Daily Rules, Proposed Rules, and Notices of the Federal Government
On September 15, 2011, the EPA issued final rules establishing standards limiting emissions of CO
POP Diesel petitioned EPA to reconsider its greenhouse standards. Because the petition does not state grounds which satisfy the requirements of section 307(d)(7)(B) of the Act, and does not provide substantial support for the argument that the promulgated regulation should be revised, EPA is denying the petition.
Section 307(d)(7)(B) of the Clean Air Act (CAA) states that: “Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed. If the Administrator refuses to convene such a proceeding, such person may seek review of such refusal in the United States court of appeals for the appropriate circuit. Such reconsideration shall not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed pending such reconsideration, however, by the Administrator or the court for a period not to exceed three months.”
Thus, for reconsideration to be mandated, a petition for reconsideration must show why the objection or claim could not have been presented during the comment period—either because it was impracticable to raise the objection during that time or because the grounds for raising the objection arose after the period for public comment but within 60 days of publication of the final action (i.e. “the time specified for judicial review”). To be of central relevance to the outcome of a rule, an objection must provide substantial support for the argument that the promulgated regulation should be revised. See 76 FR 28318 (May 17, 2011) and other actions there cited.
Because all of the objections or claims raised in POP Diesel's petition could have been presented to EPA during the rulemaking, EPA is denying the request for reconsideration. EPA also finds that the petitioner has not provided substantial support for the argument that the promulgated regulation should be revised and is denying the request for reconsideration for that reason as well.
POP Diesel filed a petition for reconsideration with EPA on November 14, 2011 and supplemented this petition on February 12, 2012. The company produces equipment intended to be installed after-market on diesel engines to permit the engines to operate on 100 percent untransestrified plant oil. February 12 Petition p. 12. The engine starts and shuts down on diesel from an original fuel tank during startup and shutoff but at all other times would run on 100 percent plant oil coming from an auxiliary tank.
The objection raised in POP Diesel's petitions is that EPA failed to adequately consider the so-called rebound effect during the rulemaking. POP Diesel maintains that “[t]he GHG standards will have the effect of making diesel engines less expensive to operate on petroleum fuel, which may, in fact, spur demand and have the result of increasing overall energy consumption and likely, consumption of fossil fuels.” November 14, 2011 Petition p. 15. In its supplement to its original petition, POP Diesel elaborated on this objection, maintaining that the rules would increase GHG emissions from heavy-duty vehicles due to aspects of the rebound effect not accounted for in EPA's analysis. Specifically, POP Diesel maintains that EPA underestimated the direct rebound effect and that a revised estimate of the direct rebound effect would result in an increase in greenhouse gas emissions Also, POP Diesel maintains that there are indirect, “embedded energy” (increased energy use as a result of additional goods and services produced) and “frontier” (creation of new, energy-intense products) rebound effects which EPA failed to examine, instead only analyzing direct effects in the form of estimated increase in vehicle miles travelled (and increases in GHG and criteria pollutant emissions associated with that increase). February 12, 2012 Supplemental Petition p. 12. These objections are accompanied by a supporting declaration of Dr. Harry Duston Saunders (a published researcher in energy economics) likewise dated February 12, 2012.
POP Diesel does not address why this objection could not have been raised during the public comment period, as required by section 307(d)(7)(B). EPA discussed the rebound effect at length in the proposed rule. See 75 FR 74152, 74316-20 (November 30, 2010). The proposal included specific discussions of factors affecting the magnitude of the rebound effect, options for quantifying the effect (including aggregate estimates, sector-specific estimates, econometric estimates, and other modeling approaches), as well as quantified estimates of the effect which EPA thereupon applied in estimating the proposed rules' impacts on GHG emissions, criteria pollutant emissions, as well as overall costs and benefits of the proposed program.
A second reason that POP Diesel's objections do not require EPA to reconsider the rule is that the declaration of Dr. Saunders is dated February 12, 2012, outside of the period specified for judicial review—i.e. November 11, 2011. Even if POP Diesel's objections could not have been raised during the public comment period (which is not the case), the grounds for objection did not arise “during the time specified for judicial review”, as required by section 307(d)(7)(B).
POP Diesel also reiterates a number of arguments it already presented to EPA in its comments to the proposed rule. Specifically, the petition maintains that EPA should have evaluated all emission control technologies on a lifecycle basis (“[i]n considering only tailpipe emissions, rather than the full lifecycle GHG emissions of a technology and fuel that would result from a wells-to-wheels analysis, the Regulations arbitrarily favor and disfavor some alternatives over others”, February amended petition p. 7). EPA addressed these issues during the rulemaking. See 75 FR at 74198, 255-56 (proposal); 76 FR at 57246-47 (final rule) and Response to Comment Document at 16-157. EPA's proposal likewise addressed the issues of whether compliance with the standards should be measured on a tailpipe or lifecycle basis, and what if any incentives were appropriate for advanced technologies and alternative fuel vehicles. See 75 FR at 74198, 255-56. Consequently, these are not issues which EPA is compelled to reconsider under section 307(d)(7)(B), since these objections could have been and were raised during the public comment period on the proposed rule. EPA also rejects the substance of the arguments raised in the petitions.
POP Diesel first maintains that EPA underestimated the extent of the direct rebound effect, and that assigning different estimates of rebound effects to different heavy-duty vehicle classes (medium-duty pickups and vans, vocational vehicles, and combination tractors) was arbitrary. Saunders Affidavit paras. 35-36.
These values are based on the best available data and econometric methods
POP Diesel also maintains that EPA should account for the energy and GHG emissions impact associated with the so-called “indirect” rebound effects (distinct from the “direct” rebound effect). These effects could arise from the decline in fuel costs as a result of the rule, which could make goods and services transported by the U.S. trucking industry less expensive. In turn, less expensive goods and services could result in increased consumption of goods and service in the overall economy. Producing extra goods and services requires that more energy be used. This extra energy use can be thought of as “embodied” in the extra goods and services. Hence the term for this type of indirect rebound effect is the “embodied energy” rebound effect. The increased energy use from this type of indirect rebound effect could result in increased greenhouse gas emissions. Saunders Affidavit para. 46 Appendix A. A further indirect rebound effect unaccounted for, according to the petition, is the “frontier” rebound effect whereby energy efficiency gains enable creation of completely new products which are themselves energy intensive.
EPA is not aware of any data to indicate that the magnitude of indirect rebound effects, if any, would be significant for this rule. Research on indirect rebound effects is nascent. The magnitude of effects from our rule postulated in the Saunders affidavit has no support in the literature,
POP Diesel requests EPA to re-evaluate the weight given to various alternative technologies and fuels according to a lifecycle approach, and to decouple fuel efficiency policy from GHG emissions policy. February 12 Petition p. 2. In setting emissions standards for heavy-duty vehicles, EPA reasonably chose to consider the impact on GHG emissions of the fuels used by the different types of vehicles by measuring the tailpipe emissions of vehicles, including alternative fuel vehicles (which normally emit less GHG emissions than gasoline or diesel-powered vehicles).
EPA also does not accept the major premise of POP Diesel's reconsideration petition and rulemaking comments. The company argues that it is arbitrary that EPA has not established greenhouse gas emission standards for heavy-duty vehicles premised on use of their technology and its fuel. Under such a standard, the GHG level of a vehicle using POP Diesel would be tailpipe emissions adjusted by a factor reflecting the claimed reduction in lifecycle GHG emissions to produce the POP Diesel fuel. See,
The heavy-duty vehicle and engine GHG standards are fuel neutral in that they do not themselves require or assume that a vehicle or engine will be operated on a particular type of fuel. If POP Diesel's technology helps manufacturers reduce tailpipe GHG emissions, then it will have the same opportunities as any other technology that manufacturers will use to meet the standards. Moreover, POP Diesel has not correctly characterized the agencies' consideration of the interaction between the RFS program and the heavy-duty GHG standards. As explained in the final rule, the tailpipe performance measurement of alternative fuels provides sufficient incentives for their use. While the agencies noted that incentives in the RFS pointed to a lack of a need for further incentives, the rule's treatment of alternative fuels was not premised on each alternative fuel being covered by the RFS Standard.
Only where the vehicle or engine technology inherently demands a certain type of fuel do the standards account for that fuel use, by specifying the calculation procedure used to determine tailpipe emissions. This is the case with electric vehicles (EV), plug-in hybrid electric vehicles (PHEV), and hydrogen fuel cell vehicles, where the technology itself necessitates use of electricity rather than petroleum-based fuels.
Even if EPA were to assume that POP Diesel's claim of lifecycle emissions reductions are valid, and considered setting a vehicle emissions standard that assumed or required use of the POP Diesel technology and fuel, POP Diesel admits this would in fact lead to an increase in the actual GHG emissions from the vehicle. The only decrease in emissions would come from the claimed reduction in lifecycle GHG emissions that POP Diesel says would occur with use of their fuel. That would amount to adopting a vehicle emissions standard to promote a vehicle technology that does not reduce but instead increases the GHG emissions of the vehicle. The vehicle emissions standard would take that approach solely as a mechanism to mandate the use of a certain diesel fuel, based on emissions impacts associated with the fuel, not the vehicle. This would dramatically distort the purpose and structure of the
A further reason this heavy-duty rule does not regulate GHG emissions from a lifecycle perspective, or include explicit consideration of plant-based fuels like the one utilized by POP Diesel's technology, is that it would no longer be possible to establish harmonized, performance-based tailpipe GHG emissions standards (EPA) and fuel efficiency standards (NHTSA). As discussed throughout the final rule, close coordination in this first heavy-duty rule enabled EPA and NHTSA to promulgate complementary standards that appropriately allow manufacturers to build one set of vehicles to comply with both agencies' regulations. See,
Finally, the petition maintains that EPA should impose corporate fleet averages for GHG emissions, asserting that EPA did so only for medium-duty engines and vehicles.
Accordingly, because POP Diesel has not stated grounds requiring or justifying reconsideration under section 307(d)(7)(B) EPA is denying its petition.