Comment Period Coming to a Close for EPA's Proposed Rule Creating New Quality Assurance Program for Renewable Identification Numbers
On February 21, 2013, the U.S. Environmental Protection Agency (“EPA”) opened the comment period on a proposed rule that would create a Quality Assurance Program (“QAP”) to combat fraudulently-created Renewable Identification Numbers (“RINs”) – a serial number assigned to a volume of biofuel for the purpose of tracking its production, use and, trade. A public hearing on the proposal was held in Washington, D.C. on March 19, 2013. Interested parties must submit their comments no later than 30 days thereafter, or by April 18, 2013, if they hope to influence the rulemaking process.
The QAP is intended to respond to the growing problem of fraudulently-created RINs, a practice wherein RINs are created and sold without the manufacture of the corresponding volume of biofuel. It aims to establish a set of options, or quality assurance procedures, to verify RIN validity and then also creates an affirmative defense against civil liability for obligated parties who purchase RINs under a QAP program that are later found to be invalid. This proposed change amends the EPA’s original “buyer beware” approach, which imposed strict liability on all obligated parties that transferred or used invalid RINs, no matter the RIN’s origin. The “buyer beware” approach failed to stem the tide of invalid RINs from entering the marketplace, as more than $100 million in fraudulent RINs were identified in the three years after the creation of the standard. Indeed, the “buyer beware” approach led to unintended consequences for smaller, less established biofuels producers, as the increased risk of EPA enforcement actions led obligated parties to favor more established producers.
For more information on the proposed regulatory changes to the Renewable Fuel Standard program, specifically the QAP’s effect on the RIN market, download the recently published white paper by Stoel Rives lawyers Graham Noyes and Sara Bergan.
Last Thursday, the Environmental Protection Agency released its proposed rule for the 2013 Renewable Fuel Standard (“RFS2”) volume obligations. Every year the EPA is required to determine and publish the annual volume requirements for each class of renewable fuel that obligated parties will have to comply with for the upcoming year under the RFS2 program. The volumes required under the proposed rule for 2013 are as follows (generally in ethanol equivalent volume): 14 million gallons of cellulosic biofuel, 1.28 billion gallons of biomass-based diesel (actual volume), 2.75 billion gallons of advanced biofuel, and 16.55 billion gallons of renewable fuel. As always the categories are nested and the advanced biofuel volume includes the volumes set for the cellulosic and biomass-based diesel categories. The renewable fuel category accounts for all renewable fuel including traditional corn starch ethanol.
Three of the four categories are consistent with the volumes set forth by statute. The volume for cellulosic biofuel, however, is set by this rule because it must be the lesser of the statutory volume and EPA’s projection of industry production for any given year. As with each ruling prior to this one under the program, EPA set a dramatically lower cellulosic biofuel volume than the statutory volume based on its assessment of the industry’s status. Rather than 1 billion gallons as would otherwise be required by statute, EPA is requiring obligated parties to account for 14 million gallons of cellulosic fuel. Despite the dramatic reduction from the statutory requirement, this is significant because it is an increase over the 2012 standard of 10.45 million gallons that has been the subject of considerable recent controversy.
Just a few days earlier, the D.C. Circuit Court ruled that EPA impermissibly set the 2012 standard with an eye toward promoting industry growth when, by statute, the agency should have simply made an accurate projection of what the industry could produce in the given year. While petitioners in that case asserted that the EPA volume for cellulosic ethanol should be equivalent to that which the Energy Information Administration (“EIA”) projects, the court instead determined that EPA’s projected volume should be simply based on the EIA projections.
In developing the 2013 requirement for cellulosic ethanol, the EPA relied on EIA estimates but also its analysis of more than 100 biofuel production facilities. The proposed rule includes a detailed analysis of all of the plants currently registered with EPA and able to produce cellulosic RINs. Of those 6 plants, it assumes two (INEOS Bio and KiOR) will be generating cellulosic biofuel RINs in 2013 in an amount equal to 14 million gallons of ethanol. The EIA estimate for 2013 is 13.1 million gallons of ethanol – which is also nearly exclusively based on production from those two plants.
Although the EPA also has authority to reduce the advanced biofuel category based on its decision to reduce the cellulosic biofuel category, the agency decided to keep the broader category at the statutory volume based on its projections of other domestic advanced renewable fuels as well as the ability to import sugarcane ethanol from Brazil. Comments on the proposed rule must be received no later than 45 days after the rule is published in the Federal Register.
I’m excited to report that my colleague and fellow Renewable + Law blogger Graham Noyes was recently named among the “Top 100 People in Bioenergy” by readers of Biofuels Digest and the publication’s editorial board. Graham was one of only three attorneys to make the list, which was headed by U.S. Agricultural Secretary Tom Vilsack for the third consecutive year. CEO Jonathan Wolfson and President Harrison Dillon of client Solazyme placed fourth in the list.
More than 300 individuals received votes in the annual poll, including company executives, scientists, researchers and policy leaders. Overall, leaders from organizations in 13 different countries were recognized in the poll. You can read the full list here.
The U.S Environmental Protection Agency (EPA) today announced it has denied requests from the Governors of Arkansas and North Carolina to waive Renewable Fuel Standard (RFS) volume requirements, based on the effects of the drought on feedstocks used to produce renewable fuel in 2012-2013. The petitions, filed in August, triggered a review process to determine if the implementation of the RFS requirements would severely harm the economy of those states.
After considering the nearly 30,000 comments received during the public comment period and empirical evidence, such as the prices of RINs and market commodities, the agency’s economic analyses did not produce sufficient evidence of severe economic harm that would warrant the granting of the waiver request. The EPA analyzed 500 scenarios and found no impact from the RFS program on corn, food or fuel prices in 89% of those scenarios. In the 11% of scenarios where RFS impacts were shown, the impact was less than a 1% change in corn prices. EPA acknowledged that “this year’s drought has created significant hardships in many sectors of the economy, particularly for livestock producers. However, the agency’s extensive analysis makes clear that Congressional requirements for a waiver have not been met and that waiving the RFS would have little, if any, impact on ethanol demand or energy prices over the time period analyzed.”
In its 83-page Notice of Decision (PDF file), EPA interpreted the waiver provision in a manner consistent with its prior response to the first RFS waiver request from Texas in 2008, which was also denied. In both cases, Section 211(o)(7)(A) of the Clean Air Act was interpreted as providing narrow authority. In order to grant a waiver, EPA would have had to determine with a high degree of confidence that implementation of the mandate would not only contribute to economic harm, but would itself severely harm the economy of the State or region requesting the waiver.
While the issue is politically charged, EPA’s decision making process in waiver requests focuses on the legal standard established by the Clean Air Act. The waiver is essentially a pressure relief valve for the program but is only available when the very high standard of severe harm is met. EPA utilized an updated version of an Iowa State University model to analyze 500 scenarios. In 89% of the scenarios, the model indicated that the implementation of the RFS program would have no impact on ethanol production and corn prices. This is consistent with the market reality that ethanol blending is driven primarily by factors other than the RFS, in particular blending economics and the value of ethanol as an oxygenate. A significant additional factor considered in the EPA analysis is the availability of rollover RINs from prior years that can be utilized by obligated parties. To the extent that rollover RINs are used this year, this factor would change significantly should similar drought conditions return next year.
While this waiver request has now been resolved, interested parties continue to follow EPA rulemaking activities relating to the RFS closely. It is anticipated that the agency will address the issue of RIN fraud in a pending rulemaking. Thanks to my colleague Sara Bergan for her assistance in reporting the EPA's RFS waiver decision today.
EPA Docket ID: EPA-HQ-OAR-2012-0632
In a decision released this morning, the DC Circuit rejected a challenge to the introduction of E15, a gasoline blended with 15 percent ethanol, under an EPA waiver grant. Currently, the national gasoline supply consists largely of E10, a 10 percent ethanol/gasoline blend. With fuel manufacturers confronting mandatory annual increases of renewable fuels under the Renewable Fuel Standard (RFS), Growth Energy, a trade association representing the ethanol industry, had sought an EPA waiver for a new 15 percent ethanol/gasoline blend. The EPA provided partial waivers (1 and 2), under the Clean Air Act for the E15 blend, restricting the fuel’s use to light duty motor vehicles and engines from model-year 2001 and newer. Three sets of industry groups representing engine manufacturers, food producers and petroleum suppliers then sued, challenging the EPA’s waivers.
In a 2-1 decision, the court declined to make a decision on the merits, finding that the petitioners lacked standing to bring the action. In a strongly worded dissent, Circuit Judge Brett Kavanaugh disagreed. Kavanaugh then addressed the merits of the case, finding they were “not close.” He concluded that in granting the E15 partial waiver the “EPA ran roughshod over the relevant statutory limits.”
Where We Go From Here
The decision preserves flexibility for implementing the RFS renewable fuels mandates – for now. However, the lack of a decision on the merits means the EPA waiver process remains vulnerable to judicial challenge. In the meantime, the debate over corn-based ethanol fuel mandates may be shifting to Congress, as predictions for historically low corn crop yields continue to accumulate.
Yesterday the EPA released the third major Notice of Violation ("NOV") against a biofuel producer in the past six months under the Renewable Fuel Standard ("RFS"). The NOV states that EPA has determined that Green Diesel, LLC of Houston, Texas, generated 60,034,033 invalid Renewable Identification Numbers (“RINs’) with a current market value of perhaps $85 million. Coming on the heels of 31 settlement agreements relating to the Clean Green Diesel and Absolute Fuels RINs, this NOV is likely to trigger immediate market reaction. The EPA has been enforcing invalid RIN cases first against the RIN generator then subsequently against the obligated party, i.e., the company that uses the RINs for compliance with RFS. Obligated parties under the RFS are petroleum refiners and importers in the U.S. About a month after the Clean Green Fuel filing, the EPA filed NOVs against the obligated parties. It remains to be seen whether EPA will do so again. The agency may instead rely upon its past actions and its recently released Interim Enforcement Response Policy to motivate corrections by obligated parties.
Some market participants have criticized the EPA for their managing of the RFS program and questioned the RFS program itself. In response, the biofuel industry and particularly the National Biodiesel Board have taken significant steps to address the validity issues. While there is significant time delay as many of the alleged activities date back to 2010, it appears that the EPA enforcement activities have motivated substantial due diligence activities that will serve the RFS program participants well in future years. The immediate challenge is in addressing the new Green Diesel NOV and the resulting contractual implications for market participants who transacted in these RINs. The rapid growth in the value of the RIN market has certainly presented substantial challenges. Nonetheless, private market responses to date suggest that the resourceful biofuel and petroleum industries can weather these storms and ultimately make the RFS program more effective toward its goals of reducing U.S. dependence on foreign oil imports and reducing GHG emissions.
Yesterday, President Obama announced that the U.S. Departments of Agriculture (“USDA”), Energy (“DOE”), and Navy (“USN”, and together with the USDA and DOE, the “Agencies”) will invest up to $510 million over the course of the next three years to support advanced drop-in aviation and marine biofuels to power military and commercial transportation. This is a follow up to President Obama’s Blueprint for a Secure Energy Future (the “Blueprint”). In the Blueprint, the President expressed a desire to begin construction on at least four commercial-scale cellulosic or advanced bio-refineries over the next two years and challenged the Agencies to work together to spur the development of competitively priced substitutes for diesel and jet fuel.
The USDA, DOE and USN responded to the Blueprint by signing a Memorandum of Understanding (the “MOU”). The MOU outlines a plan for the Agencies to partner with the private sector to construct or retrofit several drop-in biofuel plants and refineries. The agencies have stated goals of limiting our nation’s dependence on foreign oil for national, providing tactical and strategic advantages for our military and creating economic opportunities in rural communities. We expect that the USDA will take the lead on addressing feedstocks, the DOE will take the lead on technology, and the USN will be the initial primary consumer of the advanced biofuels.
Each of the Agencies have committed to spending $170 million over the next three years and an Executive Steering Group (the “ESG”) will be established to coordinate the programs. It is expected that the ESG will work with the Agencies to develop and release solicitations to industry beginning in December 2011. The solicitations will be issued in accordance with the Defense Production Act (50 U.S.C. App. 2061 et seq), the Commodity Credit Corporation Charter Act (15 U.S.C. 714 et seq), the Economy Act (31 U.S.C. 1535) and other appropriate authorities. Consequently, rights in inventions made as a consequence of, or in direct relation, of these solicitations will be administered in accordance with the applicable Agency’s governing laws and policies.
DOE announced on December 14, 2010 that funds will be made available for small-scale process integration projects that support the development of advanced biofuels. The biofuels could replace gasoline or diesel without requiring special upgrades or changes to the vehicle or fueling infrastructure. The funding opportunity announcement, reference number DE-FOA-0000337 (the “FOA”) will provide up to $30 million over the next 3 to 4 years to support up to 5 projects.
Successful proposals will focus on optimizing and integrating processes that convert biomass into biofuels and bioproducts that can be used to support hydrocarbon fuels and chemicals. These process improvements could include, for example:
- Pretreatment methods that alter the biomass to improve the yield of sugars in subsequent process steps;
- More cost-efficient enzymes that produce sugars;
- Fermentation organisms and catalysts that convert the sugars into fuel and chemical intermediates.
Successful applicants will demonstrate the economics and efficiency of their proposed process.
This FOA is largely focused on agricultural residues but other feedstock sources can be proposed if the applicant can show compelling evidence that the feedstock will be sustainably available by 2015. However, certain feedstocks and processes are excluded from the scope of this FOA:
- Proposals that use pure sugar feeds and ‘model’ hydrolysates are not eligible for funding under this FOA
- Proposals that include thermochemical processes (example: fermentation of syngas from a gasification process).
- Early- and late-stage processes (i.e. prior to pretreatment and saccharification or after conversion to final product) will not be eligible for funding.
- If a catalytic conversion process is proposed, the hydrogenation process may not be included in the proposed process improvements to be funded under this FOA.
A complete description of the FOA solicitation, eligibility requirements, and application instructions can be found at https://www.fedconnect.net/FedConnect/PublicPages/PublicSearch/Public_Opportunities.aspx
Applications must be submitted through Grants.gov by no later than 11:59 p.m. EST on February 7, 2011. Applicants are requested (but not required) to submit a letter of intent by January 17, 2011.
On September 28, 2010, the House of Representatives passed the Algae-based Renewable Fuel Promotion Act of 2010 (H.R. 4168). The Act amends the Internal Revenue Code to (1) expand the definition of "cellulosic biofuel" to include algae-based biofuel for purposes of the cellulosic biofuel producer tax credit; and (2) provide for accelerated depreciation of property used in the production of algae-based biofuel. The legislation now will proceed to the Senate. For the complete text, please click here.
The DOE announced today that it will provide up to $11 million over three years for improving the conversion via pyrolysis of non-food biomass to biofuels, that can use the existing fueling infrastructure. (Pyrolosis is the process that decomposes biomass using heat without oxygen to produce bio-oil.)
Successful applications for projects will (among other things):
- Address how to make corrosive bio-oils compatible with the current infrastructure
- Catalytically de-oxygenate the molecular fragments in bio-oils
- Demonstrate the ability to produce a liquid transportation hydrocarbon fuel that can be blended at up to 30 percent by weight with petroleum fuels, or produce an upgraded bio-oil compatible with existing petroleum refining unit operations
- Include an analysis of greenhouse gas reductions using the applicant’s technology
DOE anticipates selecting three to four projects under this announcement and will require a minimum of 20% cost share from applicants. Eligible applicants include universities, national laboratories, or companies.
The deadline for the applications is July 9, 2010. Go to Grants.gov. for a copy of the funding opportunity and application.
In an earlier blog post, Debra Frimerman reported that the U.S. Department of Energy was seeking applications for grants to help promote the construction and operation of pilot, demonstration, and commercial scale integrated biorefinery projects. Today, DOE announced the selection of 19 projects to receive up to $564 million in grant money authorized by the American Recovery and Reinvestment Act.
Notable awards include the following:
· $81 million to Bluefire LLC for a Mississippi project to produce up to 19 million gallons of ethanol fuel annually from woody biomass, mill residue, and municipal solid waste.
· $50 million to Sapphire Energy, Inc. for a New Mexico project to produce algal fuels using the Dynamic Fuels refining process.
· $23 million to Clearfuels Technology Inc. for a Colorado scale project to produce renewable diesel and jet fuel from woody biomass.
A complete list of awards is available here.
The U.S. Environmental Protection Agency (“EPA”) expects to make a final determination in mid-2010 regarding a potential increase in the current 10% allowable ethanol content in fuel, the so-called “blend wall”.
In May 2009, Growth Energy, a biofuels industry association headed up by General Wesley Clark, requested a waiver that would allow the use of up to 15 % ethanol in gasoline. As mandated by the Clean Air Act, EPA was required to respond to the waiver request by December 1, 2009. The EPA responded earlier this week in a letter explaining that despite not completing all the applicable tests, early test results on 2 vehicles indicated that engines in newer (i.e. later than 2001) vehicles could probably handle an ethanol blend higher than the current limit. The EPA’s final determination will follow completion of testing on 19 vehicles (the number recommended by the Department of Energy (“DOE”)) which may take another 6 months.
The EPA recognizes that the limit on blends must be raised to achieve the renewable fuel mandate of 36 billion gallon by 2022. EPA has been reviewing public comments and working with DOE to determine the feasibility of a higher ethanol blend. Concerns include the impact on engine component longevity when a higher blend is used long term and appropriate labeling at the fuel pump.
Full text of the letter: http://www.epa.gov/otaq/additive.htm
Below are some perspectives from the recent 2009 Northern Plains Bioeconomy Conference, as attended (and prepared by) my colleague, Joel Dahlgren.
According to Dr. Bruce Dale, a professor of chemical engineering at Michigan State University (MSU), in a carbon-constrained world, cellulosic biomass is the cheapest energy per dollar of gigajoule (GJ) of energy produced. At $60 per ton paid for biomass material, cellulosic ethanol costs $4 per GJ of energy produced, which compares to $6 per GJ for sugarcane purchased for $93 per ton, $9 per GJ for petroleum for $50 per barrel for crude oil, or $6.50 per GJ for coal purchased for $150 per ton (this price per ton includes the cost of carbon capture).
Until recently, I was under the impression that cellulosic ethanol was facing difficult obstacles. But that perception was challenged when I heard Dr. Dale’s presentation at the 2009 Northern Plains Bioeconomy Conference in Fargo, North Dakota, sponsored by North Dakota State University (NDSU). Now, I will not be surprised if within five years companies whose plans to produce cellulosic ethanol have been frustrated by the difficulty of breaking down cellulose will successfully produce cellulosic ethanol from switchgrass, corn stover, miscanthus, DDGs and other cellulosic material as well.
Dr. Dale is developing a biomass pretreatment process called AFEX (batch process) or FIBEX (continuous process) that may revolutionize the production of cellulosic ethanol. The ethanol yield from pretreated biomass is an estimated two-and-a-half times that of untreated biomass. Dr. Dale’s objective is to produce clean, fermentable sugars for an estimated six cents per pound. These pre-treatment processes are expected to be commercialized within five years if the Department of Energy (DOE) grant that these universities have applied for is approved.
AFEX/FIBEX employs a reactor to treat and explode biomass with hot liquid anhydrous ammonia for five to 10 minutes. One key advantage of the AFEX/FIBEX pre-treatment process is that it can be used to co-produce animal feed. Co-producing animal feed with cellulosic ethanol reduces the break-even point by up to 50% over a single-product approach.
Dr. Dale stressed that we are not faced with the choice of food or fuel; as a society, we can have both reasonably priced. Our society can also enjoy rural economic development, less expensive food, improved environmental conditions and a declining reliance on petroleum.
Dr. Dale is also working on a densification process that produces material that is three to five times as dense as untreated biomass and pelletizes the material for transportation and storage. A densification process allows for larger, centrally located biomass refineries with outlying pretreatment facilities. The densified biomass material is more economical to transport, and it stores more easily, much like corn or soybeans.
This project is a joint effort of NDSU, South Dakota State University (Brookings, SD) and MSU (Lansing, MI). MBI International is a member of this group as well. MBI is a 501(c)(3) that is owned by the MSU Foundation. These participants have applied for a DOE grant, and they intend to build a large biorefinery if the grant is approved by the DOE.
For additional information on this conference or on any topics discussed in this posting, please contact Joel or any of our other biofuels attorneys.
Today, the Department of Energy (DOE) announced the release of a funding opportunity announcement (FOA) related to ethanol blends. The FOA provides up to $5.5 million from the American Recovery and Reinvestment Act to increase the use of higher ethanol blends through expanding refueling infrastructure and funding outreach to promote public awareness.
$3.5 million is available to fund refueling infrastructure related to higher ethanol blends. Potential projects include modifications, upgrades, or expansions of fuel pumps at retail gas stations.
$2 million is available to fund national campaign projects that increase public awareness of the benefits, safety, and use requirements of higher ethanol blends.
Applications for this FOA are due October 4, 2009.
Last week, U.S. Department of Energy ("DOE") Secretary Steven Chu and U.S. Department of Agriculture ("USDA") Secretary Tom Vilsack announced the winning candidates for up to $6.3 million in awards for research leading to improved use of plant feedstocks for biofuel production. The seven projects announced follow the green jobs and renewable energy Rural Tour event hosted by the two cabinet Secretaries in Virginia on the weekend of July 18-19. These investments are intended to further the Obama Administration’s efforts to broaden the nation’s energy portfolio while decreasing our dependence on foreign oil.
These grants will be awarded under a joint DOE-USDA program begun in 2006 that is committed to fundamental research in biomass genomics, providing the scientific foundation to facilitate use of lignocellulosic materials for bioenergy and biofuels. Since lignocellulosic crop plants are less intensive to produce and can grow on poorer quality land, competition with crops grown for food production is avoided. For more information on these awards, go to DOE's site for the DOE-USDA biomass genomics research program.
DOE will provide $4 million in funding for four projects, while USDA will award $2.3 million to fund three projects. Initial funding will support research projects for up to three years.
Perhaps the most amazing fact from this announcement is that Secretary Chu is on facebook! How does he find the time? This attorney is impressed. Check out his video announcement on next generation biofuels here.
From InsideEPA.com (reproduced essentially verbatim with the permission of the publisher Inside Washington Publishers):
EPA will measure the greenhouse gas (GHG) impacts of algae-based biofuels in its final rule to implement the renewable fuels standard (RFS) in response to growing interest in the renewable feedstock, including recent announcements by Exxon-Mobil (as noted in an earlier article) and Dow Chemical that they are undertaking separate projects to help commercialize the technology. Algae is a particularly tempting feedstock choice because it can be engineered to sequester large amounts of carbon dioxide (CO2) and because algae-based biofuel has a similar molecular structure to gasoline, allowing it to be used in the existing transportation infrastructure. These qualities could help the fuel sidestep controversy associated with corn-based ethanol, which some say cannot meet the CO2 reduction goals of the RFS and which, due to its corrosivity, can impact engines, pipes and fuel pumps.
EPA fuels official Sarah Dunham said the agency considers algae “a promising feedstock” that will be included in the final RFS rule. EPA issued its RFS proposal earlier this year to expand biofuels use in line with congressional mandates, and is taking comment on the proposal through Sept. 25. Dunham was speaking to a July 16 meeting of a National Academy of Sciences panel on reducing greenhouse gas emissions from the transportation sector. Algae-based fuels could be considered under the advanced biofuel or bio-based diesel portion of the RFS, according to the proposed rule.
Advanced biofuels such as algae-based fuel and cellulosic ethanol are expected to supplement or possibly replace corn-based ethanol. EPA had originally planned to wait to include algae-based biofuels in the RFS, arguing improvements in harvesting, dewatering and lipid extraction were needed to make the fuel economically competitive with other feedstocks, according to the proposal. But the agency’s expected inclusion of algae in the RFS may help boost efforts to commercialize the technology of farming algae, using it to sequester CO2 and then turning the algae either into a biofuel or a chemical.
For example, Exxon July 14 announced its plan to invest $600 million in producing transportation fuel from algae in a partnership with Synthetic Genomics. The partnership would represent Exxon’s first foray into renewable fuels and could help stymie criticism that the company has dismissed concerns about global warming. Synthetic Genomics founder, J. Craig Venter, told the New York Times, “Algae is the ultimate biological system using sunlight to capture and convert carbon dioxide into fuel.”
Additionally, Dow announced June 29 a partnership with startup Algenol Biofuels to build a demonstration plant that would use algae to turn CO2 into a vehicle fuel or an ingredient in plastics. The process also produces oxygen, which would be used to burn coal more cleanly, allowing sequestration of the CO2 produced from the coal to be used to grow more algae. The Department of Energy (DOE) is also considering providing economic stimulus funding for the demonstration plant, that could produce 100,000 gallons of fuel a year, according to news reports.
On a July 20 conference call on development of algae for fuels and chemicals, sponsored by the Biotechnology Industry Organization, leading experts in the field discussed challenges and opportunities for commercializing the technology and how algae-based fuels can play a key role in climate change legislation pending in Congress because of its reliance on CO2. On the call, Ed Legere of Algenol Biofuels said the pending climate bill could vastly help spur the technology. “The game is changing politically and that makes a market for micro-algae,” he said, adding that any cost imposed on CO2 is “an opportunity for algae companies.”
Noting that CO2 capture and sequestration (CCS) systems to bury CO2 underground is an extremely expensive process fraught with technical and legal challenges that does not put the CO2 to use, Legere said using CO2 to produce algae-based fuel could be a win/win situation. For example, a power plant could put in an adjacent algae farm and use the CO2 to grow the fuel or use the algae to make other useful products, rather than spending $500 million for a CCS system that simply buries the CO2. A bonus is that the CO2 used for algae does not need to be compressed, saving additional money. “Forward-thinking companies are already looking at this,” he said. “If cap-and-trade is a reality at $30 a ton [of CO2 emitted], then large emitters are looking at hundreds of millions in costs coming their way.” However, Legere admitted that using CO2 generated from power plants to grow algae is still a long way off and that algae biofuels developers initially will seek to use CO2 streams from industrial processes that are cleaner than coal, with fewer toxins, and have a manageable flow rate of 5 to 100 tons an hour, rather than the 400 tons an hour released by a typical 500-megawatt coal plant.
Also on the panel, Steve Gluck of Dow noted that government support is vital to algae developers, who still need to overcome challenges of scale. Legere said in terms of renewable fuels the best thing the government can do “is not try to pick winners, so whatever policy they put in place they don’t pick who should benefit and who shouldn’t.” Gluck added that Dow is seeking to put algae on a level playing field with other fuels and hopes the government will be “responsive and quick” in deciding whether to allow genetically modified hybrid algae to be grown for fuel.
Additionally, Tom Byrne of XL Renewables said it appears the government is behind algae. In addition to EPA including it in the RFS, DOE July 15 announced up to $85 million in economic stimulus funding grants to develop algae-based biofuels, including the possible funding for the Dow demonstration plant. “So the U.S. is jumping behind it . . . seeing the potential. They understand not all the questions are answered yet but see it can be achieved,” Byrne said. XL Renewables has a 1.5-acre demonstration algae production facility in Arizona. Byrne said capital costs including harvesting and processing equipment are about $40,000 per acre while the company is harvesting about 25,000 tons of algae per acre but hopes to boost that to 100,000 tons. Additionally, he said algae-based biofuel would cost about 30-cents a gallon.
The U.S. Department of Energy (“DOE”) today announced Recovery Act funding of up to $85 million over a three year period for the development of algae-based biofuels and advanced, infrastructure-compatible biofuels. DOE wants leading scientists and engineers from universities, private industry, and government to collaborate in developing advanced biofuels and a thriving domestic bio-industry. Examples of advanced biofuels include green aviation fuels, green gasoline, and green diesel from a variety of biomass feedstocks.
The DOE will award between $25 million and $50 million to one or two teams that develop cost-effective algae-based biofuels. The remaining $35 million will be awarded to one team that can use the existing infrastructure to produce, distribute and transport algae-based biofuels.
Only teams may apply and applications are due September 14, 2009. No letters of intent are required.
The recent blog posting (available here) regarding Exxon's $600 million investment in biofuels served as a reminder to me that comments are due soon (August 3, 2009) on the Department of Energy's draft "National Algal Biofuels Technology Roadmap" (the "Roadmap").
The Roadmap was prepared by a working group commissioned by DOE. The working group was commissioned to assess the current state of algae technology and to determine the next steps toward commercialization. For more information, see my earlier blog.
To submit comments, complete the "Algal Road-Mapping: Request for Information (RFI) Response Form" and submit it as an attachment to an e-mail message addressed to algaeRFI@go.doe.gov
Further, Gary Hunt has reported (available here) that Prize Capital, LLC has issued a $10 million algae fuel prize to encourage the development of advanced algal fuels. For more information about this contest, click here.
Oil giant Exxon Mobil Corp., the world’s largest and richest publicly traded oil company, is making a major jump into renewable energy with a $600 million investment in algae-based biofuels. Exxon is joining Synthetic Genomics Inc., a biotechnology company founded by the genomics pioneer J. Craig Venter, to research and develop next-generation biofuels from sunlight, water and waste carbon dioxide by photosynthetic pond scum.
The partnership will last five to six years and will involve the creation of a new test facility in San Diego to study algae-growing method and oil extraction techniques. Exxon’s investment includes $300 million for in-house studies and potentially more than $300 million to Synthetic Genomics to scale up the technology for commercial production if research and development milestones are successfully met.
The partnership admits that it faces many obstacles, such as type of algae to use, the algae-growing environment, and the scale required for commercial use, to achieve this commercial production goal. Even in light of these challenges, algae holds many potential advantages over other sources of biofuels. One advantage is that algae grows in areas not suited for food crops, using pools of brackish water or even farming them in seawater. Additionally, algae needs carbon dioxide to grow, a benefit that could be used to help cut greenhouse gas emissions that cause global warming.
On July 1, 2009, Washington State’s Department of Community, Trade and Economic Development (“CTED”) issued application guidelines and forms for its State Energy Program (“SEP”) (available by clicking here). The American Recovery and Reinvestment Act of 2009 (the “Recovery Act”) provided $60.9 million in new funding for Washington’s SEP. Subsequently, the Washington Legislature allocated $38.5 million to CTED to administer a loan and grant program for energy efficiency and renewable energy program (see our client alert, available here, regarding the legislative action).
Eligible energy efficiency, renewable energy, and clean energy projects may be eligible for SEP funding between $500,000 and $2 million.
Eligible energy efficiency projects are those that use technologies that have been deployed at commercial scale that result in the reduction in energy consumption through increases in the efficiency of energy use, production, or distribution, and high-efficiency cogeneration. Ineligible projects are those that are eligible for Recovery Act Funding for community wide urban residential and commercial energy efficiency upgrades as described in (i) Chapter 379, Laws of 2009; (ii) Low income weatherization projects and programs which are eligible for funding through the state’s low-income weatherization program; (iii) Loans support to financial institutions for energy efficiency projects as described in Chapter 379, Laws of 2009; (iv) state energy efficient appliance rebates; and (v) green jobs training as described in Chapter 536, Laws of 2009.
Eligible renewable energy projects are those that are located in Washington and use existing commercial scale technologies that generate liquid fuels, process heat or electricity using algae, bark, biodiesel, biomass, biosolids, food waste, fresh water, gas from sewage treatment facilities, landfill gas, geothermal, pulping liquors, sawdust, solar, hydrokinetics, wind, wood chips and various other waste products. Ineligible projects include those that use the following feedstocks: municipal solid waste, wood from old growth forests, and chemically treated wood.
Eligible clean energy innovation projects include are those that offer innovative new technologies or service delivery models for energy efficiency, renewable energy, or other areas of clean energy. Projects must have a solid chance at commercial scale deployment within two to three years. Ineligible projects include carbon sequestration projects, lab scale projects, and those excluded under federal SEP guidelines.
Interested parties must file a notice of intent to apply by July 27, 2009 at 5:00 p.m. Pacific.
Full applications are due on August 17, 2009 at 5:00 p.m. Pacific.
Information workshops will be held on July 13, 14, 15, and 16. Click here for the specific dates and times. I will be attending the July 13 workshop in Everett, WA. An informational webinar will also be held on July 23.
A Minnesota biodiesel plant that has been shuttered for more than one year was approved for a $25 million loan from the U.S. Department of Agriculture (“USDA”). This loan is the second made by its Rural Development division under Section 9003 of the Farm Bill (the Biorefinery Assistance Program).
The loan is to help SoyMor Biodiesel, a 30-million gal/yr plant in Albert Lea "diversify its operations." The old plant could only process soy bean oil and the feedstock costs effectively put it out of business. The USDA Rural Development loan will allow SoyMor to process multiple types of feedstocks for the production of biodiesel. Construction will begin once the plant has secured debt financing and will last approximately six months. The plant employed about 32 people in its heyday.
SoyMor will use Renewable Energy Group (REG) proprietary technology for the upgrades and once the plant is up and running, REG will market the plant's biodiesel.
The Department of Agriculture ("USDA") is now accepting proposals for its Small Business Innovation Research Program ("SBIR"). SBIR has $18.5 million available to fund research projects that address important problems facing American agriculture. Research areas include, but are not limited to:
- Biofuels and biobased products;
- Air, water, and soils;
- Rural development;
- Aquaculture; and
- Animal Manure management
Individual awards can be as high as $90,000 and proposals are due September 3, 2009. For more information click here.
In an earlier blog, my colleague, Debra Frimerman reported about the Rural Energy for America Program (REAP). REAP provides grants and loan guarantees to agricultural producers and rural small businesses to purchase renewable energy systems, make energy efficiency improvements and conduct feasibility studies for renewable energy systems.
REAP is a program under the Food, Conservation, and Energy Act of 2008 (the "2008 Farm Bill"). The 2008 Farm Bill also includes numerous other programs to help develop renewable energy in rural areas and promote the production of sustainable feedstocks for renewable energy production. Please see this recent alert for specifics.
The Roadmap was prepared by a working group commissioned by DOE. The working group was commissioned to assess the current state of algae technology and to determine the next steps toward commercialization.
DOE is specifically seeking feedback related to the following questions:
- What areas omitted by the Roadmap would be important in defining R&D needs as they pertain to the following topics?
a. Algae biology
b. Algae cultivation
c. Algae processing (harvesting and dewatering)
e. Fuel conversion
f. Fuel end-use
- Are there any additional, key areas that should be included or any areas that need further elaboration?
- Are there errors or misrepresentations of any information that need to be addressed?
- Is there over-representation of certain barrier areas relative to other areas that warrant editing?
To submit comments, complete the "Algal Road-Mapping: Request for Information (RFI) Response Form" and submit it as an attachment to an e-mail message addressed to algaeRFI@go.doe.gov
Comments must be provided by no later than 11:59 PM EDT on August 3, 2009.
Last week DOE released a new funding opportunity announcement for up to $480 million for pilot-scale and demonstration-scale integrated biorefinery projects. An integrated biorefinery uses an “acceptable feedstock” to produce a biofuel or bioproduct as the “primary product.” Acceptable feedstocks include:
- Certain woody biomass
- Renewable plant materials so long as it is not generally intended for use as food
- Crop reside (cobs, stover, etc.)
- Yard and food waste
- Certain post-sorted MSW
The projects must be either pilot-scale (processing at least one dry tonne of feedstock per day) or demonstration-scale (processing at least 50 dry tonnes of feedstock per day).
The maximum award for a pilot-scale project is $25 million and the maximum award for a demonstration-scale project is $50 million. Generally, the cost share requirements from non-Federal sources are 20% for pilot-scale projects and 50% for demonstration-scale projects.
Applications are due June 30, 2009. Although not required, DOE suggests all prospective applicants submit a notice of intent to apply, which can be submitted through May 29, 2009.
On, May 5, 2009, President Obama announced federal efforts to increase investment and use of advanced biofuels. The President signed a Presidential Directive establishing the Biofuels Interagency Working Group, ordering the Department of Agriculture (“USDA”) to implement financing opportunities from the Food Conservation and Energy Act of 2008 (“FCEA”), and announcing additional Recovery Act funds for renewable fuel projects.
The Biofuels Interagency Working Group will be co-chaired by the Secretaries of Agriculture and Energy and the Administrator of the Environmental Protection Agency. The Biofuels Interagency Working Group will coordinate existing policies and identify new policies to support the development of sustainable next-generation biofuels production.
President Obama has directed the USDA to immediately begin restructuring existing renewable fuels investments in order to preserve industry employment and develop a comprehensive approach to accelerate the production of American biofuels. Further, the USDA has 30 days to begin deployment of renewable energy financing opportunities from the FCEA. Financing opportunities under the FCEA include loan guarantees and grants for research, development, construction and retrofitting of demonstration and commercial scale biorefineries.
President Obama also announced that $786.5 million from the American Recovery and Reinvestment Act (for more information on the American Recovery and Reinvestment Act please see Show Me the Money: The Law of the Stimulus) will be used to expand commercial biorefineries and jumpstart advanced biofuels research and development. The money will be divided as follows:
- $480 million for integrated pilot and demonstration scale biorefinery projects
- $176.5 million for commercial-scale biorefinery projects
- $110 million for fundamental research
- $20 million for ethanol research