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Response to Clean Air Taskforce, World Wildlife Fund, National Wildlife 

Federation, and Friends of the Earth’s Petitions for Reconsideration of

The Renewable Fuel Standards (RFS2)

I. Introduction

Changes to the Renewable Fuel Standard Program1 (RFS2) were 

published in the Federal Register on March 26, 2010 and became effective in 

July 2010. On May 24, 2010, Friends of the Earth, World Wildlife Fund, the 

National Wildlife Federation, and the Clean Air Task Force submitted 

petitions for reconsideration of the renewable biomass aggregate compliance 

approach finalized in the RFS2. On the same day, the Clean Air Task force 

also petitioned for reconsideration regarding EPA’s omission of the global 

rebound effect (GRE) from its lifecycle greenhouse gas emissions analyses. 

The petitioners other than CATF requested a stay of the aggregate compliance 

portion of the RFS2 regulations, while CATF requested a stay of the entire 

RFS2 final rule.

This document is EPA’s response to all of these petitions. EPA is 

denying all petitions and all requests for a stay of implementation of the RFS2 

regulations. As discussed below, petitioners have not shown that 

reconsideration is appropriate under Clean Air Act (CAA) section 307(d). 

Based on this determination, we are also denying the petitioners’ request that 

we stay the RFS2 rules pending reconsideration.

II. Standard for Reconsideration

Section 307(d)(7)(B) of the Clean Air Act (CAA) strictly limits 

petitions for reconsideration both in time and scope. It 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 (as provided in subsection (b)). Such reconsideration shall not postpone 

the effectiveness of the rule. The effectiveness of the rule may be stayed 

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75 14670 (March 26, 2010).
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during such reconsideration, however, by the Administrator or the court for a 

period not to exceed three months.”

Thus the requirement to convene a proceeding to reconsider a rule is 

based on the petitioner demonstrating to EPA: (1) that it was impracticable to 

raise the objection during the comment period, or that the grounds for such 

objection arose after the comment period but within the time specified for 

judicial review (i.e., within 60 days after publication of the final rulemaking 

notice in the Federal Register), see CAA section 307(b)(1); and (2) that the 

objection is of central relevance to the outcome of the rule.

As to the first procedural criterion for reconsideration, a petitioner 

must show why the issue could not have been presented during the comment 

period, either because it was impracticable to raise the issue during that time 

or because the grounds for the issue arose after the period for public comment 

(but within 60 days of publication of the final action). Thus, CAA section 

307(d)(7)(B) does not provide a forum to request EPA to reconsider issues 

that actually were raised, or could have been raised, prior to promulgation of 

the final rule.

In EPA's view, an objection is of central relevance to the outcome of 

the rule only if it provides substantial support for the argument that the 

regulation should be revised. See Denial of Petitions to Reconsider 

Endangerment and Cause or Contribute Findings for Greenhouse Gases under 

section 202(a), 75 FR 49556, 49560 (August 13, 2010); Denial of Petition to 

Reconsider, 68 FR 63021 (November 7, 2003), Technical Support Document 

for Prevention of Significant Deterioration (PSD) and Nonattainment New 

Source Review (NSR): Reconsideration at 5 (Oct. 30, 2003) (EPA-456/R-03-

005 ) (available at http://www.epa.gov/nsr/documents/petitionresponses10-30-

03.pdf); Denial of Petition to Reconsider NAAQS for PM, 53 FR 52698, 

52700 (December 29, 1988), citing Denial of Petition to Revise NSPS for 

Stationary Gas Turbines, 45 FR 81653-54 (December 11, 1980), and decisions 

cited therein.

As discussed in this Decision, EPA is denying the petitions because 

they fail to meet these criteria. In all cases, the objections raised in the 

petitions to reconsider were or could have been raised during the comment 

period of the proposed rule. In all cases, the objections are not of central 

relevance to the outcome of the rule because they do not provide substantial 

support for the argument that the Renewable Fuel Standard Program 

regulations should be revised.
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III. Petition to Reconsider Based on the Global Rebound Effect

In order to respond fully to the issues raised in the petition for 

reconsideration regarding the global rebound effect (GRE), we first 

summarize the main comments of the Clean Air Taskforce (CATF or the 

“Petitioner”). Second, we provide a detailed explanation of why EPA is 

denying the petition for reconsideration.

A. Summary of Petitioner’s Principal Arguments

The CATF claimed that the GRE results in significant indirect 

lifecycle greenhouse gas emissions from renewable fuels, and that the 

definition of “lifecycle greenhouse gas emissions” in CAA section 211(o)(1)

required EPA to take the GRE into account in determining the lifecycle GHG

emissions of individual renewable fuels. CATF asserted that the EPA 

“provided no reasonable basis” for disregarding this effect. In addition, the 

CATF claimed they did not have an opportunity to comment on this issue 

based on two factors: (1) EPA created a “reasonable expectation that it would 

address the global rebound effect in its final analysis, making it impracticable 

for Petitioner to comment on the Agency’s (eventual) failure to do so” and (2) 

since “EPA gave no indication of how it would quantify the rebound effect, 

Petitioner could not usefully comment on this analysis.”

Furthermore, the CATF noted that it became aware of a new report 

that quantified the global rebound effect of renewable fuels. This report, 

entitled “Renewable Fuel and the Global Rebound Effect”, was written by Dr. 

Steven Stoft of the Global Energy Policy Center (May 19, 2010). Since the 

report was completed after the close of the RFS2 comment period, the CATF 

asserted that it was “impracticable for Petitioners to raise its objections during 

the comment period because the grounds for doing so arose after the close of 

the comment period.” As a result of its concerns, the CATF requested that 

EPA stay the rule and “convene a proceeding to reconsider its rule in light of 

its failure to properly account for the global rebound effect.”

The Stoft report attempts to provide various imputed values of the 

global rebound effect from both EPA’s own RFS2 analysis and from a variety 

of other studies from governmental, quasi-governmental and private research 

institutions such as the U.S. Department of Energy, Wharton Economic 

Forecasting Associates, the Electric Research Power Institute, MIT and the 

International Energy Agency. Dr. Stoft claims that the imputed values of the 

global “rebound” effect vary in these studies from 29% to 45%. One study 

with high world oil demand growth estimates a global “rebound” effect of 

70%. Using estimates of oil market parameters provided in the background 

documentation by Oak Ridge National Laboratory for the Energy Security 
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Analysis for the RFS2, Dr. Stoft estimated a global rebound effect of roughly 

32%.

In its petition to the agency the CATF assumes that application of the 

32% rebound effect described in the Stoft paper to the RFS2 analyses would 

result in a comparable percent change in calculated GHG emissions for the 

different fuels analyzed. So, for example, soybean biodiesel that was 

determined to have a 57% reduction in GHG emissions compared to the 

baseline petroleum fuel would actually have only a 25% reduction. This type 

of adjustment would cause most of the fuels considered as part of the RFS2 

final rule to not meet lifecycle GHG reduction thresholds specified in the Act.

B. EPA Response to the CATF Petition to Include the Global 

Rebound Effect

i. Background

As part of the notice of proposed rulemaking (NPRM) for the RFS2, 

EPA qualitatively discussed and solicited comments on a number of 

petroleum fuel and energy sector indirect effects that could result from the 

RFS2 program. In the NPRM and Draft Regulatory Impact Analysis (DRIA), 

EPA described the “international oil takeback effect” as the phenomenon that 

may occur if the world price of oil falls in response to lower U.S. demand for 

oil, leading to a potential increase in oil use outside the U.S.2 EPA also 

described a “rebound effect” expected to occur in the U.S. where the increased 

price of transportation fuel resulting from RFS2 would impact domestic 

demand for oil.3 As described in the DRIA, these effects work together to 

influence the overall change in global oil demand.4 Although EPA did not use 

the term “global rebound effect”, the global rebound effect is the sum of the 

international takeback effect (i.e., the impact on non-U.S. oil demand) and the 

rebound effect (impact on domestic oil demand) which were described in the 

NPRM and DRIA. EPA discussed these effects in three different contexts in 

the NPRM and DRIA: deriving the 2005 petroleum baseline; calculating 

lifecycle assessments for biofuels; and determining the costs and benefits of 

the proposed rule. In each context EPA made clear that the proposal did not

include indirect energy sector impacts such as the international oil takeback 

effect or the rebound effect, and solicited comment on this omission and on 

ways that the effects could be included.

For the petroleum baseline, EPA described in the NPRM how the 

statute specifies use of a 2005 average for purposes of assessing biofuel 

 2 74 FR 25092-93; DRIA at 316-317. 3 Id.

4 DRIA at 317. 
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compliance with GHG reduction thresholds, and that EPA was precluded by 

the statute from conducting the type of “marginal” analysis that would allow 

incorporation of indirect effects such as the international oil takeback effect in 

its assessment of the baseline. Recognizing this limitation, we solicited 

“....comment on whether – strictly for purposes of assessing the benefits of 

the rule (and not for the purposes of determining whether certain renewable 

fuel pathways meet the GHG reduction thresholds set forth in EISA), we 

should assess benefits [of the rule] on a marginal displacement approach and, 

if so, what assumptions we should use for the marginal displacements.” 5

 

For the renewable fuel GHG assessments, we also discussed secondary 

impacts such as the international oil takeback effect and the rebound effect.

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We explained in the NPRM that our proposed GHG assessments did not 

include such analyses, and we invited comment on how best to assess these 

potential impacts for the final rule.7

For our proposed assessment of costs and benefits in the NPRM, we 

explained the difficulty of capturing the impact of the international oil 

takeback effect and the domestic rebound effect due in part to different 

country-specific taxation and subsidy policies and possible future changes in 

those policies. We stated, however that we thought the effects “important to 

capture” and stated that we were “exploring methodologies for doing so.” We 

specifically solicited comment on how to account for these effects.8

In response to its proposal, EPA did not receive any substantive 

comments related to the international takeback or global rebound effects, 

including no comments on the option described in the NPRM of including

such effects through a marginal analysis in assessing the benefits of the rule 

but specifically excluding them from GHG threshold determinations. 

However, EPA received a number of comments on whether it was generally 

appropriate to include secondary or indirect petroleum fuel and energy sector

impacts in the petroleum baseline determination. The CATF provided the 

following statement in its comments: “Second, we are also supportive of

including all direct emissions and indirect emissions that are shown to be 

significant in the baseline for gasoline and diesel fuel.”9

 5 74 FR at 25040 (col 2-3).

Several other 

commenters highlighted the fact that we include “direct” and certain

“indirect” emissions for renewable fuels but only “direct” emissions for 

petroleum fuel. The main concern was that by not including “indirect” 

emissions of petroleum fuels in the petroleum baseline we were 

underestimating their impacts. If baseline emissions were higher as a result of 

6 DRIA at 317. 

7 74 FR 25040-41. 8 74 FR at 25092-93. 9 See EPA docket number EPA-HQ-OAR-2005-0161-2129.1, dated September 25, 2009.
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including indirect petroleum sector effects in our analysis it would increase 

the perceived benefits of using renewable fuels and displacing petroleum 

fuels. One commenter also believed that EPA should credit renewable fuels 

with an indirect “avoidance credit” for mitigating petroleum indirect effects.

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The avoidance credit for the renewable fuel, according to the commenter,

would be based on renewable fuels displacing a marginal crude source (for 

example, tar sands, oil shale or coal-to-liquids) that would have higher GHG 

impacts than the 2005 baseline petroleum crude considered in establishing the 

2005 baseline. Again the idea was that ------including the indirect emissions 

(which would be related to petroleum sector impacts) associated with 

petroleum fuel in the comparison of renewable fuels to baseline fuels would 

show larger GHG emissions reductions for renewable fuels.

EPA did not receive any comments suggesting, as CATF now does in 

its petition, that the renewable fuels assessments EPA proposed for purposes 

of GHG threshold determinations were inadequate because EPA had not 

included the GRE in its renewable fuel GHG threshold determinations.

In the final rulemaking (FRM), EPA determined that it was not 

appropriate to incorporate any secondary or indirect petroleum impacts into its 

GHG lifecycle analysis of the petroleum baseline. EPA based this decision on 

its interpretation of the definition of the petroleum baseline.11 Similarly, EPA 

determined in the FRM that adding the avoidance credit to the GHG estimates 

of the renewable fuels would also be inappropriate.12 EPA’s final lifecycle 

GHG analyses for renewable fuels, like the proposed determinations, also 

omitted indirect energy sector impacts such as the GRE.

ii. CATF had ample opportunity to raise its concerns 

regarding the GRE during the comment period, but 

failed to do so

EPA disagrees that CATF did not have a reasonable opportunity to 

comment on EPA’s omission of the global rebound/international takeback 

effect in its lifecycle GHG assessments for renewable fuels. All of the 

proposed lifecycle GHG assessments and GHG threshold determinations 

described in the NPRM were calculated without considering these effects. As 

noted above, the omission of these effects from the calculations was explicitly 

described in the preamble to the NPRM, and EPA specifically solicited 

comment on the option of including these types of indirect energy sector

effects in its assessment of the costs, benefits and GHG impacts of the rule.

 10 See EPA docket number EPA-HQ-OAR-2005-0161-2367.1, dated September 25, 2009. 11 See 75 FR at 14784. 12 See RFS2 Summary and Analysis of Comments, pages 7-34 and 7-35. 

http://www.epa.gov/otaq/renewablefuels/420r10003.pdf 
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The global rebound/international takeback effect was fully explained in both 

the NPRM and the DRIA. Thus, the Petitioner was clearly on notice of the 

issue and the possibility that EPA would exclude the effects from its final 

GHG threshold determinations, yet failed to submit comments raising the 

issues it now raises in its petition. Although EPA indicated in the NPRM that 

it intended to consider these effects further, and to consider the possibility of 

incorporating the effects in its analyses, EPA also indicated the difficulties it 

faced in doing so and specifically solicited comment to facilitate EPA’s work 

in this area. However, with the exception of comments directed to the 

calculation of the 2005 petroleum baseline, no such comments were submitted 

by Petitioner or any other party. Based on all of these facts, EPA believes the 

claims and arguments included in the CATF petition could and should have 

been raised during the comment period.

iii. CATF has not asserted grounds for its objection that 

arose only after the public comment period

EPA also disagrees with the CATF assertion that the release of the 

October 1, 2009 analysis by Stoft represents grounds for its objection that 

arose only after the close of the comment period for the RFS2 Rule. The 

global rebound effect is not a new concept and, indeed, EPA itself described 

the effect (using somewhat different terminology) in the NPRM. Although 

the Stoft paper takes the position that the GRE should be accounted for in the 

context of California’s low carbon fuel standard, the arguments that Stoft 

makes are all based on facts and theories that were known during the 

comment period, and which Stoft or CATF could have raised to EPA in timely 

comments on the NPRM. Thus, CATF has failed to demonstrate why it was 

impractical for it to raise its concerns regarding the GRE during the comment 

period, and has failed to show that its objections are based on grounds that 

arose only after the close of the comment period. For these reasons alone, the 

component of the CATF petition relating to the GRE is appropriately denied.

In addition, as explained below, petitioners also fail to raise an issue of central 

relevance to the outcome of the rule, since EPA rejects CATF’s proposition 

that the GRE should be included in EPA’s lifecycle greenhouse gas 

assessments for renewable fuels.

iv. CATF’s Assertions Regarding the GRE are Not of 

Central Relevance to the Outcome of the RFS2 Rule

EPA has prepared its lifecycle GHG assessments of renewable fuels 

for use in determining whether those fuels meet the GHG reduction thresholds 

specified in CAA section 211(o)(1) for the four types of renewable fuels. In

each case, EPA is to compare the lifecycle GHG emissions of a renewable 

fuel to the “baseline lifecycle greenhouse gas emissions” to determine if the 

requisite GHG reductions are achieved. EPA has considered both the 
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definition of “lifecycle greenhouse gas emissions” and the definition of 

“baseline lifecycle greenhouse gas emissions” to identify the appropriate 

range of emissions impacts to include in its assessments. In its final RFS2 

assessments, EPA excluded any indirect emissions related to the petroleum 

sector, and it applied this exclusion consistently in both its assessments of 

baseline fuels and renewable fuels. CATF now petitions us to include indirect 

emissions related to petroleum sector impacts, based on the definition of 

lifecycle greenhouse gas emissions, but neglecting the impact of the statutory 

definition of baseline lifecycle greenhouse gas emissions.

CAA section 211(o)(1) includes a specific definition of the petroleum 

fuel baseline that needs to be used for comparison purposes to renewable fuels 

in the GHG emissions threshold determinations. 

The term ‘baseline lifecycle greenhouse gas emissions’ means the 

average lifecycle greenhouse gas emissions, as determined by the 

Administrator, after notice and opportunity for comment, for gasoline 

or diesel (whichever is being replaced by the renewable fuel) sold or 

distributed as transportation fuel in 2005.

The RFS2 provisions require a GHG threshold determination that 

compares the lifecycle GHG results of renewable fuels to the lifecycle GHG 

results of the petroleum fuel baseline, using either a gasoline or a diesel fuel 

baseline, depending on which petroleum-based fuel the renewable fuel 

replaces. The comparison is to see if the renewable fuel meets the required

minimum percentage reduction in GHG emissions compared to the baseline, 

to qualify as either renewable fuel, advanced renewable fuel, biomass based 

diesel, or cellulosic renewable fuel.

The CAA’s definition of lifecycle GHG emissions explicitly mentions 

indirect emissions as part of the emissions that EPA includes in its lifecycle 

GHG assessments.

The term ‘lifecycle greenhouse gas emissions’ means the aggregate 

quantity of greenhouse gas emissions (including direct emissions and 

significant indirect emissions such as significant emissions from land 

use changes), as determined by the Administrator, related to the full 

fuel lifecycle, including all stages of fuel and feedstock production and 

distribution, from feedstock generation or extraction through the 

distribution and delivery and use of the finished fuel to the ultimate 

consumer, where the mass values for all greenhouse gases are 

adjusted to account for their relative global warming potential.

These two definitions need to be reconciled when determining how to 

account for GHG emissions, including petroleum sector emissions, when 
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assessing and comparing the lifecycle GHG emissions of the renewable fuel

and the petroleum baseline. EPA has taken a pragmatic approach in 

determining the petroleum baseline – interpreting the definition of baseline 

petroleum GHG emissions to include as many of the types of emissions 

referenced in the definition of “lifecycle greenhouse gas emissions” as it is 

practical and possible to incorporate in its analyses while also being consistent 

with the statutory directive that the baseline be determined by reference to 

average 2005 petroleum fuels.

The baseline methodology adopted by EPA is consistent with how 

EPA interpreted the definition of the petroleum baseline in the final RFS2 

rulemaking. EPA interpreted this definition as precluding an assessment of 

indirect GHG emissions from the marginal barrel of crude oil expected to be 

produced in the future during CAA implementation, given the explicit use of 

the words “average” and “2005”.13 Indirect effects of a fuel arise because of a 

change in volume, and can only be calculated by analyzing the emissions 

impacts of a marginal fuel, based on comparing alternative volume scenarios. 

The indirect effects identified through such an analysis reflect the emissions 

impacts of the change in fuel volume, and reflect the marginal fuel associated

with this change in fuel volume. Indirect effects do not reflect the emissions 

of the average fuel, and do not reflect a single specified fuel volume that is not 

changing, such as the 2005 gasoline and diesel volume. EPA interpreted the 

CAA reference to average 2005 petroleum fuels in the definition of “baseline 

lifecycle greenhouse gas emissions” as effectively precluding the inclusion of 

indirect petroleum sector emissions when determining the lifecycle GHG 

emissions of the petroleum baseline. Thus, even if there were indirect 

petroleum fuel and energy sector emissions attributable to baseline fuels, EPA 

determined that the reference to the average 2005 fuels in the definition of 

baseline lifecycle GHG emissions precluded their inclusion in the assessment. 

In effect, EPA has interpreted the term “baseline lifecycle greenhouse 

gas emissions” to include all of the types of emissions that are listed in the 

separate definition of “lifecycle greenhouse gas emissions” that are not 

inconsistent with the specific reference in the definition of “baseline lifecycle 

GHG emissions” to 2005 average fuels. This has led us to exclude indirect 

petroleum sector impacts. As discussed below, this also has a critical limiting

effect on the types of emissions that can reasonably be included in EPA’s 

assessment of renewable fuel lifecycle GHG emissions and comparison of the 

renewable fuel to the baseline.

Having determined that the CAA precluded the incorporation of 

indirect petroleum sector emissions in its assessment of the petroleum 

baseline, EPA based its GHG baseline assessment solely on a direct 

 13 75 FR at 14784.
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accounting of the emissions linked to the product by material, energy flows or 

services following supply-chain logic.14 Thus, for the RFS2 FRM, EPA 

accounted for only the direct petroleum fuel and energy sector emissions 

associated with petroleum products in establishing the baseline lifecycle GHG 

emissions. EPA did not assess or include any potential GRE or other indirect 

effects from the petroleum fuel and energy sector in the baseline fuel

emissions calculations.

Unlike the baseline fuels, the CAA does not specify that the lifecycle 

GHG emissions of renewable fuels are tied to a specific year or that they 

should be based on an average of any specified volumes. EPA determined 

that it would include both direct and indirect impacts in the lifecycle GHG 

emissions of producing and using renewable fuels to the extent feasible and 

appropriate. As noted above, assessing indirect effects requires using a 

marginal analysis that compares two different volume scenarios.15 EPA 

analyzed the impact of a change in renewable fuel volumes in order to assess 

and include marginal or indirect impacts. For both the proposed and final rule 

EPA used a marginal analysis that compared two future renewable fuel 

volume scenarios. This allowed EPA to assess the indirect effects of 

increasing the production of renewable fuels and take into account market 

adjustments of the incremental volume change being analyzed in producing 

renewable fuels. This assessment included all direct and indirect emissions 

from the agricultural sector and also included all direct emissions from the 

petroleum fuel and energy sector. The direct emissions from the agriculture 

sector included GHG emissions such as those from the use of the fertilizer to 

grow the feedstock. The indirect emissions in the agriculture sector included 

emissions from indirect effects such as changes in the size of livestock herds 

or land use changes resulting from the market impact of using feedstocks for 

fuel as compared to other uses. The direct petroleum fuel and energy sector

emissions included emissions such as the energy used to operate the plant that 

processes the feedstock into the fuel. For the purposes of our lifecycle 

analysis of renewable fuels, EPA compared the differences in total calculated 

GHG emissions of renewable fuels between two future scenarios in 2022, one 

with business as usual renewable fuel volumes and one with higher renewable 

fuel volumes. The results of this renewable fuel analysis were then compared 

to the 2005 average petroleum baseline to make the required GHG emissions 

threshold determination.

 14 This methodology is commonly referred to as an Attributional approach in lifecycle 

assessment terms. 

15 This methodology is commonly referred to as a Consequential analysis approach in 

lifecycle assessment terms. See Draft Regulatory Impact Analysis (DRIA) page 289 (pdf 

version) and Final Regulatory Impact Analysis (RIA) page 301 (pdf version) for more 

information.
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The analytical approach that EPA established in the final RFS2 is 

consistent with the definitions of baseline lifecycle GHG emissions and 

lifecycle GHG emissions provided by Congress in CAA section 211(o). The 

approach provides values that are analytically sound and a process that is 

workable and implementable. As described in more detail below, attempting 

to include indirect petroleum fuel and energy sector emissions in the analysis 

of the renewable fuels would result in an analytically flawed and unworkable 

methodology that is not consistent with the use of the baseline petroleum fuel 

as defined in the CAA. EPA has determined that this is the case for including 

just the GRE, as CATF proposes, or including all indirect petroleum fuel and 

energy sector emissions as part of the lifecycle GHG estimates of each 

renewable fuel.

In their petition, the CATF suggests a methodology developed by 

Stephen Stoft for simply “adding” the global rebound effect to the total 

petroleum fuel and energy sector direct emissions associated with each 

individual renewable fuel when determining the lifecycle emissions for that 

renewable fuel. However, it would be technically inappropriate to incorporate

just the global rebound effect into a renewable fuel GHG lifecycle assessment

without also including other indirect petroleum fuel and energy sector impacts 

in such analyses. CATF proposes “cherry picking” a single indirect effect 

(which it presumes will be a disbenefit) for inclusion in the renewable fuel

analyses. CATF does not provide any justification for doing so. This 

approach would certainly be analytically flawed, and this approach should be 

rejected on this ground alone. GRE is only one of the various energy market 

interactions and indirect petroleum fuel and energy sector impacts that are 

potentially associated with the increased volumes of each renewable fuel. It is 

not technically appropriate to consider just one potential indirect effect and 

ignore all others. The GRE addresses only one part of the petroleum fuel and 

energy sector impact, and these impacts are only one component of the 

complex demand response to a change in world oil prices.

As noted above, indirect effects are assessed by comparing two 

volume scenarios. Assessing indirect effects such as the GRE would therefore

require a scenario-based analysis of the entire petroleum fuel and energy 

sector. It would be necessary to assess and include all of the other supply and 

demand interactions to determine a complete picture of net indirect petroleum 

fuel and energy sector impacts on emissions.

On the demand side of such an analysis, oil demand varies 

significantly by country and by use, therefore regional demand differences 

would need to be reflected in a full indirect petroleum fuel and energy sector

analysis. For example, oil demand response is very different for industrial 

purposes compared to transportation purposes. Furthermore, understanding 

how a change in crude oil prices filters down to end user gasoline and diesel 
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prices is also an important aspect of an indirect petroleum fuel and energy 

sector analysis. However, these pump price effects are not uniformly or 

precisely dependant on a specific change in crude oil price. How the price of 

renewable fuels impacts the blended fuel (i.e., renewable fuel plus petroleum 

component) prices at the pump would need to be taken into account as well as 

how consumers would respond to any such price changes (with consumer 

response likely changing between the short term and longer term). In 

addition, how different countries adjust their taxes in response to a decline in 

world oil prices would also need to be incorporated into an indirect energy 

sector analysis. For example, to the extent that developing countries might 

reduce subsidies in the face of lower world oil prices, those countries may not 

see a change in demand.

On the supply side, a scenario-based analysis that included the 

petroleum fuel and energy sector within the system boundaries (i.e., as part of 

the scenario-based lifecycle GHG emissions estimates for renewable fuels) 

would also need to explicitly account for where the marginal barrel of oil 

would be produced. Depending on the type of crude impacted, different 

emission factors would be used to calculate the resulting change in GHG 

emissions. Similarly, modeling how OPEC would respond to a decline in 

world oil demand is also critical to a full scenario-based analysis. It is 

conceivable that oil producing countries could reduce the supply of oil to 

completely offset any reduced demand due to renewable fuels, in which case 

there would be no global rebound effect as CATF hypothesizes.

Finally, the change in all petroleum fuel and energy sector production 

and prices would also need to be included in a scenario-based analysis, not 

just the petroleum sector. One would need to know what fuels are being 

displaced from the increasing use of oil worldwide in order to calculate the 

GHG impacts. For example, if a decline in the world oil price causes an 

increase in oil use in China, India, or another country’s industrial sector, this 

increase in oil consumption may displace natural gas usage. Alternatively, if 

the increased oil use results in a decrease in coal used to produce electricity, 

this increase in oil use could have significantly different GHG emissions 

impacts. Furthermore, the full interaction between the agricultural sector and 

the petroleum fuel and energy sector would need to be reflected (e.g., how 

changes in energy sector prices impact agricultural production).

Limiting the analysis to just the global rebound effect, as suggested by 

the CATF, would not be analytically sound, and would not reflect the real 

impact on GHG emissions. Looking at just the global rebound effect by itself 

fails to account for these other indirect effects. Without assessing all of the 

effects, it is not possible to know with confidence what the magnitude of any 

indirect emissions would be, or even whether there would directionally be a

net increase or a decrease in emissions.
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The only way to consider the indirect impacts of renewable fuel on the 

petroleum fuel and energy sector would be to undertake an expanded 

scenario-based analysis. As described above, this type of analysis looks at 

differences in total GHG emissions in both the transportation and energy 

sector between two future volume scenarios—one with a certain increased 

renewable fuel volume and one without the volume increase. For each 

individual renewable fuel, EPA would need to analyze the incremental GHG 

emission impacts of increasing the volume of that fuel on the transportation 

and energy sectors, including all resulting indirect and secondary impacts, 

including the global rebound effect, and the additional supply and demand 

responses described above.

The result of this kind of analysis is a comparison of total emissions 

for each of the two volume scenarios, that each include renewable and 

petroleum fuel use. The comparison between the scenarios shows the 

differences in total GHG emissions between the two scenarios. By its nature 

this comparison is not a comparison of the renewable fuels to a 2005 baseline 

that identifies a percent difference in emissions between the renewable fuel

and the average 2005 baseline. It is a comparison of renewable fuels and 

future petroleum under one scenario to renewable fuels and future petroleum

under another scenario. This kind of scenario analysis is thus not consistent 

with CAA section 211(o)’s requirement of a comparison to the average 2005 

gasoline and diesel baselines.

In addition, this kind of comparison includes the change in emissions 

associated with the replacement of some volume of marginal petroleum fuel 

(gasoline or diesel) by a volume of renewable fuel, and the indirect effects that 

result from this replacement of the petroleum fuel. The scenarios would 

project what gasoline or diesel would be replaced by the renewable fuel, and a 

comparison of the scenarios would include a comparison of the emissions of 

the renewable fuel and the petroleum it directly replaces (e.g., all based on a 

2022 analysis) as one part of the overall comparison of the scenarios. This 

type of scenario-based comparison therefore would also ignore the 

Congressional mandate that the emissions of the renewable fuel be compared 

to the emissions of a baseline fuel designated as a historic, average 2005 

petroleum fuel. Instead, under this kind of analysis the emissions of the

renewable fuel are compared to the emissions of the future marginal 

petroleum fuel it replaces. Although this kind of analysis could be used to 

attempt to assess indirect effects of increasing renewable fuel volumes on the 

petroleum fuel and energy sectors, for the reasons discussed above it could not

be used as a way to incorporate global rebound effects into just the renewable 

fuels side of the lifecycle analysis.
14

Furthermore, adjustments that attempt to take into account the need to 

compare the renewable fuel to an average 2005 baseline petroleum fuel as

defined by Congress would be analytically flawed and unworkable.

Domestic 

Ag Sector

International 

Ag Sector

Food / Other 

Markets

Fuel 

Processing Biofuel Use

2022 Base Case

Domestic 

Transportation 

Sector

International 

Transportation 

Sector

World Crude 

Oil 

Extraction

World Crude 

Oil Refining

World 

Petroleum 

Fuel Use

Co-Product / 

Other 

Markets

Domestic 

Ag Sector

International 

Ag Sector

Food / Other 

Markets

Fuel 

Processing Biofuel Use

2022 Increased Biofuel Case

Domestic 

Transportation 

Sector

International 

Transportation 

Sector

World Crude 

Oil 

Extraction

World Crude 

Oil Refining

World 

Petroleum 

Fuel Use

Co-Product / 

Other 

Markets

Compared To

2005 Average 

Crude Oil 

Extraction

2005 Average 

Crude Oil 

Refining

2005 Average 

Petroleum Fuel 

Use

2005 Baseline 

Petroleum Fuels 

GHG Emissions

Compared 

To

“Double 

counting” 

emissions

Figure 1. Scenario-Based Petroleum Fuel and Energy Sector Analysis 

Plus Comparison to 2005 Baseline

 

For example, one could attempt to take the difference in GHG 

emissions between the two volume scenarios discussed above and add an 

additional step comparing the net emissions of the two scenarios to the 2005 

baseline lifecycle GHG emissions. However, such an approach would count 

impacts such as the crude oil extraction and refining emissions twice – once as 

part of the marginal analysis in the 2022 comparison of different volume 

scenarios and then again when comparing this result against the 2005 baseline. 

(See Figure 1) The fact that the marginal petroleum analysis is based on 2022 

impacts while the petroleum average baseline is calculated for 2005 only 

exacerbates the technical inconsistency in accounting for crude oil extraction, 

refining and combustion.16

 16 As described in our final RFS2 rule, EPA’s indirect analysis focuses on 2022 for two main 

reasons. The first reason is that it is appropriate to select a single year to analyze. The 

lifecycle GHG analysis is based on the use of various economic models, both domestic and 

international. These models estimate economic impacts on relevant sectors over a multi-year 
15

It is also not feasible to correct for this double counting by trying to 

identify the direct and the indirect petroleum fuel and energy sector emissions 

and subtracting out the direct petroleum fuel and energy sector emissions from 

such a marginal analysis of renewable fuel impacts. It is impossible to 

differentiate the direct and indirect emissions impacts from a marginal

analysis like this. The volume of petroleum produced and used and the direct 

emissions from crude oil extraction, refining and combustion of this volume 

of petroleum are dependent on the indirect impacts elsewhere in the petroleum 

fuel and energy sector. It is not technically possible to isolate the direct and 

indirect emissions in such a marginal analysis. Any attempt to estimate and 

separate the direct impacts from the indirect petroleum impacts in the 

marginal analysis would at best be an arbitrary estimate and not derived 

analytically.

Finally, these problems could not be avoided by trying to use the 2005 

average baseline values for gasoline and diesel as part of the marginal analysis 

itself, instead of the future petroleum fuels projected in the volume scenarios. 

This would also be analytically unsound and unworkable.

In summary, petitioners’ suggestion to just add a GRE effect to the 

current lifecycle analysis of the renewable fuels is analytically flawed as it 

addresses only one possible indirect effect and ignores all others. 

Conceptually, the way to assess and determine potential indirect effects 

outside the agriculture sector is to compare two future volumes scenarios that 

each include the renewable fuel and the petroleum fuel and energy sectors. 

However the result of this comparison is a total amount of net GHG emissions 

between the two volume scenarios. The result is not consistent with CAA 

section 211(o) as it does not include any comparison to the average 2005 

baseline petroleum fuel, and it includes a comparison of the renewable fuel to 

the future marginal petroleum fuel it is projected to replace. Various attempts 

can be made to try and address these failures, such as adding a step that 

compares the results to the petroleum baseline, or distorting the results of the 

volume scenario analysis to attempt to avoid double counting of emissions or 

 

time period, and rely on assumptions or projections as to the various renewable fuel volumes 

out into the future. The results are dependent in part on the renewable fuel volumes that are 

used, and the modeling requires a stable prediction of the specific volumes and types of fuels 

used from year to year. This reflects the current status of the models available to perform this 

analysis. If there were changes in volumes in interim years in the modeling, this would have 

impacts on the later years of the modeling. The lack of a stable projection or assumption in 

the year to year fuel volumes would make it impossible to accurately model the predicted

lifecycle GHG reductions for the different fuels. Analytically it would not be possible to 

model in advance the GHG impacts and make lifecycle determinations on renewable fuels. 

Second, 2022 is the year when all of the renewable fuel requirements of EISA are fully 

phased-in. Thus, year 2022 will yield a reasonable time frame for assessing the full impacts of 

the RFS2 program on lifecycle GHG emissions. 
16

avoid comparing the renewable fuel to a future marginal petroleum fuel, but 

all of these attempts are analytically flawed and unworkable, and fail to 

address the inconsistency with the required comparison to an average 2005 

petroleum fuel.

Instead of attempting these kinds of analytical distortions, EPA’s 

RFS2 rule took a much more straightforward and analytically sound approach. 

EPA determined the lifecycle GHG emissions of the baseline fuel by 

analyzing the direct emissions effects associated with the 2005 fuel, on 

average. Indirect effects of the 2005 petroleum fuel were not assessed as this 

would require use of a marginal volume analysis that was inconsistent with 

the required use of an average 2005 fuel. EPA determined the lifecycle 

emissions of the renewable fuels by evaluating the direct and indirect effects

of the increased use of the renewable fuel on emissions in the agricultural

sector. EPA also calculated the direct emissions effects from the energy

sector for the renewable fuel. However EPA did not try to include indirect

effects from the petroleum fuel and energy sector as it could not be done in a 

way that was analytically sound and consistent with the use of the defined

average 2005 petroleum baseline fuel.17 This approach uses a consistent 

analytical approach for both the renewable fuel and the baseline fuel with 

respect to emissions from the agriculture, petroleum fuel, and energy sector, 

and is most consistent with the requirements of section 211(o).

C. Conclusions

Congress’ definition of the baseline GHG emissions against which 

renewable fuels must be compared imposes limits on the kind of analysis EPA 

can do. It limits how EPA determines baseline GHG emissions, and precludes 

inclusion in the baseline of the kind of indirect effects that can only be 

determined using a marginal analysis of alternative volume scenarios. This 

also impacts the kind of analysis of the renewable fuel that can be performed

for purposes of comparing the renewable fuel to the baseline petroleum fuel.

EPA is not aware of an analytically sound way to include potential

marginal petroleum fuel and energy sector effects in the lifecycle analysis of 

the renewable fuels, and then compare the result to a historic average 2005 

petroleum baseline, as required by Congress. Instead of a flawed and 

unworkable methodology that is much more complicated and no more robust, 

EPA chose to use the same analytical system boundary in analyzing the 

petroleum fuel and energy sector, for both the renewable fuel and baseline 

fuel analyses. This allowed EPA to compare the renewable fuels direct 

energy sector emissions and direct and significant indirect agricultural sector 

 17 There are no direct or indirect agricultural sector emissions associated with the baseline 

petroleum fuel.
17

emissions to the direct energy sector emissions of the 2005 average petroleum 

baseline emissions. This approach is superior to the alternatives because it 

leads to a comparison between similarly-analyzed fuels, including those 

factors associated with renewable fuel and baseline fuel which we can 

reasonably account for while honoring the statutory directive to calculate and 

use for comparison a baseline defined in terms of 2005 average fuels.

Any attempt at this time to include an additional factor for global 

rebound effects as part of the lifecycle analysis of the renewable fuels would 

require a flawed analysis and various arbitrary adjustments not based on 

sound science and clearly would not reflect the total energy sector impacts on 

which global rebound is only one part. Therefore, EPA has concluded that the 

most technically sound and appropriate way of calculating the lifecycle GHG 

emissions of both the baseline and renewable fuels is to exclude all indirect 

energy sector impacts associated with the future displacement of petroleum 

fuel by the renewable fuel.

Based on all of the above, EPA has concluded that the CATF 

comments and arguments are not of central relevance to the outcome of the 

rulemaking as they do not provide substantial support for the argument that 

the final rule should be revised. 

D. Denial of Petition to Reconsider and Request for 

Administrative Stay

EPA is therefore denying the Petition to Reconsider on the issue of the 

GRE, as the criteria for reconsideration under section 307(d) have not been 

met. Since we are denying the petition to reconsider, we are also denying the 

request for an administrative stay pending reconsideration.

IV. Petitions to Reconsider Aggregate Compliance Approach 

A. EPA response to petitions for reconsideration of the aggregate 

compliance approach.

i. Background

EISA changed the definition of “renewable fuel” in the Clean Air Act 

Section 211(o) renewable fuels program to specify that renewable fuels must 

be “produced from renewable biomass.”18

 18 CAA 211(o)(1)(J). 

 The term “renewable biomass” is 

defined in the Act to include seven categories of biomass feedstock, including 

“planted crops and crop residue harvested from agricultural land cleared or 

cultivated at any time prior to the enactment of [EISA] that is either actively 
18

managed or fallow, and nonforested.”19 EPA discussed this new renewable 

biomass requirement at length in the NPRM for the RFS2 rule, and solicited 

comment on how the new provision should be interpreted and implemented.20

In a section of the NPRM addressing the renewable biomass 

requirement for domestic renewable fuel, EPA identified a number of possible 

implementation approaches, and solicited comment on how the various 

options could be combined or altered with possible superior approaches.21 

The alternatives discussed in the NPRM included : (1) requiring that 

renewable fuel producers obtain specific types of documentation from their 

feedstock suppliers that would be used to demonstrate to EPA that their 

feedstocks satisfy the definition of renewable biomass; (2) requiring that 

renewable fuel producers keep records sufficient to support their claim that 

feedstocks qualify as renewable biomass, without specifying in the regulations 

the types of required records; (3) establishment of a chain-of-custody tracking 

system from feedstock producer to renewable fuel producer, resulting in 

tracking records being made available to fuel producers that would enable 

them to verify feedstock origin; (4) a “quality assurance program” whereby an 

independent third party would inspect a renewable fuel producer’s facility and 

any intermediary feedstock supplier’s facility to investigate compliance with 

the renewable biomass requirement; (5) an industry-wide quality assurance 

plan involving all renewable fuel producers and feedstock producers and 

suppliers that would be carried out by an independent surveyor funded by 

industry; (6) an EPA-developed website with an interactive map that would 

allow renewable feedstock producers to trace the boundaries of their property 

and create an electronic file with information regarding the land where 

feedstocks are produced, and which could be accessed by renewable fuel 

producers to determine if feedstocks they intend to purchase qualify as 

renewable biomass; (7) establishment of a baseline level of production of 

biofuel feedstocks such that reporting and recordkeeping requirements would 

be triggered only when the baseline production levels of feedstocks used for 

biofuels were exceeded.22

In the context of the first two possible approaches, we solicited 

comment on the feasibility of EPA using publicly available USDA data “to 

keep track of significant land use changes in the U.S. . . and to note general 

increases in feedstock supplier productivity that might signal cultivation of 

new agricultural land for renewable fuel feedstock production.”

 

23

 19 CAA 211(o)(1)(I). 

 

20 74 Fed.Reg. 24904, 24930-24941 (May 26, 2009). 21 Id. at 24940. 22 Id. at 24938-24941. 

23 Id. at 24939.
19

For the final rule, EPA responded to public comments and input from 

USDA to establish a blend of two of the concepts identified in the NPRM. 

Instead of establishing baseline levels of feedstock production such that 

individual reporting and recordkeeping would only be triggered when 

feedstock production levels exceeded the baseline, EPA instead established a 

baseline level of qualifying domestic agricultural land that qualifies under 

EISA for the production of crop and crop residue, and only requires individual 

recordkeeping and reporting if that baseline level of agricultural land is found 

through an annual EPA determination to have been exceeded. As noted 

above, EPA had identified this aggregate land approach in the NPRM as a 

possible supplemental investigatory tool for verifying compliance with 

renewable biomass requirements, but determined in the final rule that it 

provided a reasonable implementation approach standing alone, and was 

superior to the feedstock baseline approach.

The proposed aggregate feedstock approach was modified for several 

reasons. Under an aggregate approach that establishes a baseline level of 

feedstock production, feedstock volumes would have to be feedstock specific, 

which poses a number of logistical problems for an aggregate approach. It 

would be difficult to determine whether an exceedance of a feedstock baseline 

represented simply an increase in yield or the growth of the feedstock on 

existing agricultural lands that had previously been devoted to other 

agricultural purposes. By changing the focus of the aggregate approach to the 

number of acres used for agricultural purposes, EPA was able to shift the 

inquiry more closely to the issue in question – whether new lands may be 

introduced for growth of biofuel feedstocks. The approach allows increases in 

yields and shifting in acres of land devoted to growing various agricultural 

products without presenting a “false positive” result. 

ii. Petitioners should have raised their concerns regarding 

the aggregate compliance approach during the 

comment period, but failed to do so

Petitioners assert that the aggregate compliance approach, as finalized, 

differed substantially from any of the approaches upon which EPA sought 

comment in the proposed RFS2 rule. However, EPA discussed and solicited 

comment in the proposed RFS2 rule on several different approaches to 

implementing the renewable biomass provisions, and specifically solicited 

comment on ways that the options could be combined to form the most 

feasible approach. Two of the concepts described in the NPRM were the basis 

for the final aggregate compliance approach. First, EPA solicited comment on 

the feasibility of using publicly available USDA data to keep track of 

significant land use changes in the U.S. to determine whether new agricultural 
20

lands were being brought into cultivation.24 EPA also took comment on the 

option of utilizing existing agricultural data to establish a baseline level of 

production of biomass feedstocks such that reporting and recordkeeping 

requirements would only be triggered when the baseline production levels of 

feedstocks used for biofuels were exceeded. The aggregate compliance 

approach combines elements of these two proposals to yield an 

implementation system very similar in effect. The final approach involves 

determining the total baseline number of acres used for agricultural production 

in 2007 that could qualify for the production of renewable biomass under 

EISA, provides for annual determinations of total domestic agricultural land 

in succeeding years, and provides that as long as the total in any given year 

does not exceed baseline levels, that renewable fuel producers using domestic 

crops and crop residue for biofuel production can assume that their feedstock 

satisfies the renewable biomass requirement. 

The final rule reflected comments received on the proposal,25 and was 

a logical outgrowth of it. Petitioners could have commented on EPA’s 

proposed feedstock-based aggregate compliance approach and helped EPA to 

modify it into its final form, but failed to do so. Petitioners’ central objection 

to the final aggregate compliance approach – that it fails to provide a perfect 

guarantee against the use of non-renewable biomass for renewable fuel 

production – could have been raised in the context of the proposed feedstockbased aggregate approach or other proposed approaches, but it never was. 

Similarly, their concern regarding shifts in land use undermining an aggregate 

approach was also relevant in the context of concepts discussed in the 

proposal, but Petitioners did not raise this concern during the comment period. 

Thus, EPA believes that Petitioners’ concerns regarding the aggregate 

compliance approach could and should have been raised during the comment 

period.

iii. Petitioners have not asserted grounds for their 

objections that arose only after the public comment 

period.

Petitioners reference a November 2009 USDA study entitled “Ethanol 

and a Changing Agricultural Landscape” and USDA’s March 31, 2010 release 

of its annual “Prospective Plantings” report as grounds for their objections 

that they claim arose only after the close of the comment period. Petitioners 

note that the first study found that U.S. cropland is expected to expand 1.6% 

 24 Id. 25 See, e.g., EPA-HQ-OAR-2005-0161-2419, EPA-HQ-OAR-2005-0161-2087, EPA-HQOAR-2005-0161-2104 .
21

between 2008 and 2015, including increases in acres devoted to the key 

biofuel feedstocks, corn and soy. Petitioners claim that the study calls into 

question “EPA’s determination that the RFS2 will not result in increased 

cropland expansion ...”26 However, EPA never made such a claim. Rather, 

EPA has asserted that for a number of reasons it believes that the total acres of 

cropland, plus pastureland and CRP land, will not exceed the 2007 baseline. 

EPA acknowledges that there may be increases in cropland acres,27 but 

believes that those additional acres are likely to come from CRP land or 

pastureland. EPA also acknowledges that there may be increases in plantings 

of corn and soy, but believes that such additional acreage will likely come 

from farmers switching crops to grow these commodities instead of growing 

others, such as wheat. Thus, Petitioners have mischaracterized EPA’s 

assertions and appears to have misunderstood the basis of the aggregate 

compliance approach. The referenced USDA study does not present new 

grounds for concern regarding the aggregate compliance approach, so it is 

irrelevant that it was released after the close of the comment period.

Petitioners also cite USDA’s March 31 annual “Prospective Plantings”

report. They note that the report indicates that farmers intend to plant more 

corn and soy than in the past, and that the anticipated soy plantings, if 

realized, could be the largest on record. The report also documents past 

increases in corn and soy production. Petitioners once again say that this 

study undermines “EPA’s assumption that cropland will not increase in 

response to the RFS2.”28 As noted above, EPA does not assume that cropland 

acres will not increase, and an increase in cropland acres is not inconsistent 

with the aggregate compliance approach. Thus, Petitioners have failed to 

identify meaningful grounds for their objections that arose after the close of 

the comment period. 

iv. Petitioners’ assertions regarding the aggregate 

compliance approach are not of central relevance to 

the outcome of the RFS2 rule

Petitioners argue that the aggregate compliance approach is contrary to 

law because it permits violations of the statutory requirement that all eligible 

biofuels be derived from “renewable biomass.” EPA disagrees. We believe 

that an aggregate compliance approach is appropriate for planted crops and 

crop residue from U.S. agricultural land for several reasons. First, based on 

our analysis of USDA data, as well as expected economic incentives for 

feedstock producers, we have high confidence that the aggregate compliance 

 26 See, e.g., CATF Petition at 28

27 See, e.g., RIA at 883.

28 E.g., CATF Petition at 29.
22

approach will ensure that EISA’s renewable biomass provisions related to 

crops and crop residue will be satisfied, as long as the 2007 baseline acreage 

is not exceeded. In the event that the baseline is exceeded, the aggregate 

compliance approach will be discontinued, and renewable fuel producers 

using domestically grown crops and crop residue will need to comply with the 

same individual recordkeeping and reporting requirements as producers using 

other types of feedstocks. EPA acknowledged in the final RFS2 preamble that 

it is possible that under the aggregate compliance approach some of the land 

available under EISA for crop production in 2007 could be retired and other 

land brought into agricultural production without altering the aggregate 

number of acres that are cropland, pastureland and CRP land or causing an 

exceedance of the 2007 baseline. 29 However, we also noted in the preamble 

that we believed that if such shifts were to occur, that they would be in de 

minimis levels, for reasons described in the preamble, regarding which 

Petitioners take issue. As described in more detail below, the arguments 

presented in the petitions, and the additional information cited therein, have 

not led us to alter our assessment. Indeed, additional information provided by 

USDA in the context of their assistance in preparing this petition response 

provides further support for the aggregate compliance approach. EPA thus 

remains satisfied that its approach is well tailored to reasonably implement the 

renewable biomass requirement for domestic crops and crop residues. 

Petitioners first assert that EPA’s acknowledgement that it is possible 

that de minimis land shifts could occur demonstrates that EPA’s rule will not 

ensure that renewable fuel is made with renewable biomass. In response, we 

first note that EPA does not believe it is required under Section 

211(o)(2)(A)(iii) or any other statutory provision to develop compliance 

provisions that would absolutely preclude any potential for non-compliance 

with the renewable biomass provision, regardless of how trivial the potential 

for noncompliance. Thus, the fact that EPA acknowledged a possibility of de 

minimis levels of land shifts under the aggregate compliance approach does 

not mean that the approach is legally deficient. EPA believes that the 

aggregate compliance approach is a common-sense and effective method of 

implementing the renewable biomass requirement in the U.S. that reasonably 

implements the statutory renewable biomass requirement and satisfies EPA’s 

obligations under the statute. 

EPA is not persuaded by Petitioners’ arguments to the effect that there is 

more than a trivial possibility of non-compliance with renewable biomass 

requirements under the aggregate compliance approach. EPA believes that 

the number of acres involved in possible land shifts will be de minimis 

(providing the 2007 baseline is not exceeded) and, based on information from 

 29 Regulation of Fuels and Fuel Additives: Changes to the Renewable Fuel Standard Program; 

Final Rule, 75 Fed. Reg. 14670, 14703 (March 26, 2010).
23

USDA, also believes that to the extent land shifts occur, only a very small 

amount of produce from such lands is likely to be used for biofuel production. 

These two factors combined confirm EPA’s view that the aggregate 

compliance approach provides an effective and reasonable means to 

implement the renewable biomass requirement for domestic crop and crop 

residue.

Petitioners do not agree that existing evidence and reasonable assumptions 

indicate that land shifts that could undermine the aggregate compliance 

approach will occur in only de minimis levels. They argue that EPA’s 

analysis of the trend of agricultural land contraction between 1997 and 2007 

cannot be applied to subsequent years as EISA’s total mandated volume of 

renewable fuel increases. EPA first notes that the estimated 41 million acre 

contraction in total agricultural lands between 1997 and 2007 occurred 

despite increases in population and increases in demand from expanding 

markets such as China. Thus, EPA believes that the historical trend is indeed 

informative in attempting to predict a future where additional demands on 

agricultural commodities from EISA and from elsewhere will come into 

play.30

 30 This information also supports EPA’s aggregate approach in another way. It is possible 

that a substantial portion of the 41 million additional agricultural acres in 1997 that do not 

appear in the 2007 aggregate agricultural land estimate, still qualify for renewable biomass 

production under EISA. Such acres were likely “cleared or cultivated” prior to EISA, and 

would be eligible for renewable biomass production providing they were actively managed, 

and not forested, as of the date of EISA enactment. However, EPA calculated the baseline 

for use in the aggregate approach using the much lower 2007 value of 402 million acres, 

without providing any upward adjustment to reflect the possibility that additional historicallyutilized acres would also qualify. This conservative approach provides another reason for 

confidence that the aggregate compliance approach will effectively implement EISA’s 

renewable biomass requirements. 

However, in addition to the historical data showing agricultural land 

contraction, EPA also noted economic factors, discussed below, that would 

tend to lead farmers to use existing agricultural land rather than clearing new 

land for additional crop growth. Finally, we note that under EISA the 

expected use of crops for biofuel production rises significantly in the early 

years of the program, when most of the qualifying fuel is expected to be 

produced from corn and soybeans, and then reaches a plateau as the Act calls 

for additional renewable fuels to be made from cellulosic materials such as 

forestry residues and crop residues such as corn stover. A large proportion of 

the volumes of crop-based fuels that are expected to be produced under full 

EISA implementation is already being produced today. EPA believes that the 

historical trend of U.S. agricultural land contraction, , economic factors that 

can be expected to encourage farmers to use existing agricultural land for 

expanded crop production, and the fact that much of the crop-based biofuel

feedstock expected to be needed on an annual basis for full EISA 

implementation is already being devoted to that purpose, support the 

assumption underlying the aggregate compliance approach that new U.S. 
24

agricultural lands are unlikely to be devoted to crop production to make 

biofuels into 2022. EPA’s annual assessment of total agricultural acres, and 

comparison of that value to the 2007 baseline, will provide a regular check on 

whether more land is being devoted to agricultural purposes over time. 

Petitioners claim that EPA’s assessment that cropland acres may 

increase under EISA may underestimate the potential for such changes 

because EPA modeling results are based on projections of increased crop 

yields over time and that these projections are “optimistic and uncertain at 

best. They claim that the projections for corn and soy are based on “uncertain 

technological advances and economic models.”31 Petitioners fail to suggest 

any alternative projected yield values. EPA first notes that projected increases 

in cropland acreage, or acres devoted to corn or soy, are not relevant to 

determining the reasonableness of the aggregate approach, since the approach 

is based on the total of cropland, pastureland and CRP land, and nothing in 

EISA prevents a growth in cropland at the expense of the other two categories

or an increase in acres to corn and soy as opposed to other crops. 

Furthermore, as described in the RFS2 Regulatory Impact Analysis, EPA’s 

projected domestic yields were based on USDA projections through 2018 (the 

last year of the USDA baseline projections report at the time) and then 

extrapolated to the year 2022.32

 31 See, e.g., CATF Petition at 26. 

 In light of USDA’s expertise in domestic 

agricultural matters, EPA believes it was justified in relying on USDA 

projections for the final rule, and that its extrapolation from available USDA 

data was reasonable. The USDA yield projections for major crops, such as 

corn and soybeans, are based on relatively stable trends from recent years. 

Since yields for these crops are projected to maintain these stable trends, it is 

reasonable to extrapolate these trends from 2018-2022. Petitioners’ specific 

complaint with EPA’s modeling approach is that it is based on technological 

advances “over the next twelve years, as opposed to what is actually likely to 

happen in the near term.” Thus, Petitioners appear to be concerned that 

EPA’s modeling results were based on full implementation of the statutorilyprescribed volumes in 2022, rather than on some prior year. In essence, they 

raise the concern that even if crop yields improve as projected by 2022, and 

the corresponding estimate of 2022 cropland acres is accurate, this may not 

be the case in prior years, before crop yields have improved to the extent 

projected for 2022. In response, EPA reiterates that even if cropland acres 

increase more than EPA has projected, that does not mean that total 

agricultural acres will exceed the 2007 baseline. The historical trend in 

agricultural land contraction, the fact that much of the crop-based fuel 

expected to be produced under full EISA implementation is already being 

produced, and economic factors related to developing new land for 

agricultural production, would still suggest that the total of cropland plus 

32 RIA at 874. 
25

pastureland plus CRP land will not exceed the 2007 baseline acreage. . 

Furthermore, EPA will review USDA data annually to determine whether 

EPA’s assumptions remain valid and will discontinue the aggregate 

compliance approach when and if it is determined that the 2007 baseline is 

exceeded. Therefore, EPA does not believe that the lack of modeling results 

for years prior to 2022 justify modification of the current approach. 

Petitioners contest EPA’s assumption that undeveloped land not used 

as agricultural land in 2007 is generally not suitable for agricultural purposes. 

EPA noted in the preamble to the final RFS2 rule that this assumption 

supported our determination that the aggregate compliance approach is 

appropriate for verifying compliance with the renewable biomass requirement 

for domestic crops and crop residue. Petitioners argue, citing a 2007 

Government Accountability Office report,33 that price support and risk 

protection available to crop producers under the Farm Bill provide substantial 

economic incentives for farmers to convert undeveloped land to cropland. 

However, EPA has consulted with USDA on this matter, and USDA has 

informed us that price supports and crop insurance should not significantly 

affect planting decisions on undeveloped land since direct payments and crop 

insurance are generally not available for land on which crops were not grown 

within the last three years.34 Exceptions exist for land previously enrolled in 

the CRP (which in any case is eligible under EISA for renewable biomass 

production); where new acreage constitutes five percent or less of the insured 

planted acreage in the unit; or where a “new breakings” or “NB” written 

agreement specifically allows insurance for such acreage.35 USDA’s Risk 

Management Agency has provided data showing that, for the past three years, 

the number of acres covered by a NB written agreement ranged from 0.03 to 

0.06 percent of total insured acres.36 Furthermore, USDA notes that crop 

insurance is not likely to create an economic incentive for farmers to clear 

new land because the coverage provided has a deductible between 25 and 35 

percent, which ensures that crop insurance does not create a profit where it 

would otherwise not exist.37 USDA maintains that there are no USDA 

program payments encouraging corn and soybean planting in recent years, 

citing its Commodity Estimates Book for FY2011.38

 33 http://www.gao.gov/new.items/d071054.pdf

 Moreover, USDA 

confirms that increased crop yields, which have been projected by both USDA 

and EPA, may cause farmers to switch from lower yield crops (such as wheat) 

34 EPA Questions and USDA (ERS, FSA, WAOB, RMA) Responses Related to Petitions for 

EPA Reconsideration of the Aggregate Approach for Renewable Biomass under the RFS2 

Program (“EPA/USDA Q&A Document”), Q&A #1. 35 Id. 36 Id. 37 Id. 38 Id., citing 

http://www.fsa.usda.gov/Internet/FSA_File/pb11_commodity_estimates_book.pdf
26

to higher yield crops (such as corn), but is unlikely to cause farmers to expand 

agricultural production to new land in the U.S.39 USDA believes that if there 

is pressure to develop new lands for farming purposes, such pressure is more 

likely to lead to land clearing overseas.40 However, EPA has instituted 

individual reporting and recordkeeping related to implementing the renewable 

biomass requirement overseas, so any new agricultural land development 

overseas will not be devoted to biofuel feedstock production for export to the 

U.S. EPA has recently finalized a petition process that parties may use in 

seeking the approval of an aggregate compliance approach in a foreign 

country, but each such petition will be evaluated on its merits, after an 

opportunity for public comment, and will only be approved if the 

circumstances indicate that an aggregate compliance approach is appropriate 

for the country in question.

Petitioners argue that “advances in herbicides, genetically engineered 

crops, and large farm equipment continue to provide an incentive to break 

new ground.” 41 However, USDA has informed us that such advances 

typically lead farmers to switch from crops with lower returns, such as wheat, 

to those with higher returns, such as corn and soy. 42 Furthermore, to the 

extent that such advances do lead to the use of what had previously been 

considered marginal lands for crop production, EPA believes it likely that the 

marginal lands that will be brought into production will be pastureland, CRP 

land or those that have been brought out of production during the recent 

period of agricultural land contraction. Such lands either qualify, or are 

likely to qualify, for renewable biomass production. 43

 

 

Finally, Petitioners argue that new studies undermine EPA’s central 

assumption in developing the aggregate compliance approach, that existing 

agricultural land is sufficient to meet the increased volumes of biofuel and 

other foreseeable demands. However, the data and studies submitted do not 

support their claim that EPA’s assumptions are incorrect. 

Some of the studies cited show increases in cropland as well as in corn 

plantings. However, this data is not directly relevant to consideration of the 

validity of the aggregate compliance approach. The aggregate compliance 

approach is applicable to all “existing agricultural land” in the United States. 

The term “existing agricultural land” is defined in RFS2 as cropland, 

pastureland, and Conservation Reserve Program (CRP) land.44

 39 Id., Q&A #2. 

 The studies 

40 Id. 41 See, e.g., CATF Petition at 24-25. 42 EPA/USDA Q&A Document, Q&A #2. 43 See footnote 30. 44 40 C.F.R. § 80.1401 (2010).
27

Petitioners have cited that show increases in cropland4546 or acres of corn or 

soy planted47 do not indicate that “existing agricultural land” as a whole has 

increased. The aggregate compliance approach is based on the premise that 

the amount of existing agricultural land in the U.S. is sufficient for biofuel 

production as well as for other agricultural purposes. The aggregate 

compliance approach is not invalidated by an increase in cropland or in acres 

of corn or soy planted, but only by an increase in total agricultural land. It is 

possible that total cropland or acres of corn or soy planted may increase over 

time, but the increase may be offset by a decrease in pastureland, CRP land, or 

cropland devoted to crops other than corn or soy, to yield no increase in total 

agricultural land. 

For example, the prospective plantings study Petitioners cite shows a 

3% increase in corn plantings for 2010, but also shows a 9% decrease in 

wheat acres that will be planted.48 These numbers do not provide any 

indication that overall agricultural land is increasing, but indicate only that the 

market has recently favored corn and soy planting over other agricultural 

commodities. As further evidence of this, USDA has provided data that 

indicates that, at least in the major wheat-producing counties in the Midwest, 

decreases in plantings of wheat alone, since 1990, can account for at least half 

of the increase in corn and soy acres. 49 

Finally, none of the studies the Petitioners cited indicate that the 

increases in cropland or corn planting has been or will be occurring on land 

that does not qualify under the RFS2 definition of existing agricultural land. 

In fact, one study indicates that cropland could expand due to corn ethanol 

production, but suggests that the source of the expansion will be pastureland 

and CRP land,50 both of which are considered existing agricultural land and 

could be the source of qualifying crop or crop residue feedstocks under RFS2. 

USDA confirms this, stating that rather than clearing new, non-agricultural 

land for planting crops, farmers are likely to convert pastureland into cropland 

because it requires fewer inputs to be suitably productive as cropland.51 

Petitioners also cite a study showing the conversion of agricultural 

acres in California and Oregon to development between 1982 and 2000, 

 45 U.S. EPA, Renewable Fuel Standard Program (RFS2) Regulatory Impact Analysis (Feb. 

2010), pdf p. 357. 

46 USDA, Ethanol and a Changing Agricultural Landscape (Nov. 2009), available at

http://www.ers.usda.gov/Publications/ERR86/ERR86.pdf. 47 USDA, Prospective Plantings (Mar. 31, 2010) available at 

http://usda.mannlib.cornell.edu/usda/current/ProsPlan/ProsPlan-03-31-2010.pdf. 48 Id. at 1.

49 EPA/USDA Q&A Document, Q&A #2 50 USDA, Ethanol and a Changing Agricultural Landscape (Nov. 2009), available at 

http://www.ers.usda.gov/Publications/ERR86/ERR86.pdf, p. 7. 51 EPA/USDA Q&A Document, Q&A #2 
28

including roughly 665,000 acres that were converted from cropland to urban 

and built-up uses. They also cite a study by USDA’s National Resources 

Inventory (“NRI”) showing that more than four million acres of agricultural 

land has been lost to development between 2002 and 2007, although 

Petitioners acknowledge that this figure includes rangeland.52 Petitioners cite 

these studies to support an assertion that “there is indeed a substantial acreage 

of farmland converted to developed land,” and, therefore, that EPA’s 

statement that is possible that land switches could occur in de minimis levels, 

lacks support.

53 EPA notes, first, that the conversion of rangeland to 

developed uses is irrelevant to any evaluation of the adequacy of the aggregate 

approach, since rangeland is not included within the definition of “existing 

agricultural land” and, therefore, cannot be used to produce renewable 

biomass. Since there are vast quantities of rangeland in the United States, 

EPA expects that a substantial part of the 4 million acres covered by the NRI 

study were indeed rangeland. Also, any expansion of agricultural land that 

occurred prior to December 19, 2007 is also irrelevant, since all agricultural 

land existing as of that date qualifies for renewable biomass production under 

EISA. As to the 665,000 acres of cropland that were lost to development in 

California and Oregon over roughly two decades, EPA believes that such 

losses may have contributed to the overall contraction in total agricultural 

acres that was documented through its historical analysis. To the extent these 

or similar croplands lost after 2007 were or will be replaced , we believe it 

likely that they were or will be replaced with pastureland or CRP land, as 

described above, rather than with newly cleared land that does not qualify for 

renewable biomass production under RFS2. Finally, even if some portion of 

this type of cropland were or will be replaced with newly cleared land, such a 

shift would likely be de minimis when viewed in the context of the 402 

million acre total that is the 2007 baseline. Moreover, since biofuels are only 

expected to be produced on a small fraction of total U.S agricultural land, 

there is only a trivial potential that non-qualifying biofuel feedstocks would be 

produced on such lands.

Petitioners also reference data from three Midwest states which they 

argue illustrates the conversion of native grasslands to cropland.54

 52 Natural Resources Conservation Service, State of Oregon 1997 National Resources 

Inventory Results: Conversion of Prime Farmland Soils on Natural Resource Lands to Urban 

Lands Findings (Revised December 2000), available at

http://www.or.nrcs.usda.gov/technical/nri/archive/res2urbprime.html.

 However, 

it is unclear from the information provided whether the grasslands that were 

converted were previously classified as pastureland or CRP land, in which 

case the conversion to cropland would simply represent a shift from one type 

of land within the definition of “existing agricultural land” to another. Such a 

53 See, e.g., CATF Petition at 22.

54 See, e.g., CATF Petition at 25. 
29

shift could occur, and the resulting crops and crop residue from those lands 

would qualify as renewable biomass. In addition USDA has informed us that 

a “new breaking” for purposes of the referenced data gathering would include 

any land that simply did not have a crop history for the prior three years. 

Thus, some of the land may have been cropped four or more years prior to the 

data gathering effort, and therefore would qualify under EISA for the 

production of renewable biomass, contrary to Petitioners’ assumptions. 

Finally, USDA informs us that the total number of acres reported as “new 

breakings” is likely an overestimate, since if any portion of a planted area was 

“newly broken,” then the entire acreage would have been categorized as such, 

rather than just the portion that was actually newly broken.55 

In the context of preparing this petition response, USDA provided us with 

data showing the percentage of agricultural land devoted to producing 

feedstock for biofuel production for the decade beginning in 2000/2001.56 

After adjusting acreage to account for co-products from corn and soy 

cultivation, USDA estimates that only 4.9% of total agricultural land was 

directly attributable to biofuel production in 2009/2010.57 Because only a 

relatively small percentage of existing agricultural land is devoted to growing 

feedstock for biofuel production, it is likely that only a correspondingly small 

percentage of the production from the type of de minimis land shifts that EPA 

acknowledged could occur is likely to be used in biofuel production. In light 

of the expectation that any potential land switches would involve at most a de 

minimis number of acres, this means that there is a theoretically exceedingly 

small level of possible noncompliance under the aggregate compliance 

approach. Thus, EPA believes that the aggregate compliance approach 

provides a reasonable and effective means for implementing the renewable 

biomass requirement for domestic crops and crop residue. 

B. Conclusions 

For the foregoing reasons, EPA has concluded that the concerns 

expressed by Petitioners should have been raised during the comment period 

and that their arguments and newly-submitted data and information are not of 

central relevance to the outcome of the rulemaking, as they do not provide 

substantial support of the argument that the final rule should be revised. 

 55 EPA/USDA Q&A Document, Q&A #3.

56 EPA/USDA Q&A Document, Q&A #4 

57 Id.
30

C. Denial of Petitions for Reconsideration and Requests for 

Administrative Stay

EPA is therefore denying the Petitions for Reconsideration regarding 

the aggregate compliance approach, as the criteria for reconsideration under 

section 307(d) have not been met. Since we are denying the petition for 

reconsideration, we are also denying the requests for an administrative stay 

pending reconsideration.