School House Rock: How a Bill becomes a Law and then Fully Defined (using the Renewable Fuel Standard as an Example)

KEY TAKEAWAY EPA works within the framework of Congressional legislation and prior rules of their own and other federal departments' making. The process is transparent; influenced by science, economics, and public comment; evolutionary; and available for anyone willing to read extensively. INTRODUCTION I'm just a bill, sitting here on Capitol Hill. While almost everyone 45 years old or older knows the refrain, we rarely consider the linkage between environmental regulations that shape wastewater-treatment operations/projects and the legislated authority that Congress must create to frame that structure. Instead, we ask or hear questions like: 'Doesn't the United States (US) Environmental Protection Agency (EPA) understand that making all co-digestion biogas renewable identification numbers (RINs) only Advanced (or 'D5') instead of Cellulosic (or 'D3'; worth 2 to 3 times the value of D5s) discourages water resource recovery facilities (WRRFs) from recovering more resources?'; or 'Why doesn't the Renewable Fuel Standard (RFS) provide for electric RINs (e-RINS)?' This paper is less about how congress creates laws & and more about what happens afterwards to make federal policy and programs that deliver benefits to the public at-large and the environment. The Energy Policy Act of 2005 and its successor law, the Energy Independence and Security Act (2007) established the RFS. EPA promulgated rules that we will rely on as a relevant 'case study'. RFS evolution and context provides insight into the following aspects of Federal policymaking and program implementation: - Inter-relationships between Executive, Legislative, and Judicial branches. - How Presidential Administrations can (and in some ways cannot) influence regulation. - The public provides input to the process. - Bureaucracy is a good thing that while slow-moving; limited by legislated authority; constrained by prior regulations; methodically moves toward 'getting it right' on a foundation of science, economics, and available hard data. Readers are encouraged to read this paper with an open mind and rigorously explore all claims (e.g. consult the citations) that conflict with preconceived notions or otherwise. Please contact us to discuss findings that support or (more importantly) conflict with our positions & so that we might improve our collective understanding of these subjects. Congressional legislation creates the framework for new programs like the RFS and provides many of the details, specific requirements, and guardrails for each program. EPA then conducts rulemaking within the legislated framework to define program implementation and compliance. An example of how the proposed full paper would inform the reader is included in this abstract. That example covers the regulatory basis for EPA's distinction that cellulosic RINs, both D3 and D7, must be derived from feedstocks comprised of at least 75% cellulosic content (in addition to providing the largest/over-60% life-cycle greenhouse gas (GHG) reductions. CELLULOSIC RINS MUST HAVE OVER-75%-CELLULOSIC FEEDSTOCK The cellulosic discussion originates in the 2005 legislation. The 2005 Act envisions an industry where non-food (i.e. 'waste') agricultural materials are converted into cellulosic ethanol and provided incentives to foster said-industry's innovation and development. The 2007 Congressional legislation provides the following definition : ''Cellulosic biofuel' means renewable fuel derived from any cellulose, hemicellulose, or lignin that is derived from renewable biomass and that has lifecycle greenhouse gas emissions, as determined by the Administrator, that are at least 60 percent less than the baseline lifecycle greenhouse gas emissions.' The 2007 Act also made provisions for EPA to adjust cellulosic volume requirements downward to match actual production when production fell below legislated minimums and identified cellulosic waiver credits as a volume-shortfall bridging mechanism . In Spring 2007, EPA published Regulation of Fuels and Fuel Additives: Renewable Fuel Standard Program (or RFS-1). RFS-1 required 116 pages of 3-column CFR text with details on a wide array or air-quality benefits associated with the RFS. The potentially most enlightening cellulosic discussion within RFS-1 relates to equivalence determinations for various fuels. Specifically, that cellulosic-biomass ethanol has 2.5 times the per-gallon value of corn ethanol (with an equivalence of 1.0) which mirrors the higher historical values attributed to cellulosic RINs. The balance of RFS-1 provides many foundational details of the RFS, but little on cellulosic biofuels (with continued cellulosic ethanol focus). In 2010, EPA published Modifications to RFS-1 (or 'RFS-2') which provided the first minimum volume by-type and by-year table with cellulosic RINs as one of 4 nested categories. EPA published the 'Pathways II' rule in mid-2014. This rule determined that 'EPA has decided to finalize a cellulosic content approach, with a minimum cellulosic content threshold of 75%' in order to qualify for cellulosic RINs . That determination is supported by an extensive discussion on options considered and the rationale for its selection. The discussion further states that the 75% threshold has been consistently applied to other Pathways II updates; which includes updating Table 1 to include Pathway Q, which allowed renewable compressed or liquefied natural gas from municipal wastewater treatment digester biogas to be classified as D3 RINs . EPA has recently suggested that no regulatory pathway currently exists to allow for feedstocks with less than 75% cellulosic content like FOG (primarily lipids and not cellulosic) or food waste (with typically less than 75% cellulosic content) to be co-digested with municipal sludge within a single digester, diluting the combined feedstock cellulosic content to below 75% - and still qualify for D3 RINs (without special provisions). While that discussion should proceed, it is important for the domestic wastewater industry to understand that without new data and/or approaches, and possibly new EPA rules for co-digestion & that EPA's 'hands are tied' by the rules currently in place. SUMMARY This paper informs both procedurally (on how the RFS is administered and legislated) and technically with details for anyone involved with RFS projects. Fully referenced discussions will be provided on the following aspects of the RFS and its ongoing legislative process: - EPA amended the methodology to estimate RIN volumes for the 2018 calendar year. The revision was published, explained, and has been in use since. - While EPA administers the RFS, that administration is done in close cooperation with the US Departments of Energy and Agriculture. Examples of such coordination will be provided. - The Renewables Enhancement and Growth Support Rule was issued as a proposed rule in late 2016 to address shortcomings in the RFP program (including provisions for intermediate biofuel products; a framework for eRIN development; and other topics. This proposed rule and its eventual withdrawal will show how changing Presidential Administrations can influence the regulatory process. - Two or three examples will be provided on how filed public comments on proposed rules changed EPA's understanding and affected the final published rules. - Finally, as an example of how the Judicial branch of the government affects the administration of laws, a discussion will be included on the Tenth Circuit Court of Appeals determination that EPA had exceeded its authority in granting small refinery exemptions (Renewable Fuels Association et al. v. EPA case, January 24, 2020) and EPA's response to that determination.