The Biomass Crop Assistance Program: Orchestrating the Government's First Significant Step to Incentivize Biomass Production for Renewable Energy

• Date: 01 January 2010

40 ELR 10066 ENVIRONMENTAL LAW REPORTER 1-2010

The Biomass Crop

Assistance Program:

Orchestrating the

Government’s First

Signif‌icant Step to

Incentivize Biomass

Production for

Renewable Energy

by Jody M. Endres, Timothy A. Slating,

and Christopher J. Miller

Jody M. Endres is Senior Regulatory Associate, Energy

Biosciences Institute, University of Illinois at Urbana-

Champaign. Timothy A. Slating and Christopher J. Miller

are Research Assistants, Energy Biosciences Institute,

University of Illinois at Urbana-Champaign and J.D.

Candidates 2010, University of Illinois College of Law.

Editors’ Summary

Rapidly emerging renewable energy legislation in t he United

States wi ll create unprecedented demand for bioma ss feed-

stock. In 20 08, C ongress created t he Biomass Crop Assis-

tance Program (BCA P). Program implementation, however,

has been fraug ht with delays. USDA has yet to de signate

project areas that govern establishment and annual pro-

duction payments, the newly issued draft EIS leaves some

important questions unanswered, and the federa l govern-

ment lacks an integrated biomass deployment strategy.

Only timely and thoughtful deployment of BCAP funding,

coupled with a coordinated federal strategy, will secure the

commercialization of biomass so critica l to America’s future

renewable energy needs.

Federal eorts to reduce greenhouse gas (GHG) emis-

sions have accelerated greatly with the inauguration of

the Barack Obama Administration and a new Demo-

cratic majority in the U.S. Congress. ese GHG initiatives

and related sustainability concerns have raised signicantly

the prole of biomass1 as a feedstock for rene wable energy.

While Congress continues to debate the best strategy to

mitigate climate change,2 the U.S. Environmental Protec-

tion Agency (EPA) has moved quickly and on many fronts

throughout 2009 to regulate GHGs. In April of this year,

EPA issued a nding that GHGs endanger public health and

welfare, a prerequisite to regulation under the Clean Air Act

(CAA).3 In May 2009, EPA issued its draft rule implement-

ing the Energ y Independence and Security Act’s (EISA’s)

2007 revised Renewable Fuel Standard (RFS), which dictates

increased levels of renewable f uels from cellulosic biomass.4

At the sa me time, EPA and the U.S. Department of Trans-

portation (DOT)5 proposed that auto manufacturers receive

credit for ex-fuel light-dut y vehicle production against new

Corporate Average Fuel Economy (CAFE) standards that

will include, for the rst time, GHG emission restrictions.6

On October 30, 2009, EPA nalized a mandatory GHG

reporting rule for certain source c ategories, including petro-

leum reners, importers, and exporters.7 Renewable f uels

will benet directly from this regulation to the extent that

reporting raises the cost of conventiona l gasoline. In addi-

tion to the reporting rule, EPA has proposed permitting

1. e U.S. Department of Energy (DOE) generally denes biomass as “agri-

cultural and forestry residues, municipal solid wastes, industrial wastes, and

terrestrial and aquatic crops grown solely for energy purposes.” U.S. DOE,

Biomass FAQs, http://www1.eere.energy.gov/biomass/biomass_basics_faqs.

html. Depending on the statute, however, some sources may be excluded from

the denition of biomass.  note 60 (providing the denition of

“renewable biomass” under the Biomass Crop Assistance Program (BCAP)).

2. See American Clean Energy and Security Act of 2009, H.R. 2454 (passed

June 26, 2009; reported in the U.S. Senate July 6, 2009); Clean Energy

Jobs and American Power Act, S. 1733 (introduced Sept. 30, 2009), http://

frwebgate.acces s.gpo.gov/cgi-bin/getdoc.cgi?dbnam e=111_cong_reports&

docid=f:hr137.111.pdf.

3. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618. Proposed Endanger-

ment and Cause or Contribute Findings for Greenhouse Gasses Under Section

202(a) of the Clean Air Act; Proposed Rule, 74 Fed. Reg. 18886 (Apr. 24,

2009) (to be codied at 40 C.F.R. ch. 1). EPA sent its nal proposal to the

Oce of Management and Budget for review on November 6, 2009. See Tom

Doggett, 2 Endangerment Finding to White House, R, Nov. 9,

2009.

4. Energy Independence and Security Act of 2007, Pub. L. No. 110-140, 121

Stat. 1492 (2007) [hereinafter EISA]; Regulation of Fuels and Fuel Additives;

Changes to Renewable Fuel Standard Program, Proposed Rule, 74 Fed. Reg.

24804 (May 26, 2009) (to be codied at 40 C.F.R. pt. 80).

5. e National Highway Trac Safety Administration (NHSTA) is responsible

for the standard within the DOT.

6. Proposed Rulemaking to Establish Light-Duty Vehicle Greenhouse Gas Emis-

sion Standards and Corporate Average Fuel Economy Standards; Proposed

Rule, 74 Fed. Reg. 49531 (Sept. 28, 2009) (to be codied at 40 C.F.R. pts. 86

and 600).

7. Mandatory Reporting of Greenhouse Gases, Final Rule, 74 Fed. Reg. 56260

(Oct. 30, 2009) (to be codied at 40 C.F.R. pts. 86, 87, 89, 90, 94, 98, 1033,

1039, 1042, 1048, 1051, 1054, and 1065).

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.