Today, Earthjustice on behalf of the National Wildlife Federation (NWF) filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit, challenging the Environmental Protection Agency’s (EPA) 2023-2025 “Set” Rule for the Renewable Fuel Standard, as a violation of the Clean Air Act (CAA) and the Administrative Procedure Act (APA). Despite numerous studies highlighting the significant adverse climate and environmental consequences associated with the large-scale production of conventional biofuels such as corn ethanol and soy biodiesel, EPA unlawfully ignored this evidence and instead chose to increase the mandated biofuel volume.

“While originally well-intentioned, the Renewable Fuel Standard, partially through the EPA’s flawed implementation of the law, has failed to live up to its promise of greenhouse gas emissions reductions while destroying important wildlife habitat in the process,” said David DeGennaro, senior policy specialist for climate and energy at the National Wildlife Federation. “With its ‘Set’ rule, the EPA not only missed an opportunity to right the ship, but ignored its own science to make things worse.”

For the first time since 2007, EPA had the opportunity to revise the renewable fuel volume obligations for 2023 and to set volumes that satisfy the climate and environmental requirements of the Renewable Fuel Standard (RFS) and that reflect the realities of both crop-based biofuel production and the modern transportation sector. The industrialized production of corn and soy leads to tremendous local air and water pollution and biodiversity loss, as well as significant greenhouse gas (GHG) emissions. Production of renewable biomass has caused and continues to cause extensive conversion of grassland and forest in the U.S. and abroad, with enormous climate impacts. And, this production also comes with a substantial cost: at a time when we are looking not only to cut emissions but also to draw down carbon dioxide from the atmosphere, the production of renewable biomass prevents millions of acres of land from being used to sequester more carbon. Restoration of forests and native grasslands is a proven and effective way to achieve negative emissions. Even EPA’s own Science Advisory Board has found that the transition to biofuels produced from food crops has not been a successful method of decarbonizing the transportation sector.

“In the United States, we grow corn and soy for biofuels on almost 60 million acres — equivalent to about all of Iowa and Indiana combined — and this EPA Rule mandates this production,” said Peter Lehner, Managing Attorney of the Sustainable Food & Farming program at Earthjustice. “Yet about 200,000 acres of solar panels would provide the same transportation energy, leaving over 59 million acres to help us drawdown carbon and stabilize the climate. EPA’s refusal to seriously consider this enormous impact is both illegal and profoundly harmful to our climate future.”

In setting renewable fuel volumes for 2023 and beyond, the Clean Air Act requires EPA to consider “a variety of factors specified in the statute, including costs, air quality, climate change, implementation of the program to date, energy security, infrastructure issues, commodity prices, water quality, and supply.” Yet despite this recognition, and despite ample evidence in the record demonstrating the deleterious impacts the industrialized production of corn and soy has had on climate and the environment, EPA’s Set Rule will continue the trend of increased production of crop-based biofuels, exacerbating the very impacts the RFS was designed to protect against. And EPA overlooked the evidence showing the greater efficiency of shifting to electric vehicles: use of photovoltaic energy to fuel electric vehicles produces more than 300 times more transportation energy per acre of land than production of corn and soy as biofuel. By ignoring the record evidence, and by setting volumes that increase harms to climate and the environment, EPA’s actions violated the CAA and the APA.

EPA also chose to disregard the findings of its own comparison of various analyses (models) of the climate impact of the rule — analyses that more often found a significant negative climate impact from conventional biofuel production. In addition, EPA conducted — but ignored — a cost benefit analysis that found that the rule would impose almost $25 billion of additional fuel and food costs on consumers and yet provide negligible fuel security or climate benefits.

“As the world faces a global land squeeze driven by the need to feed a growing population, protect biodiversity, and sequester carbon in forests to avoid the worst consequences of climate change we need to make smart decisions to ensure that every acre is used wisely, “said Dan Lashof, Director of the World Resources Institute. “EPA failed this test by ignoring the opportunity cost of dedicating prime farmland to biofuel production when it mandated increased use of biofuels in 2023-2025.”