National Biodiesel Board v. EPA

National Biodiesel Board (NBB) asked the D.C. Circuit Court of Appeals for panel rehearing or rehearing en banc after the court dismissed NBB’s challenge to an EPA decision allowing Argentine biofuel producers to use alternative recordkeeping procedures to show that their products sold in the U.S. complied with Renewable Fuel Standard requirements intended to ensure that biofuel production does not result in land use changes such as deforestation that would exacerbate greenhouse gas emissions. NBB asserted that the court had erroneously characterized EPA’s decision as an “order” rather than as a “rule,” contravening D.C. Circuit precedent, and that EPA’s decision was therefore procedurally defective. NBB also said that the court had mischaracterized aspects of the alternative recordkeeping plan and NBB’s challenges to the plan.

The D.C. Circuit Court of Appeals dismissed a challenge by a U.S. biofuel industry trade association to a U.S. Environmental Protection Agency (EPA) decision allowing Argentine biofuel producers to use alternative recordkeeping procedures to show that their products sold in the U.S. complied with Renewable Fuel Standard requirements intended to ensure that biofuel production does not result in land use changes such as deforestation that would exacerbate greenhouse gas emissions. The D.C. Circuit said that the trade association’s challenge of the 2010 regulations establishing the alternative recordkeeping program was untimely. The D.C. Circuit also concluded that EPA’s authorization of the alternative procedures “comports with agency regulations and rests upon the kind of highly technical judgments to which we owe agencies great deference.”