
and fuel parameters, such as U.S. corn prices, livestock feed costs,
and fuel prices. As part of this section, we will discuss various
comments and our response to them as appropriate.
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\14\ We use the corn marketing year partially because it is the
time period over which Governor Perry requested the waiver, and
partially because it is the time period over which it is most
straightforward to estimate the impact on corn prices due to a
change in ethanol demand.
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1. Likelihood of Impact of Implementation of the Renewable Fuels
Standard
To analyze the impact of implementation of the RFS, EPA evaluated
the impact of a waiver of the standard. This comparison of
circumstances with and without a waiver identifies the impact properly
associated with implementation of the RFS program for the 2008/2009
marketing year. To make this comparison, the EPA first determined the
most appropriate economic modeling tool to employ for this purpose. EPA
evaluated several models, including the model developed by researchers
at Texas A&M University (TAMU model) \15\ and the model used by Dr.
Elam of FarmEcon, LLC.\16\ We chose a model developed by researchers at
Iowa State University (ISU model) for a number of reasons. First, we
felt it was critical to use a stochastic model to capture a range of
potential outcomes, rather than a point estimate, given potential
variation in a number of critical variables associated with ethanol
production. Second, the ISU model captures the interaction between the
agriculture markets and the energy markets, and is able to look at
uncertainty in variables in both sectors. Given the volatility in both
crude oil and corn prices over the last few years, the ability of the
ISU model to account for this variability gives the model an advantage
over other models that are locked into a single projected crude oil
price or corn crop estimate. Third, while the model has not gone
through formal peer review, the documentation is straightforward and
transparent, and allows all interested parties to understand the
assumptions that drive the results. Finally, the ISU model was designed
to be constantly and quickly updated with the most recently available
data, such as the World Agricultural Supply and Demand Estimate (WASDE)
reports.\17\ This design feature allows the model to be policy
relevant, given the fact that a model is only as reliable as the data
contained within it.
---------------------------------------------------------------------------
\15\ The March TAMU modeling results were referenced in Texas'
initial waiver request and cited by several commenters (EPA-HQ-OAR-
2008-0380-0058). A June update to the March report was provided in
Texas' supplemental comments (EPA-HQ-OAR-2008-0380-0526).
\16\ Several commenters cited the March report by Dr. Elam (EPA-
HQ-OAR-2008-0380-0574). The Balanced Food and Fuel Coalition also
submitted a June version of the report (EPA-HQ-OAR-2008-0380-0465).
\17\ The WASDE is USDA's forecast of supply and demand for major
U.S. and international crops and livestock. The information can be
found at https://www.usda.gov/oce/commodity/wasde/.
---------------------------------------------------------------------------
The ISU model is a stochastic equilibrium model that attempts to
capture the most probable prices of corn, ethanol and fuel given
uncertainty in six variables: Corn acres planted, corn acres harvested,
corn yields, U.S. corn export demand, crude oil prices, and the
capacity of the U.S. corn ethanol industry. For each of the
approximately 1000 simulated scenarios, the model picks a value for a
factor like crude oil price by randomly selecting from a probability
distribution curve \18\ for that factor.\19\ Since the probability of
the specific value of a future crude oil price is built into the
distribution curve for crude oil prices, the greater the probability of
a certain crude oil price the more likely the model will pick that
value for any scenario. The result is that the distribution of the
results from the random draws fairly reflects the probability of the
various uncertain variables. The central tendency of the random draws
represents the most likely estimate of the future circumstances. The
model is run with and without a waiver to determine the impact of a
waiver. Details about the model are included in the June 2008
paper,\20\ although for the results described below, several additional
modifications have been made since June. At EPA's request, ISU
researchers updated their model with the July 11, 2008 WASDE report. In
addition, ISU researchers also modified the assumption that ethanol
will have to be priced on an energy equivalent basis for volumes
greater than 10 billion gallons.\21\ As described in the June paper,
the ISU model had previously assumed ethanol must be priced on an
energy equivalent basis for volumes over 7.7 billion gallons of
ethanol. Additional details on the model changes are included in the
docket.\22\
---------------------------------------------------------------------------
\18\ The distribution curves for the stochastic variables are
based on historical information, where available. Where reliable
data is not available, simplifying assumptions are used. Details are
included in the June 2008 paper (EPA-HQ-OAR-2008-0380-0548).
\19\ The model also accounts for the impact of the blenders' tax
credit and the tariff on imported ethanol. In the scenarios that
were modeled these factors did not change, hence their impact on
demand for ethanol did not change with and without a waiver of the
RFS.
\20\ EPA-HQ-OAR-2008-0380-0548.
\21\ Despite the fact that ethanol contains only 2/3 the energy
value of gasoline, it has historically and continues to be priced to
retail consumers the same as if it is gasoline when it is sold in a
gasoline blend with up to 10 volume percent ethanol (E10). Consumers
are not able to detect the small decrease in fuel economy that
results from a 10 percent blend, therefore ethanol can be priced
based on its volume, not on its energy equivalent basis with
gasoline. The wholesale price for ethanol has likewise followed the
price of gasoline, on average being priced over time roughly 8 c/gal
less than that of gasoline, reflecting its octane value, other
blending costs, and distribution costs. In the last year or so, as
ethanol use has continued to increase, the wholesale price of
ethanol has begun to separate slightly more from that of gasoline
as: (1) The octane value has declined, (2) the distribution costs
have increased to get ethanol to more distant markets, (3) gasoline
prices have increased, and (4) ethanol is having to compete in
markets where gasoline is priced lower than in past ethanol markets.
In recent months, the wholesale price of ethanol may also have been
influenced by some temporary limitations in terminal blending
capabilities to blend all the ethanol being produced. In the long
term, as ethanol volumes increase above about 15 billion gallons,
ethanol will saturate the gasoline market as an E10 blend and
additional volumes of ethanol will have to be consumed in the form
of E85 (a fuel that consists of up to 85 volume percent ethanol).
When sold as E85, consumers will recognize a reduction in their
mileage as compared to the use of an E10 blend due to the reduced
energy content of ethanol. Therefore, retail pricing would be
expected to take this fuel economy impact into account and wholesale
prices for ethanol will have to be below that of gasoline to reflect
its lower energy content. While this change in valuation will not
occur until we reach about 15 billion gallons of ethanol, for our
analysis we have conservatively assumed that this change in
valuation will occur at 10 billion gallons to reflect potential
short term limitations in the distribution system. If we had used 15
billion gallons as the point at which ethanol must be priced on an
energy equivalent basis, the likelihood that the mandate would be
binding would be lower and the magnitude of the impacts smaller in
the scenarios where the mandate was binding.
\22\ See Memorandum to Docket, entitled ``Iowa State University
Modeling Results.''
---------------------------------------------------------------------------
As a result of these updates, the ISU model projects the average
expected amount of ethanol demanded in the United States during the
2008/2009 corn crop year without a waiver will be 11.05 billion
gallons, which consists of approximately 10.67 billion gallons of
domestic production and 380 million gallons (MG) of imports. ISU's
model predicts that for 76 percent of the simulated scenarios, waiving
the RFS mandate would not change the overall level of corn ethanol
production or overall U.S. ethanol consumption in 2008/2009 because
more ethanol would be demanded than the RFS requires. For those 76
percent of the scenarios, waiving the RFS mandate would therefore have
no impact on ethanol
[[Page 47174]]
use, corn prices, ethanol prices, or fuel prices. We refer to that
model result as a 76 percent probability that the RFS will not be
``binding'' in the 2008/2009 marketing year. Conversely, in 24 percent
of the simulated ISU model runs the RFS would be binding. In this case,
binding means that in 24 percent of the random draws of potential corn
production, crude oil prices, and corn demand, the resulting market
demand for ethanol would be below the RFS mandate and, therefore, the
RFS would require greater use of ethanol than the market would
otherwise demand. The binding scenarios are generally those in which
crude oil prices and corn production are relatively low. In those
cases, the RFS would have an impact on ethanol use and the food and
fuel markets in the United States.
For the primary analysis, the ISU model assumes corn ethanol would
account for ten billion gallons of the RFS mandate during the 2008/2009
corn crop year. Because the corn crop year is split over two RFS
compliance years, the 10 billion gallons is based on the fraction of
the corn crop year that would occur in the 2008 compliance year (one-
third) and the 2009 compliance year (two-thirds). EISA requires 9
billion gallons of renewable fuels in 2008 and 11.1 billion gallons in
2009; however, 600 million gallons of the 2009 volume must be advanced
biofuels (including 500 million gallons of biomass-based biofuels).
This advanced biofuel volume is not included in the calculation of the
2008/2009 marketing year mandate, since the ISU model does not include
cellulosic or biodiesel renewable fuels.\23\ As a sensitivity analysis,
ISU researchers also evaluated different scenarios in which some of the
2008/2009 mandate was also met with additional biodiesel production and
renewable identification number (RIN) credits earned from excess
ethanol production in the 2007 and 2008 compliance years.\24\ Both of
these changes essentially make the RFS mandate less binding. We also
conducted a sensitivity analysis that used a distribution curve for
crude oil prices based on a mean crude oil price of $146/barrel. For
that model run, the probability that the mandate would be binding
decreased to 12%. Clearly, this assumption makes a difference in the
modeling results. We believe the $125/barrel mean crude oil price
scenario incorporates the best information available at this time, but
we recognize that conditions may change in the future. For purposes of
simplicity, only the results of the primary analysis using $125/barrel
mean crude oil ISU scenario are presented in this document. However,
the results from the full range of scenarios are included in the
docket.\25\
---------------------------------------------------------------------------
\23\ Although Iowa State analyzed the impact of waiving 100% of
the mandate, the model predicted no difference between waiving 100%
of the mandate and 50% of the mandate, as the amount of ethanol
demanded under all the scenarios without the mandate was more than
five billion gallons of ethanol (50% of the mandate).
\24\ RINs are generated by producers of renewable fuels, and are
used by refiners and importers to show compliance with the RFS.
Excess RINs may be used as credits for the year following their
generation, e.g., 2007 RINs may be used to show compliance with the
2008 RFS standard, and 2008 RINs may be used to show compliance with
the 2009 RFS standard.
\25\ See Memorandum to Docket entitled, ``Iowa State University
Modeling Results.''
---------------------------------------------------------------------------
We believe the results provided by the ISU model are more robust
than Elam's and TAMU's estimates for a number of reasons. Many of the
assumptions used by Elam's model do not appear to accurately reflect
market forces. According to Elam's March paper,\26\ U.S. gasoline and
diesel prices impact the prices of corn and soybeans, but do not
influence the demand for biofuels. In other words, the agricultural
sector portion of the model does not appear to be directly linked to a
fuel market module. Since higher crude oil prices are one of the major
reasons for the increase in biofuel production, we believe this
assumption is a major short coming of the model. Furthermore, the model
used by Elam appears to value ethanol on an energy equivalent
basis.\27\ We believe that ethanol will continue to be priced on a
volumetric basis as long as most of the ethanol is being blended as
E10.
---------------------------------------------------------------------------
\26\ EPA-HQ-OAR-2008-0380-057.
\27\ The lack of model documentation submitted to the docket
with regard to the model limited our ability to fully compare the
results.
---------------------------------------------------------------------------
In his June paper, Elam estimated the impact of waiving the RFS
under two different scenarios: One based on the June WASDE projections
and one based on a ``severe weather'' scenario with a lower corn crop.
Under both scenarios, Elam predicts ethanol production will decrease by
2.1 billion gallons with a 50% waiver of the mandate. However, under
both scenarios Elam estimates that ethanol production will exceed the
mandated levels when the mandate is in place. We do not find this
analysis plausible, since waiving the mandate should have little to no
effect on ethanol production if the projected levels of ethanol demand
exceed the mandate. In addition, we would not expect the same change in
ethanol production to occur as a result of the waiver when corn prices
are $8.00/bushel and when they are $5.80/bushel. When corn costs $8.00/
bushel, we would expect more ethanol producers would not be able to
cover their operating costs and would choose to reduce production.
Therefore there would be a larger potential change in ethanol
production at $8.00/bushel than at $5.80/bushel, which in turn would
lead to a larger impact from waiving the mandate. Finally, we believe
the severe weather scenario presented by Elam overstates the impact of
the recent floods in the Midwest. This scenario assumes a significant
reduction in corn acres harvested and corn yields relative to the WASDE
estimates. Under this severe weather scenario, Elam's projected corn
crop would be 10.85 billion bushels, compared to the higher July WASDE
estimate that 11.7 billion bushels will be produced in 2008/2009.
Similar to the ISU model, the TAMU model is a hybrid stochastic
simulation model that estimates the probabilistic price of corn and
production levels of ethanol with and without various government
biofuel policies over the next few years. However, we believe some of
the inputs used in the model are not as current as the inputs used by
the ISU model. In addition, the TAMU model likely overstates the
probability that the mandate will be binding for two reasons. First,
the projected corn prices are significantly higher than either the June
or July WASDE reports. Whereas the July WASDE report (which assumes the
mandate is still in place) predicts corn prices will be between $5.50-
$6.50/bushel, the TAMU model predicts that corn prices with the mandate
in place will be between $6.70-$7.96/bushel depending on the size of
the corn crop. If the TAMU model was re-run with the July WASDE data,
we believe the results would be closer to the estimates provided by the
ISU model. Second, we believe that the TAMU model undervalues ethanol,
since it assumes ethanol must compete with gasoline on an energy
equivalent basis for all volumes over the quantity projected to be used
to meet reformulated gasoline (RFG) requirements (approximately 3
billion gallons). As discussed in more detail in the following section,
ethanol continues to be priced in the market at a premium over its
energy content since it is primarily used as a gasoline extender. We
expect this trend to continue until significant quantities of ethanol
can no longer be blended as E10 and must be sold as E85. If the TAMU
valued ethanol on a volumetric basis, we would expect the model would
predict higher production levels of ethanol, both with and without the
waiver.
TAMU provides information for three different scenarios: a ``mean
corn crop'',
[[Page 47175]]
a ``95% of mean corn crop'', and a ``90% of mean corn crop''. Using
historical information, TAMU estimates that 79 million acres of corn
will be harvested in 2008/2009 and corn yields will be 153.9 bushels/
acre, resulting in a ``mean corn crop'' production of 12.1 billion
bushels. The ``95% of mean corn crop'' scenario evaluates the effects
of a 5% shortfall in corn production (relative to the mean corn crop
scenario), which corresponds to a crop of 11.5 billion bushels. The
``90% of mean corn crop'' scenario evaluates the effects of a 10%
shortfall relative to the mean corn crop, which corresponds to a corn
crop of 10.9 billion bushels. In the mean corn crop scenario, the TAMU
estimates that the probability that the mandate will be binding is 42%.
In the 95% of mean corn crop scenario, the TAMU model predicts that the
probability that the mandate will be binding is 67%, and in the 90% of
mean corn crop scenario, the probability that the mandate will be
binding is 88%.
Although this mean corn crop scenario production level is higher
than the July WASDE estimates, the impacts of this scenario are
directionally consistent with the ISU results. For example, the TAMU
model predicts that the average expected amount of ethanol that will be
produced in 2008/2009 will be 10.8 billion gallons, which is higher
than the RFS mandate. In their comments, however, Texas asserts that a
shortfall in the range of the 5% or 10% of production ``now appears
highly likely.'' Therefore, Texas concludes that the mandate will
``most likely contribute significantly to causing corn price
increases.'' In light of the July WASDE data, which predicts a corn
crop that is larger than both the 90% mean corn crop and the 95% mean
corn crop scenarios, we believe the 90% mean corn crop scenario
significantly overestimates the potential impact of the flooding. We
believe the mean corn crop and the 95% of mean corn crop scenarios are
more credible than the 90% mean corn crop scenario.
Table 1--Comparison of Key Studies Estimating Corn and Ethanol Prices and Production Levels
----------------------------------------------------------------------------------------------------------------
Elam scenario TAMU mean corn Iowa state mean
based on WASDE crop estimate USDA benchmark*
----------------------------------------------------------------------------------------------------------------
Mean Corn Prices with Mandate ($/bushel).... $5.80 $6.70 $6.00 $5.50-$6.50
Mean Corn Prices with Waiver ($/bushel)..... $4.75 $6.36 $5.93 ...............
Change in Corn Prices with Waiver........... -$1.05 -$0.34 -$0.07 ...............
Mean Corn Production (Billion bushels)...... 11.74 12.14 11.70 11.70
Mean Ethanol Price with Mandate ($/gal)..... $2.76 $2.89 $2.59 ...............
Mean Ethanol Price with Waiver ($/gal)...... $2.76 $2.76 $2.57 ...............
Mean Domestic Ethanol Demand w/Mandate 11.00 10.78 11.05 ...............
(Billion gallons)..........................
Mean Domestic Ethanol Production w/Waiver 8.94 10.05 10.90 ...............
(Billion gallons)..........................
Probability that Mandate is Binding......... N/A 42% 24% ...............
----------------------------------------------------------------------------------------------------------------
Since Congress enacted the Energy Policy Act in 2005, biofuel
production has consistently been higher than the RFS mandated levels,
which is an indication that factors other than the RFS requirements
have been the primary drivers of biofuel growth. In addition, in its
2007 Annual Energy Outlook (AEO), the Energy Information Administration
(EIA) projected that even without the recent renewable fuels
requirement in EISA, ethanol use would increase to 12 billion gallons
in 2010. This dramatic increase in ethanol use was estimated to occur
despite assuming crude oil prices in the $50 to $60 dollar per barrel
range. Assuming other factors remain constant, the higher oil prices
that we are experiencing now would provide an even greater incentive to
produce and use additional ethanol from corn.
ISU's estimate for the maximum ethanol capacity in 2008/2009 is
13.5 billion gallons, which is similar to EPA's estimate that over 13
billion gallons of plant capacity was on-line or under construction as
of December 19, 2007 when EISA was passed.\28\ Once ethanol production
capacity is built, we expect ethanol producers will continue making
ethanol to the extent that they can cover their operating costs.
Therefore, ethanol production in the short term is highly dependent on
the built capacity of the ethanol industry rather than the mandate.
---------------------------------------------------------------------------
\28\ These estimates are for the ethanol production capacity and
are higher than the volumes of ethanol that are projected to be
produced. See Memorandum to Docket entitled, ``Ethanol Capacity
Estimates.''
---------------------------------------------------------------------------
Certain empirical data also supports the projection that the RFS is
unlikely to be binding in the 2008/2009 timeframe. For example, the
price of tradable renewable identification number (RIN) credits remains
relatively low: Below five cents per gallon as of July 1, 2008.
Refiners and importers verify their compliance with the RFS by
collecting and expending RINs, which are assigned to volumes of
renewable fuel by their producers. Refiners and importers use RINs for
an appropriate volume of renewable fuel to demonstrate compliance with
their RFS volume requirement. Parties that exceed their RFS obligations
for a compliance period can trade excess RINs to other parties that
need them for compliance. When the mandate is expected to be binding,
we would expect the demand for RINs would increase and the supply of
excess RINs to decrease, leading to an increase in price for RINs.
The RIN banking and rollover provisions of the RFS also allow
obligated parties to use or trade current RINs in the next compliance
period. Therefore, we would expect the current RIN price to reflect the
market's current and near-term expectations about how binding the RFS
is likely to be. The most recent available data shows that the RIN
price was below 3 cents per gallon of ethanol on July 18, 2008. This
RIN price represents a very small share of the price of a gallon of
ethanol, suggesting that refiners and blenders expect the RFS is not
likely to be binding in 2008 or 2009. It is possible that RIN prices
have been depressed by market uncertainty generated by Texas' waiver
request. However, the record high RIN price before the Texas waiver
request was only approximately 6.5 cents per gallon. Unlike the
previous discussion in this section which involved different
agricultural sector models that seek to evaluate the impacts of the
RFS, the RIN price is the result of actual market outcomes, as opposed
to a modeled result. EPA believes the RIN price information is one
additional way to evaluate the likelihood of an impact from
implementation of the RFS. In this case, the RIN price information
corroborates the modeled impacts of the RFS.
[[Page 47176]]
2. Severity of Impact
(a) Corn Price Impacts
When evaluating the economic impacts of waiving the mandate, our
analysis centered on four major areas: U.S. corn prices, food prices,
feed prices, and fuel prices. While there may be other areas of
potential impact, we focused on these areas because they are expected
to have the largest potential economic impacts in the U.S. Given the
limited time available for this analysis, we have not looked at the
interaction of these impacts in an integrated modeling system. However,
we believe that looking at these indicators individually provide a
useful framework for determining the potential severity of the impact
of the RFS mandate.
As described in the previous section, we believe that
implementation of the RFS would not have a significant impact on
expected ethanol production in 2008/2009, with the most likely result
being no impact on ethanol production. We have analyzed the impacts of
waiving the mandate under a wide variety of scenarios, ranging from
worst case scenarios to the more likely situations. Based on the ISU
modeling results, the average expected impact of waiving the mandate
over all the potential outcomes, both those binding and those non-
binding, would be a decrease in the price of corn by $0.07/bushel. In
the limited subset of potential outcomes in which the mandate is
binding (24% of the results), waiving the mandate would result in an
average expected decrease in the price of corn of $0.30/bushel.
However small the probability, we also recognize it is possible
that all the market outcomes could converge to result in a worst case
scenario, therefore, we also provide this example to help bracket the
range of potential outcomes. The ``Worst Case'' example demonstrates
the largest potential change in corn price predicted by the ISU model
as a result of the waiver, which is a decrease in corn prices of $1.38/
bushel. Table 2 presents the three ISU scenarios.
Table 2--Range of Estimated Corn Prices and Production Levels
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Iowa state
Iowa state mean Iowa state when ``worst case''
estimate mandate binds example
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Mean Corn Prices with Mandate ($/bushel)................... $6.00 $6.40 $6.85
Mean Corn Prices with Waiver ($/bushel).................... $5.93 $6.10 $5.47
Change in Corn Prices with Waiver ($/bushel)............... -$0.07 -$0.30 -$1.38
Mean Corn Production (Billion bushels)..................... 11.70 11.22 10.57
Percentage of Times Mandate is Binding..................... 24% 100% N/A
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(b) Food Price Impacts
In consultation with USDA, EPA estimated how the changes in corn
prices influence U.S. food prices. The results of the modele