Law and the Environment

EPA Denies Texas Governor's Request to Reduce by Half the Renewable Fuels Mandate

The Environmental Protection Agency (EPA) denied a Texas request to reduce the national biofuels mandate in half for a year, EPA Administrator Stephen Johnson said today.

Texas Gov. Rick Perry requested that EPA lower the 2008 renewable fuel standard from 9 billion gallons to 4.5 billion gallons.  He claims that the mandate is causing higher food and feed costs, and therby hurting the Texas economy.

"The [renewable fuel standard] is strengthening the nation's energy security and supporting America's farming communities," Johnson said. The mandate "will remain an important tool in our ongoing effort to reduce greenhouse gas emissions and lessen our dependence on foreign oil in aggressive yet practical ways."

Ethanol Developer Wins Case Challenging the Construction of Plant in a Small Town in Missouri

Ethanol has been deemed in many circles as an energy security and greenhouse gas solution.  However, ethanol plants to some communities are not welcome.  In a recent article in the Wall Street Journal, a list of cases were discussed in which landowners protested permits and challenged ethanol plants in court.  These cases to some raise serious concerns and to others present the NIMBY or “Not in My Backyard” syndrome.

Many of these challenges arise from concerns from air pollution and nuisance odors.  In a report by Energy Law 360 a different approach was taken by a group in a small town in Missouri. Citizens for Groundwater Protection, a group of about 500 people, sued Gulfstream Bioflex Energy LLC in October 2006, claiming that its plan to build an ethanol plant on a 252-acre tract in Webster County, Mo. would deplete the water supply in the nearby aquifer and discharge water and contaminated waste water both above ground and below ground.

The case is Citizens for Groundwater Protection et al. v. Gulfstream Bioflex Energy LLC et al. (case number 06WE-CC00076, in the Circuit Court of Webster County, Mo.).  The Missouri state judge ruled that the plaintiffs’ burden is to prove by clear and convincing evidence that defendants’ actions will “certainly and inevitably” cause them harm, “free from all substantial doubt.” The court found that the plaintiffs have failed to meet this burden.

The Ozark Aquifer holds 450 trillion gallons of water and supplies all of southern Missouri, the judge concluded.  Webster County uses less than 1 billion gallons of water every year, a relatively small amount compared to other areas that use up to 200 billion gallons. The state district court judge heard testimony from drillers, geologists, environmentalists and other experts on the issues of groundwater use and potential contamination.  He ruled that Webster County appeared to have a substantial water supply that would not be harmed with the addition of the plant.

The group plans to file posttrial motions seeking to overturn the order and, if those fail, will likely appeal the case, according to their attorney William McDonald, an attorney for the plaintiffs.

Gulfstream Biolflex’ proposed plant would produce up to 88 million gallons of ethanol per year, using about 945 gallons of water every minute, the judge said, noting that it would not work at full capacity all the time.