September 14, 2007
The US Department of Energy (DOE) published a proposed rule indicating that it has no plans to adopt a regulation requiring private and local government fleets to acquire alternative fuel vehicles (See 72 Fed. Reg. 52496). This is the second time that DOE has said that such a rule is not necessary under the Energy Policy Act (EPAct) of 1992 and that such a rule would not contribute significantly to petroleum reductions if adopted.
DOE first rulemakings on this matter began in 1996. DOE previously had attempted to avoid the issue altogether by not completing that rulemaking, but was sued in 2002 and eventually was forced to make a determination. That initial determination proposed in 2003 and finalized in 2004 also resulted in a lawsuit and a requirement that the department go back and reassess its decision. The lawsuit also resulted in a requirement that DOE revise the petroleum replacement goal established in EPAct 1992 and use that revised goal as the benchmark in determining whether a private and local government fleet rule is necessary. DOE subsequently proposed and finalized a revised replacement fuel goal of 30 percent replacement fuel use by 2030.
It will be interesting to see whether the latest decision that this fleet rule is not necessary is challenged in court. Given the plaintiff’s (Center for Biological Diversity) track record and success in litigating against DOE, a future court confrontation is likely. Such a confrontation is all the more likely since it appears that DOE has relied on some of the same analysis and reasoning for which it previously was criticized. And DOE candidly admits in its notice that the prior replacement fuel goal revision did not endeavor to measure the impact that a potential private and local government fleet rule would make. The most recent determination (like previous determinations) is based largely on the DOE’s conclusions that such a fleet rule would result in only a miniscule amount of alternative fuel use. But this conclusion looks only at the impact of regulated fleets. The court ruling regarding DOE’s prior decision appeared to be persuaded by the argument brought by plaintiffs that such a rule would have broader market implications as a result of increasing the availability of alternative fuel vehicles and that these broader implications should be considered.
A public hearing on the proposal will be held in Washington, DC on October 17 and written comments may be submitted to DOE by November 13. The proposal and supporting information are available on DOE’s website: http://www1.eere.energy.gov/vehiclesandfuels/epact/private/plg-ab69_docket.html.
NGVAmerica will be submitting comments. If you are interested in submitting comments or testifying at the DOE hearing, contact Jeff Clarke at 202/824-7364 or jclarke@NGVAmerica.org.
Courtesy of NGVAmerica, www.ngvamerica.org.