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Court Orders DOE to Reconsider Necessity for Private/Municipal Fleet Rule
The
Background: Under EPACT, DOE was required to periodically determine the technical and economic feasibility of achieving the goal of producing sufficient replacement fuels to replace at least 30% by the year 2010 of the projected consumption of motor fuel in the
Another part of the EPACT required DOE to determine whether a fleet purchase requirement was necessary to achieve the 2010 goal and, if it was determined to be necessary, then a fleet purchase rule was to be published. At the same time, the law required DOE to consider whether the 2010 goal itself was impractical and whether it should be modified.
The statutory deadlines for these requirements came and went with no action by DOE. This prompted a lawsuit in 2002 by the Center for Biological Diversity and resulted in a court decision ordering DOE to make a decision whether to implement a private/municipal fleet rule. The DOE complied by conducting a rulemaking which resulted in a final decision in 2004 in which DOE concluded that a private/municipal fleet rule was not “necessary” because such a rule would make little difference [an estimated impact of about 0.2 percent] in achieving the 30% by 2010 goal or any revised goal.
The Current Order: The current court order resulted from another lawsuit by the Center for Biologic Diversity, seeking to set aside the agency’s decision and requiring DOE to modify the 30 percent by 2010 goal and then redetermine the fleet purchase rule in light of the modified goal. The judge agreed saying that the law requires DOE to modify the goal to make it realistic. Interestingly, the order seems to suggest almost a backwards analysis – that the goal must be set at a level where the impact of a fleet purchase rule will be meaningful and, therefore, necessary. The judge stated: “The Secretary could only carry out the statutory test by first modifying the goal so as to be realistic. For example, if the revised goal were reduced from thirty percent to five percent, even a 0.2 percent contribution would go a tenth of the way in closing the gap between where we are now (three percent)….and the revised goal (five percent). That in combination with the other AFV programs mentioned might well be enough to trigger a necessity finding.”
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