LINCOLN, Neb. (DTN) -- Although Renewable Fuel Standard Volumes for 2026 were required to be finalized in October 2024, attorneys for the federal government argued in federal court in Washington, D.C., this week that a lawsuit filed by biofuels groups should be dismissed because their notice of intent to sue the U.S. Environmental Protection Agency came before the agency violated the Clean Air Act.

In July 2024, Clean Fuels Alliance America and Growth Energy told the EPA of their intent to file a lawsuit. By statute, EPA was required to finalize 2026 volumes by October 2024 -- 14 months before the 2026 compliance year begins.

Attorneys for EPA this week argued the biofuels groups provided the intent to sue too early, although the Biden administration announced the 2026 volumes would come a full year late.

The groups filed a lawsuit in the U.S. District Court for the District of Columbia on Dec. 20, 2024, arguing the agency violated the Clean Air Act in not promulgating the 2026 rule within the timeframe.

The biofuels groups asked the court to require EPA to undertake an "expeditious rulemaking" schedule. The public comment period between an RFS proposal and a final rule is required to be a minimum of 30 days but is most often 60 days.

"Instead, plaintiffs sent EPA letters months before EPA's statutory deadline to issue regulations for the 2026 renewable fuel volumes under the Renewable Fuel Standard program, asserting EPA might miss an upcoming deadline and threatening to sue the agency before the deadlines even passed," the EPA said in a brief filed on Monday.

"Because this type of anticipatory, pre-violation notice is insufficient to satisfy the Clean Air Act's mandatory pre-suit notice requirement, this court should dismiss this action in its entirety."

The EPA brief said the notice of intent to sue came prior to an "actual violation" occurring.

Earlier this month, the biofuels groups filed a brief in opposition to a motion to dismiss, saying that when the notice of intent to sue was provided, the agency would be unable to meet the deadline as a "practical matter."

The groups said they waited longer than the required 60 days from their notice to file the lawsuit.

"EPA does not dispute -- nor could it dispute -- that it missed the statutory deadline," the biofuels groups said.

"EPA likewise does not dispute that Clean Fuels and Growth Energy provided EPA with specific notice of their claim -- so that EPA could have attempted to mitigate the effects of its failure -- or that they waited the requisite 60 days after submitting their notices before commencing this lawsuit. EPA's only argument in its motion to dismiss is that Clean Fuels and Growth Energy sent their letters a few months too early."

The groups told the court EPA had not read the Clean Air Act statute correctly and that there is nothing in the act to require the missing of statutory deadlines before filing lawsuits.

"It is particularly clear that Clean Fuels and Growth Energy provided adequate notice because EPA's violation was not hypothetical or contingent but rather a foregone conclusion at the time of their notice," the groups told the court.

"EPA had publicly announced its intent to miss the deadline and it was no longer possible for EPA to meet the deadline. Further, treating the notice as adequate here even though it was provided before the deadline passed better serves Congress' intent both in requiring notice of intent to bring a citizen suit and in enacting the RFS program: it gave EPA an opportunity to mitigate its delay and to mitigate or even prevent the resulting damage to the achievement of Congress' goal of increasing renewable fuel use in 2026."

Growth Energy and Clean Fuels Alliance America said they provided additional notice to the EPA on Feb. 28, 2025.

The groups said the court can either rule the February 2025 notice was sufficient or allow them to file an amended lawsuit based on that later notice.

Read more on DTN:

"Clean Fuels Alliance America to Sue EPA on Renewable Fuel Standard Volumes Delay," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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