Evaluating EPA's arguments for RFS waiver authority
The bottom line here, setting aside case law and parsing dictionary definitions, is really a matter of who gets to make this kind of decision about the RFS: Congress or the Executive branch. It is not about whether the blend wall is a problem; nor is it about the merits of having the blend wall regulate the year-to-year mandates. The real issue is whether EPA is the proper player in our Constitutional system of government to design such a policy solution if one is necessary. It is entirely possible that Congress understood the blend wall issues in 2007 when it created the RFS. Congress may well have intended for the mandates in the statute to motivate or force the industry to find solutions for the myriad challenges facing renewable fuels, including the blend wall. What we do know from the law is the clear intention that the RFS drive production of increasing amounts of renewable fuels to replace fuels derived from oil. By using the blend wall in this manner, EPA may well be short-circuiting those goals and intentions. It is therefore difficult to see how EPA is doing anything other than legislating a policy in place of - if not contrary to - Congress. Whether the policy makes sense does not matter; the central issue is whether it is Constitutionally-acceptable for EPA to make this binding policy decision as it carries out the statute. And this is the issue that may have to be eventually decided in the courts.
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