Analysis on Potential Impacts of the RFS on Endangered Species

This memorandum supplements the analysis in our August 2019 report, “The RFS and Ethanol Production: Lack of Proven Impacts to Land and Water” (“Ramboll Report”), in which we analyzed potential environmental impacts of the RFS program and concluded that there are no proven adverse impacts to land and water associated with increased corn ethanol production under the RFS. The impetus for this supplemental memorandum is a recent D.C. Circuit opinion on a petition for review of EPA’s final rule setting the renewable fuel standards for 2018 (the “2018 RVO Rule”). Am. Fuel & Petrochemical Mfrs. v. EPA, No. 17-1258 (D.C. Cir. Sept. 6, 2019). The Court remanded the rule back to the agency to further consider petitioners’ claims that EPA failed to comply with the Endangered Species Act (ESA). Specifically, the Court directed that under ESA Section 7, EPA must make an appropriate determination as to whether the 2018 RVO Rule “may affect” a listed species or critical habitat.

We are aware that the ESA Section 7 consultation issue is relevant not only to the remand in the above case, but also to future EPA rulemakings with respect to the Renewable Fuel Standard Program (RFS), including EPA’s proposed rule setting the renewable fuel standards for 2020 (the “2020 RVO Rule”). Following on our 2019 Report, we are providing this supplemental analysis to explore further whether there is any evidentiary basis in the record for EPA to conclude that the RFS program “may affect” a listed species or critical habitat. This memorandum focuses on the technical aspects of the record relied upon by the Court that were supplied by petitioners’ exhibits.

In sum, there are at least two important causal chains that must be quantified and linked together to demonstrate a relationship between increased corn ethanol production under the RFS and impacts to ESA-listed species: 1) a causal chain linking the RFS to land use change and water quality impacts; and 2) a causal chain linking these impacts to land and water with specific impacts on the survival or reproduction of ESA-listed species. Each of these causal chains is made up of many embedded biophysical and economic relationships that, in turn, are influenced by a myriad of interrelated variables. The Lark Declaration fails to consider these causal relationships in a meaningful way, relying instead on unfounded assumptions and speculation to support its thesis.