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Precedent from the U.S. Supreme Court and the United States Court of Appeals for the District of Columbia Circuit makes clear that in the face of congressional silence in the Energy Independence and Security Act (EISA), Pub. L. No. 110-140, §§ 201-204, 121 Stat. 1492 (codified as amended at 42 U.S.C.S. § 7545(o) (Supp. II 2008)), on the effect of the Environmental Protection Agency 's (EPA) delay in promulgating the revised regulations, the court should not presume Congress intended EPA would lose authority to act upon missing statutory deadlines but must determine, without deferring to post hoc arguments of counsel, what Congress would have intended when the EPA missed a statutory deadline in the EISA. The self-evident purpose of the EISA permits the EPA's action in promulgating the Final Rule in order to ensure the volume of biomass-based diesel required for 2009 is not forgone. Congress enacted the EISA to expand the renewable fuel program under the 2005 Act in order to increase the production of clean renewable fuels. Pub. L. No. 110-140, 121 Stat. 1492. It tied this expansion to, among other things, the nation's security, a matter of interest to every citizen, 73 Fed. Reg. at 24,916.
The Energy Independence and Security Act (EISA), Pub. L. No. 110-140, §§ 201-204, 121 Stat. 1492 expanded the existing renewable fuel program, which required set volumes of renewable fuel be incorporated into gasoline sold in the U.S. each year. The EISA increased the volume requirements for renewable fuel and added new volume requirements for advanced biofuels, biomass-based diesel, and cellulosic biofuel. Subsequently, the Environmental Protection Agency (EPA) posted notice of the final revisions to the regulations promulgated under the 2005 Act on its website on February 3, 2010, and published the revised regulations in the Federal Register on March 26, 2010 (“Final Rule”). Petitioners, the National Petrochemical and Refiners Association and the American Petroleum Institute, challenge the Final Rule on three grounds. Petitioners contended that the Rule violated statutory requirements setting separate biomass-based diesel volume requirements for 2009 and 2010, was impermissibly retroactive, and violated statutory lead time and compliance provisions.
Was the Final Rule violative of the statutory requirements setting separate biomass-based diesel volume requirements for 2009 and 2010, and of the statutory lead time and compliance provisions?
Inter alia, the court held that the Environmental Protection Agency (EPA) was authorized to apply in 2010 the volume requirement for biomass-based diesel Congress established for 2009. Congress' provision for a loss of authority as a result of delay did not show a congressional intent to divest EPA of authority to act when it missed, due in part to carrying out statutory directives, statutory deadlines for setting biomass-based diesel standards for 2009 and 2010. Congress was expanding an existing renewable fuel program and EPA could, as it did, leave the former regulatory program in place, adjusting it to incorporate the new volume requirements, until the revised regulations were finalized. The remaining claims also failed. Accordingly, the court denied the petitions for review.