EPA Unwavering in Support for Ethanol, Despite Drought

Last Friday the US Environmental Protection Agency (EPA) rejected the petitions of a bi-partisan group of state governors for a waiver of the federal ethanol mandate, resolving one of several energy-related issues that had been deferred beyond the presidential election.  The waiver requests filed in August cited the harm that the Renewable Fuel Standard (RFS) is causing to the poultry, dairy and livestock sectors and related businesses--and by extension to consumers--by increasing competition for corn during a severe drought that has sharply constrained supply.  The EPA's detailed response made frequent references to the "high statutory threshold of severe harm to the economy" required for a waiver of the RFS, and to the output of a model simulating the market for corn and ethanol. It also included the extraordinary assertion that, "the RFS volume requirements will have no impact on ethanol production volumes in the relevant time frame, and therefore will have no impact on corn, food, or fuel prices."  If that were true, then it's not obvious why the mandate should exist at all.

In rejecting pleas for relaxation of the ethanol standard, the EPA appears to be relying on two key facts.  First, wholesale ethanol prices remain lower than wholesale gasoline prices, despite corn prices that are high enough to force many ethanol producers to cut back output.  I'd attribute that mainly to weak US gasoline demand and the much-discussed impact of the "blend wall" in limiting ethanol to 10% of the gasoline pool, rather than as a sign of an unaffected market.  The agency is also relying on the availability of "paper ethanol" in the form of Renewable Identification Number (RIN) credits from past over-blending of ethanol by refiners and other gasoline blenders.  The EPA's estimate puts the number of available RINs at the equivalent of 2-3 billion gallons, or around 20% of this year's 13.2 billion gallon conventional ethanol requirement. As a result of these factors, EPA can claim with some justification that ethanol prices are not harming motorists at the gas pump at this time.  That's small consolation to the petitioners.

EPA's assurances to those in the poultry, dairy and livestock value chains are based on much thinner evidence--in fact, on none at all, unless you count as evidence a model that predicts corn prices would only fall by $0.58 per bushel if the ethanol mandate were eliminated entirely.  Simulations are useful but still aren't reality. The output of a model is only as good as its assumptions and algorithms, and when that output defies logic, it calls for the application of good judgment, particularly when the result happens to align so neatly with the internal concerns about the long-term implications of a waiver that are evident in the agency's response.  I can't help concluding that an agency whose management possessed greater depth and breadth of experience outside of government--especially in the business sector--would have given more weight to the struggles of the dairies, ranchers, meat-packers and others who are being squeezed by a mandate that is projected to consume 42% of this year's corn crop and is very likely inflating the cost of the Thanksgiving meal that many of my US readers will eat on Thursday.   This administration's lack of outside experience has been a glaring shortcoming that the President could easily remedy as turnover creates openings at the start of his second term. 

I can't say that I'm surprised by the EPA's ruling on the waiver requests.  I also can't help wondering whether it provides any indication of how the administration is likely to deal with the other issues that were deferred until after the election.  Yet even if we can't read anything else into this decision, it's clear that the Renewable Fuel Standard enacted in 2007--before the financial crisis and recession--is in serious need of reform.  If its language doesn't require the EPA to adjust the ethanol mandate in light of a drought that will result in the smallest corn crop since 2006, when US ethanol production was 65% lower than last year, then the law simply didn't incorporate sufficient foresight about possible future events.  Together with its unrealistically ambitious cellulosic biofuel standard, the provisions of the RFS increasingly seem to relate to some other, parallel universe, rather than the one in which we live.  

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Tell California No

One of the most eagerly-awaited environmental decisions of the year is currently in the hands of the new Administrator of the Environmental Protection Agency. California has requested a waiver under the Clean Air Act to regulate CO2 as a pollutant from cars, based on the Supreme Court decision in Massachusetts v. EPA that confirmed that the EPA had the authority to regulate greenhouse gases. When I examined this issue in late 2007, I expected California to prevail in its request, and I still do. That doesn't mean, however, that there are not compelling reasons why it shouldn't. I can't think of a better signal the Obama Administration could send concerning the new federal direction on climate change than telling California, "Thanks for keeping the torch burning, but we'll take it from here."

There are two good reasons to turn down California's request to regulate tailpipe emissions, which would result in a de facto standard for Corporate Average Fuel Economy (CAFE) much more aggressive than the federal standard enacted by the Energy Independence and Security Act of 2007. The first reason is unlikely to gain traction, because frankly this boat has already sailed. I mention it only because I still believe it has merit. Simply put, based on engineering principles, the Supreme Court was wrong to designate CO2 as a pollutant, and any extension of the Clean Air Act (CAA) to cover it is based on a misunderstanding of the origins of this greenhouse gas.

Although it's widely accepted that CO2 emissions are a primary cause of climate change, that doesn't make CO2 a pollutant. Too much CO2 is bad, but then so is too much water, if you are drowning or standing downstream of an approaching flood. That doesn't make water a pollutant. CO2 emissions are not the result of a fuel impurity or a byproduct of combustion in engines and boilers, like the smog-forming pollutants the CAA was designed to regulate. It is a fundamental, inescapable consequence of all combustion and many natural processes, and the vast majority of it is recycled into plants and rocks, or dissolved in the oceans. The steady accumulation of the small remaining excess in the atmosphere creates the central problem in global warming. Unfortunately, we can't eliminate CO2 from car exhaust with filters, catalytic converters, additives, or more intensive fuel refining, but only by changing the way cars use energy, and by changing the way we use cars. That goes well beyond any reasonable interpretation of the intent of the CAA, though I suspect this point is no longer of any concern to policy makers.

What ought to be of great concern to policy makers is another, more pragmatic reason to turn down California's request, and by extension that of the thirteen states that wish to opt in to the California standard. Climate change is a global problem, and the science of predicting its local consequences is still in its infancy. Managing our greenhouse gas emissions must ultimately be addressed globally. Until that happens, they need to be tackled at the largest level of aggregation available, because the consequences of climate change will affect us all, directly or indirectly, and because the industries and consumption patterns involved in reducing emissions are so fundamental to the economy. Changing them will require resources and innovation on a national scale. I know that California is larger than many countries--I used to trot this point out regularly when I lived there--but that does not alter the nature of its connection to and interdependence with the rest of the country. In particular, while California has a few bits and pieces of the US car industry, in the form of an assembly plant or two, some parts suppliers, and design centers, the primary impact of its regulation of CO2 would be felt not in the Golden State, but in states such as Michigan, Ohio, Kentucky, Alabama and North Carolina. The effect on interstate commerce and the absence of overridingly unique local impacts should put regulation of CO2 explicitly within the purview of the federal government, not the various states.

A little more than a year ago I reluctantly conceded that California's desire to regulate CO2 from cars was justified by application of the notion of "lead, follow, or get out of the way," in the absence of any immediate prospect of the federal government's taking that lead with respect to climate change. The election has drastically altered those circumstances. It is inconceivable that the Obama Administration, with strong majorities in the Congress, will fail to enact sweeping federal measures to address climate change urgently and aggressively. It looks very likely that we'll have cap & trade within the next year or two, and if tighter CAFE standards are part of the solution--though I remain skeptical of their efficacy without a strong price signal to drive consumer behavior--they should cover the whole country, not just a few states. If we want Detroit to invest in emissions-reducing technologies, then it must have a national market for them. It ought to be instructive that Europe has done precisely that with a tailpipe emissions standard for the whole EU, not member by member.

Administrator Jackson has promised an "impartial review" of California's request, complete with public hearings. Her decision should follow the public comment period that will apparently end April 6. I hope that her finding will signal the end of a long period in which states were forced to blaze the trail on climate change, but can now yield leadership back to the federal government that must speak with one voice in the negotiations toward a global climate agreement in Copenhagen, this December.

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