Comment on FR Doc # E7-18153

PROPOSED RULE: Docket ID: EERE-2007-BT-STD-0014 Document ID: EERE-2007-BT-STD-0014-0001 DEPARTMENT OF ENERGY, Office of Energy Efficiency and Renewable Energy, 10 CFR Part 490 RIN 1904-AB69 Alternative Fuel Transportation Program; Private and Local Government Fleet Determination QUESTION PRESENTED: Is the Department of Energy (DOE) correct in determining that a regulatory requirement for the owners and operators of certain private and local government fleets to acquire alternative fueled vehicles (AFVs) is not ?necessary? to achieve the Energy Policy Act of 1992?s (EPAct 1992) Replacement Fuel Goal? Is it also correct in asserting that, as a result, it cannot issue such a requirement? BRIEF VERSION OF COMMENT: No. Review of three factors, 1) the facts of DOE's earlier application of the Replacement Fuel Goals to interested parties, 2) the congressional intent behind the Replacement Fuel Goals, and 3) a reasonable alternative construal of the relevant statutory provisions, all indicate that DOE is incorrect in asserting that a regulatory requirement is unnecessary to achieve Congress?s Replacement Fuel Goal in a timely fashion. The Proposed Rule?s interpretation of a key provision of EPAct 1992 (42 U.S.C. ? 13257(e)(1)(a- b)) that a Fleet Requirement Program is not ?necessary? is factually flawed, given the demonstrated failure of voluntary action to carry out Congress? original Fuel Goal. It additionally demonstrates an unreasonably narrow construal of the Statute?s definition of ?necessity.? Id. Furthermore, it suggests on the part of DOE an attitude of apathy towards effectuating Congressional intent. Finally, because this Comment?s interpretation of 42 U.S.C. ? 13257(e)(1)(a-b)?that a Requirement Program is ?necessary? and thus mandated?is at least a possible or reasonable construal of statutory language, this Comment removes the basis for the Proposed Rule?s subsequent assertion that DOE is not permitted to create a Requirement Program. COMMENT: CONGRESSIONAL INTENT REQUIRES THE DOE TO ACT IN A MANNER MOST COMPATIBLE WITH ACHIEVING ENERGY EFFICIENCY GOALS IN A TIMELY FASHION, AND FAILURE TO INSTITUTE REGULATORY REQUIREMENTS WILL HAVE THE INEVITABLE RESULT OF DELAYING COMPLIANCE WITH THE GOALS Congress?s clear intent in establishing the Energy Policy Act of 1992, 42 U.S.C. ?? 13201 et seq., was to establish a comprehensive scheme for shifting the public and private transportation sectors to a lessened dependence on petroleum fuels, thereby achieving environmental, economic, and national security benefits. See H. Rep. No. 102-474(I), reprinted in 1992 U.S.C.C.A.N. 1954, 1955, 1959, 102nd Cong., 2nd Sess. (1992). The Act addresses the ?direct link between the level and type of energy consumption and the quality of the environment.? Id. at 1955. The numbers set out by Congress speak for the speed with which Congress intended DOE to ensure compliance: within 14 years of the Act?s passage, Congress intended all fleets other than Federal, State, and AFV Provider Fleets (which were held to even higher standards under 42 U.S.C. ?13251) to achieve replacement fuels in 70% of their vehicles. 42 U.S.C. ? 13257 (a)(1)(F). DOE is currently miles behind meeting the mark Congress set for compliance in these areas, so it has responded by eviscerating Congress? goals. In a prior Rulemaking, DOE extended the original requirement to achieve 30% compliance by 2010 to the new requirement that private and local government fleets must still meet only that basic 30% requirement by 2030. See 72 FR 12041. Where Congress intended to allow for DOE to revisit the goals from time to time, (See 42 U.S.C. 13257(e)(2)) DOE has interpreted this permissive element as broad permission to lower fuel repl acement goals to such an extent as to require next to nothing of public and government actors (as we see in DOE?s failure to compel action during the initial compliance period, and its refusal to heighten compliance standards during its extended compliance period). The inevitable conclusion to be drawn from this doubling of the compliance period is that DOE has failed to carry out the will of Congress. DOE?s subsequent refusal to institute a Requirement Program for compliance deepens this failure and controverts the purpose of the EPAct 1992. THE STATUTE'S MANDATORY LANGUAGE CAN BE READ TO REQUIRE A REQUIREMENT PROGRAM, SO THE PROPOSED RULE IS INCORRECT IN ASSERTING THAT THE STATUTE DOES NOT PERMIT A REQUIREMENT PROGRAM DOE?s Proposed Rule ignores the obvious when it asserts that voluntary action will be sufficient to bring private and local government fleets into compliance with the Goals, such that a Requirement Program is not ?necessary? under 42 U.S.C. ? 13257(e)(1)(a-b). Indeed, this seems a particularly egregious moment of ignoring-the-obvious, given DOE?s recent extension of the 30% compliance goal to 2030 based on the total failure of voluntary action on the part of private and local government sector transportation fleets to meet Congressional goals. This factual interpretation made by DOE, that voluntary action will suffice, will serve to deepen what is already a notable evisceration of Congress? original standards and timelines for compliance. Indeed, application of current facts (specifically, DOE?s recent extension of the compliance period), to 42 U.S.C. ? 13257(e)(1)(a-b)?s definition of ?necessity? can result in the reasonable conclusion that a regulatory Requirement Program is ?necessary? and thus mandated by Congress in this case, as a reasonable person would be uncertain as to whether voluntary action alone will suffice to bring actors into compliance. The EPAct 1992 states in mandatory terms: Such a [fleet requirement] program shall be considered necessary and a rule therefor shall be promulgated if the Secretary finds that-- (A) the goal of replacement fuel use [?] is not expected to be actually achieved by 2010, or such other date as is established under section 13254 [?] by voluntary means or pursuant to [?] any other law without such a fleet requirement program [?]; and (B) such goal is practicable and actually achievable [during the given period--30% compliance by 2030] [?] through implementation of such a fleet requirement program in combination with voluntary means and the application of other programs relevant to achieving such goals. 42 U.S.C. ? 13257(e)(1)(a-b)[emphasis added]. In short, if the two prong test for ?necessity? of a requirement program is satisfied, creation of a requirement program is thus required of DOE. The two prongs of the test are: A) The Replacement Fuel Goal ?is not expected to be actually achieved? by voluntary action on the part of private and government actors by the date set (originally 2010, now 2030) and 2) It is possible to achieve the Goal through a combination of a) a Fleet Requirement Program, b) voluntary efforts, and c) other relevant programs. If these two prongs are satisfied, then the DOE must institute such a Requirement. A reasonable application of the facts to the language of the Statute results in the conclusion that a Requirement Program is ?necessary? and thus mandated by Congress. The first prong of the Requirement test is satisfied by the uncertainty that reasonably surrounds the question of voluntary compliance, based on the total failure of voluntary action during the first statutory period spanning from1992 to 2010. The second prong of the Requirement test is satisfied as well by the practicability of the Goals if a regulatory Requirement Program is instituted; it is clear that if DOE does step up and institute a meaningful Requirement Program, then this regulatory Requirement, operating collectively with voluntary actions and other relevant government programs, could certainly be capable of meeting the goals. DOE?s INTERPRETATION OF THE STATUTE IS UNREASONABLY NARROW, GIVEN THE FACTS--IT LOOKS ONLY AT SHEER POSSIBILITY RATHER THAN AT LIKELIHOOD The logic of the Proposed Rule presumes that, because it is technically possible that voluntary action could meet the mark by 2030 without regulatory enforcement, the fact that it may be highly unlikely to do so without a regulatory ?nudge? is deemed irrelevant. The Proposed Rule thus operates upon a very narrow interpretation of 42 U.S.C. ? 13257(e)(1)(a-b) that views Fleet Requirement regulation as only permitted where the desired result is absolutely and utterly impossible without the regulation. If the desired outcome is at all possible without the requirement, the Proposed Rule presumes the Requirement Program is thus barred. This rationale ignores the basic reality that while desired outcomes may be possible they may also be highly unlikely without regulations to give actors a nudge towards compliance. EVEN IF VOLUNTARY ACTION IS CAPABLE OF MEETING THE MARK BY 2030, IT WOULD BE COHERENT WITH CONGRESS'S GOALS FOR DOE TO INSTITUTE A REQUIREMENT PROGRAM IMMEDIATELY, SO THAT THE GOALS COULD BE MET CLOSER TO CONGRESS'S INTENDED 2010 TIMELINE (SOONER THAN 23 YEARS FROM NOW, IN 2030) DOE appears to presume that, in spite of the total failure of voluntary action during the previous compliance period, the force of voluntary action will suddenly soon increase, presumably propelled by rising fuel costs and the increasing affordability of energy efficient vehicles. Based upon this presumption DOE deems that a Requirement Program will not be ?necessary? for meeting the Goals by 2030, and so DOE may not institute such a program. Even if DOE turns out to be correct in its faith that voluntary action will suddenly become effective, DOE is already guilty of permitting serious delays in compliance. This history of inaction makes its unwillingness to speed up the process of compliance by immediately instituting a Requirement Program a deplorable flouting of Congress? clear intent that energy efficiency should be met as swiftly as possible.