State Regulation of Biomass Plantings (Florida and Mississippi)

In a previous blog entry, I discussed two recent articles (Quinn et al. 2013 and McCubbins et al. 2013) in which the authors proposed a new scheme for federal and state regulation for oversight over the potential use of noxious weeds or other invasive plant species as biofuel feedstocks. The scheme proposed in these articles would rely heavily on the states, and recommended that all 50 states modify their existing laws and regulations to adopt the most up-to-date scientific assessment tools to determine if a species proposed for planting within the state had noxious or invasive characteristics. These articles mentioned, essentially in passing, that at least two states (Florida and Mississippi) have provisions in their agricultural statutes to make them explicitly applicable to plants intended for use as biofuel feedstocks. In my blog entry, I noted that the Florida law is also broad enough to cover algae used to produce biofuels. In today’s post, I’d like to discuss and comment on these laws.

Let me first mention that, historically, a number of states have enacted laws or regulations for the regulation of biotechnology, and that those laws that are still in force may affect the use of either transgenic plants or modified microorganisms used in the production of biofuels or biobased chemicals. Other states have aquaculture laws that may cover industrial uses of algae. State biotechnology laws began to appear back in the 1980s, when the federal government was developing its biotechnology regulatory framework amidst criticism from some interest groups that there were “gaps” or other deficiencies in the federal approach. Over time, the primary target of these laws became the uses of biotechnology in agriculture and food, particularly covering the so-called “deliberate releases” into the environment of engineered plants and microorganisms, and there are a handful of states that still maintain such regulations in one form or another. (As an aside, I used to track these laws quite closely in the late 1980s and early 1990s, and have written summaries of such laws in the pre-Internet trade press, but I’m planning to devote a future blog entry to a broader summary of existing state laws that might affect the use of plants, microorganisms or algae in biofuel production).

Here are some comments on the Florida and Mississippi biomass planting laws and regulations.

Florida. Florida is one of the states that has had a biotechnology law on the books for some time. This law, Fla. Stat. § 581.083 to 211, required that anyone proposing to grow a “nonnative plant, including a genetically engineered plant or a plant that has been introduced, for purposes of fuel production or purposes other than agriculture in plantings greater in size than 2 contiguous acres” needed to obtain a permit from the Department of Agriculture and Consumer Services Division of Plant Industry (the original version of this law, before the 2012 amendments I’m about to describe, can be accessed here).  Although this law is potentially broad, in covering all transgenic plants and any plant, whether engineered or not, used for energy production, I’m not aware of any controversy surrounding the law until the somewhat unexpected amendment that the legislature adopted last year. As part of a broader energy bill (HB 7117 of 2012), the legislature amended Subsection (4) of  § 581.083, so that it now reads as follows (insertions shown in bold underline, deletions shown in strikeout). Note: “blue-green algae” is another name for cyanobacteria.

A person may not cultivate a nonnative plant, algae, or blue-green algae, including a genetically engineered plant, algae, or blue-green algae or a plant that has been introduced, for purposes of fuel production or purposes other than agriculture in plantings greater in size than 2 contiguous acres, except under a special permit issued by the department through the division, which is the sole agency responsible for issuing such special permits.

It was reported at the time that this change originated with the Agriculture Department, where there was evidently concern within the Division of Plant Industry that large-scale industrial uses of algae were not being adequately regulated.  But perhaps the only company that was immediately impacted by this change was Algenol, which at that time was building its first commercial plant for the manufacture of ethanol from cyanobacterial strains. Algenol, which had already been working extensively with the Agriculture Department’s Division on Aquaculture to obtain permits for its work under Florida aquaculture regulations, now found it needed to obtain an entirely different permit from the Division of Plant Industry (DPI), a different branch of the Agriculture Department. Algenol eventually worked out a solution that was satisfactory to the two different Ag Department divisions which didn’t require duplicative permit requirements for the company, but the situation attracted considerable attention in the spring of 2012 as it played out.  You can follow the story in the Naples Daily News, in articles from March 13, 2012, March 19, 2012 and April 17, 2012.

The current version of the regulations implementing § 581.083 of the Florida Statutes, which is known as Rule 5B-57.011, was adopted in 2008 to expand the list of noxious species and to better specify the requirements for permits. These regulations require applicants to obtain a permit from the DPI for “biomass plantings” of greater than 2 acres, prohibit the granting of a permit for any species on the federal or state noxious weed list, and require permit holders to post a bond to cover the potential cost of removing the plants covered by the permit. The regulations specify that granted permits would contain requirements to institute measures to prevent the spread of the plants, including traps or filters to prevent spread through ditches, a fallow area surrounding the planting zone, and onsite decontamination of equipment. The regulations allow limited exemptions, e.g. for plants intended for use in agriculture or if the plant is judged to be non-invasive after consultation with the University of Florida.

Quinn et al. faults these regulations for not having a scientific base (in particular not requiring any assessment of weediness), and for imposing the same level of scrutiny to non-invasive plants as for invasive species. But again, I’m not aware of any criticism directed at the impact of these regulations on any company’s plans to cultivate bioenergy feedstocks in the state.

It happens that the Florida Agriculture Department DPI has recently proposed extensive revisions to these regulations (the proposed rule can also be accessed at the link for Rule 5B-57.011 shown above). The motivation for these revisions is not clear, although the stated reason is “to address the changes to Section 581.083 [i.e., as implemented in the 2012 legislative amendment] … [and] to improve the permitting process …”. Many of the revisions address administrative issues like introducing certain definitions and specifying procedures for applying for the permits, but the revisions would also expand the number of plant species listed by name on the noxious weed list. The revised regulations provide an apparently new procedure for a permit holder to petition to remove or reduce the level of the security bond that is required to be posted, and would also create a more extensive list of potential exemptions from the DPI permit requirement. Among the more important potential exemptions are a long list of plant species including energy cane and several Eucalyptus species, and a provision that aquatic plants, algae and blue-green algae could be exempt if grown in accordance with best management practices issued by the Agriculture Department’s Division of Aquaculture. This latter provision is important because it embodies what I understand to have been the compromise that allowed Algenol’s plans to go forward last year, and that it may also represent DPI’s intention for how future algae activities would be handled.

These proposed rules were published on February 25, 2013, and have been available for public comment. It is my understanding that there is not a formal comment period, as there is for federal rules, and that a public hearing would only be held if a member of the public requested one, which has not happened for this rule. I understand that the Agriculture Department is hoping to finalize the rules soon, but that they are still open to hear comments from interested parties, including industry.

I don’t know if these proposed revisions would address any of the concerns expressed by Quinn et al., who were writing before the revisions were proposed. I believe that the companies potentially affected by the proposed regulations are trying to understand their impact and decide if comments or proposed changes would be warranted. In my own review of the current and proposed regulations, what jumps out at me is that the stated requirements that would be imposed under any permit (Section 1(f) of the proposed revision to 5B-57.011, but also included in the current regulations) are written to apply primarily to terrestrial plants, and that many of these provisions don’t seem applicable to uses of algae or cyanobacteria. On the other hand, the revised regulations seem to embody the belief that uses of algae or cyanobacteria that fall under the rules would qualify for an exemption if used in compliance with the Best Management Practices of the Division of Aquaculture, so that these detailed permit conditions may not apply.

Mississippi. As noted in Quinn et al., in 2012, the state of Mississippi enacted a bill that included several amendments to its agricultural laws, one of which (Section 4 of House Bill No. 634) created new Section 69-25-10, which is entitled “Cultivation of certain nonnative plant species for purposes of fuel production without special permit prohibited.” The key provision of Section 69-25-10 is:

 No individual or entity, commercial or noncommercial, may cultivate a nonnative plant species, including a genetically engineered plant, for purposes of fuel production or purposes other than agriculture, in plantings greater in size than one (1) acre, except under a special permit issued by the Department of Agriculture and Commerce. Requests for a permit authorized under this section may be denied if the department, in conjunction with specialists at Mississippi State University, determines that the plant is invasive or has potential to constitute a nuisance.

The law goes on to require that applicants requesting a permit put up a surety bond and provide certain information about the species to be cultivated, the location of the planting, and other information. The law specifies that all permits would have a one-year term. This law took effect on July 1, 2012, and later that year, on December 19, 2012, the state adopted regulations to implement the law (Sections 141.01 through 141.05, which can be found within Subpart 3, Chapter 01 of the state’s regulations).  It is interesting to note that there are quite a few similarities between language in the Mississippi law and regulations and the language of the Florida law and regulations. Although much of the text of the Mississippi regulation mirrors that of the legislation, the regulation includes some other provisions, including a prohibition on granting permits for any species on the federal or state noxious weed list, and a limited list of plants for which a permit is not required (e.g. plants grown for food, plants determined not to pose a threat of invasiveness). The regulation includes a detailed list of six types of conditions that the permit may require of the applicant, primarily consisting of management or control measures that may reduce the likelihood of spread of the species beyond the area of cultivation.

The authors of Quinn et al. (whose comments are based on the legislation, not the regulations, which may not have been finalized at the time they were writing) took issue with the law, particularly the provision allowing the state Agriculture Department to deny a permit if the species were found to be “invasive,” but which did not include a definition of “invasive.” The regulation goes into more detail about permit conditions and the potential role of the Agriculture Department and Mississippi State University in determining whether to issue permits, but other than the reference to federal and state noxious weed lists, I don’t believe the regulations are any more specific about what “invasive” means. I have the added concern that the language of the legislation (and by extension, of the regulation as well) includes “a genetically engineered plant”, which could create the presumption that any transgenic plant would need a permit if intended for use in fuel production or “for purposes other than agriculture”. Since most such uses of transgenic plants would also require permits from the U.S. Department of Agriculture, this could create a duplicative permitting requirement that could be burdensome on applicants. I’m not aware of any proposed activities in Mississippi that would be, or have been, impacted by these regulations.

D. Glass Associates, Inc. is a consulting company specializing in government and regulatory affairs support for renewable fuels and industrial biotechnology. David Glass, Ph.D. is a veteran of over thirty years in the biotechnology industry, with expertise in industrial biotechnology regulatory affairs, U.S. and international renewable fuels regulation, patents, technology licensing, and market and technology assessments. Dr. Glass also serves as director of regulatory affairs for Joule Unlimited Technologies, Inc. More information on D. Glass Associates’ regulatory affairs consulting capabilities, and copies of some of Dr. Glass’s prior presentations on biofuels and biotechnology regulation, are available at www.slideshare.net/djglass99 and at www.dglassassociates.com. The views expressed in this blog are those of Dr. Glass and D. Glass Associates and do not represent the views of Joule Unlimited Technologies, Inc. or any other organization with which Dr. Glass is affiliated. Please visit our other blog, Biofuel Policy Watch.

Comments on Proposed Regulatory Scheme for Use of Invasive Plant Species as Biofuel Feedstocks

Recently published articles from a team at the University of Illinois (including its Energy Biosciences Institute) and Virginia Tech (Quinn et al. 2013 and McCubbins et al. 2013, full citations below) discussed whether existing federal and state regulations are sufficient to ensure that noxious or invasive plant species are not grown for large-scale biofuel production. The authors concluded that the existing framework was in fact not sufficient for this purpose, and instead they have suggested a regulatory plan of their own, which would require coordinated action by state legislatures to strengthen individual state noxious weed laws, coupled with strengthened provisions to hold companies liable for environmental damage resulting from introduction of invasive species. 

Specifically, the articles point out the inconsistencies seen in most states between the state’s official noxious weed list, which often forms the basis for regulation, and the lists of potential invasive plant species created by two types of organizations that are found in many states: “invasive plant councils” (IPCs) which are maintained by nongovernmental entities, and “invasive species councils” (ISCs), which are government agencies or advisory bodies. The authors found that, on average, official state noxious weed lists contained only about 20% of the species that are considered invasive by the state’s IPC and/or ISC. Because a plant species would only be regulated if it were found on a federal or state noxious weed list, the authors feel this potentially creates a gap in the regulatory system that could allow invasive species to be grown as an energy crop. The authors suggest a new regulatory regime where each state’s ISCs would be given authority to add species to that state’s noxious weed list, based on assessments of invasiveness using a recently-developed USDA screening tool. This would result in assigning nonnative species to different tiers based on potential invasiveness, requiring different levels of caution corresponding to such potential. The articles further call for industry to adopt a set of good practices to ensure that noxious or invasive species are not developed for use in bioenergy or other applications, coupled with provisions to ensure that companies would have liability for any adverse events or effects arising from their use of an invasive species.

This issue has real-world implications, in view of the current interest in using Arundo donax, also known as “giant reed”, as a feedstock for cellulosic ethanol production. At least one commercial ethanol plant that would utilize Arundo as a feedstock is under construction, and the EPA is currently reviewing the desirability of accepting a pathway of producing ethanol from Arundo under the Renewable Fuel Standard (an excellent recent summary of the pros and cons of the use of Arundo donax can be found here). Although EPA has been reviewing this proposed pathway for some time, the agency recently decided to omit this pathway from its 2013 rule-making proposal, opting for further study of the issues (this issue was briefly discussed in an earlier post on Biofuel Policy Watch).

These articles raise several questions, including the following:

Is the existing regulatory regime adequate, and if not, how should it be fixed?

The articles raise some good points from a scientific perspective, because (speaking in the abstract) it makes sense for new plant species to be screened for their invasiveness potential before they are cultivated on a large scale. Plant species that are found to have the potential to be invasive should not be used on a large scale as energy crops, unless suitable controls or management protocols are in place to prevent adverse environmental effects. In addition, proposals to genetically modify such species might raise additional concerns, although these would be reviewed and assessed when permits for field tests or expanded field use are reviewed, for example under USDA’s biotechnology regulations.  In either case, the remedy should be a requirement to use a safe management protocol rather than an outright prohibition on use of the crop, except in unusual circumstances.

However, without an intimate knowledge of all the species on the various lists, it is hard to know what number of the 80-plus percent of species found on ISC lists but not noxious weed lists present a risk. It is also possible, especially in large states, that a species found on an ISC or IPC list may only be invasive in specific regions or ecological zones within the state, and may not have invasive characteristics if grown elsewhere. So, the concern raised by the authors may only be a hypothetical one, and it may be that, in most or all states, the species found on the lists that trigger regulation are indeed the ones that are the most invasive or otherwise problematic.

What is the role for the federal government vs. the states? Should invasiveness be a criterion considered in EPA decisions such as approving new RFS pathways?

On the one hand, invasiveness must certainly be evaluated on a site-specific basis, since a species invasive in one state may not be invasive or at all problematic in another. On the other hand, development of useful energy crops may be hindered if it is governed by a patchwork of state laws, which argues for some federal role. The short answer is that both levels of regulation will likely come into play. In addition to the applicability of state laws, a federal role may emerge if the proposed use of a biofuel feedstock species entails a “major federal action” such as a regulatory decision or the use of federal grant or contract funds. In those cases, the relevant federal agency must conduct an environmental assessment under the National Environmental Policy Act (NEPA) that would necessarily take invasiveness or noxiousness into account. This may be one factor in EPA’s ongoing review of the proposed Arundo donax pathway under the RFS (although EPA actions don’t trigger NEPA reviews per se, but are considered by law to afford the equivalent environmental assessment); and it would certainly be the case for a genetically modified plant of a potentially invasive species that might be subject to USDA’s biotechnology regulations. Should this be the case for any proposed use, it is hoped that adequate communication and coordination between federal and state regulators would avoid duplicative or conflicting requirements.

The articles also raise another point, which is that certain states (Florida and Mississippi) have explicit provisions in their agricultural statutes to make them applicable to plants used as biofuel feedstocks. The Florida law, in fact, is also broad enough to cover algae used to produce biofuels. This is an interesting topic that is worth exploring at length, and I intend to discuss these laws in a future blog post.

Are safe growth management practices possible or feasible? Can industry utilize voluntary compliance/management schemes rather than submit to mandatory regulation?

Yes – companies might decide to adopt such a plan voluntarily, or be required to utilize such a plan for certain species as a condition of whatever regulatory approval may be needed for a given project. The University of North Carolina Biofuels Center has developed a growth management plan for Arundo, and there are no doubt other examples. Such plans could be adopted and would be expected to be effective, certainly for smaller-scale energy crop plantations, although one must be aware of the possibility that such plans could be harder to implement successfully at larger scale. It seems that use of growth management practices is more desirable than outright prohibitions, particularly since novel energy feedstocks would usually be developed for commercial use only gradually, beginning with small outdoor plots or field tests, so that any ecological issues could be detected before the species is grown at large scale.

Is the authors’ suggested regulatory scheme desirable and feasible?

The authors make a good case that the current system of state regulation is a patchwork that may not ensure adequate, consistent protection against inappropriate use of invasive species. However, finding the path towards standardizing or coordinating 50 different state policies seems quite implausible. It also seems quite unlikely that all 50 state legislatures could revise their regulatory schemes to be more reliant on cutting-edge science (especially in today’s political climate!). It’s also worth noting that different states have different concerns – for example island states or territories like Hawaii and Puerto Rico are unusually sensitive about encroachment of nonnative species, so there will inevitably be differences between states, although this may not matter from the authors’ perspective. So, the authors’ proposal has little likelihood of being enacted in the real world, as they themselves acknowledge in the papers.

The authors also suggest a stronger liability standard for companies developing invasive species as energy feedstocks, in the event their actions lead to environmental harm. Since I’m not a lawyer and not conversant with the laws of environmental liability, I can’t comment in detail on this aspect of the proposal, but I would imagine that existing laws would provide some remedy in the event that significant environmental damage were caused by a company’s negligent activities. I’d also observe that overly stringent liability provisions, with the possibility of hefty financial penalties, could serve as a strong deterrent to the development of novel energy feedstocks, and so any revision to current liability provisions should balance this consideration against the need for adequate environmental protection.

Conclusions

These articles clearly raise issues that are deserving of discussion, and the authors have done a service in calling attention to the issues. At the end of the day, I don’t think the authors’ proposed approach of a 50-state solution is politically or realistically feasible (which they themselves acknowledge). Short of such a regulatory overhaul, the best approach would be for energy crop developers to consult with appropriate state regulators at an early stage, to ensure that the species, or the method in which it is to be grown, does not pose environmental (or regulatory) problems, and for companies to voluntarily adopt best practices for growth and management of potentially invasive species. Finally, the fact that the large-scale use of such plant species will often encounter some federal government involvement means that in most cases the possible environmental impacts of the use of the species will be considered as part of an overall environmental assessment.

Citations for the articles:

L.D. Quinn, et al. (2013) “Navigating the “Noxious”  and “Invasive” Regulatory Landscape: Suggestions for Improved Regulation” Bioscience 63(2): 124-131.

J.S.N. McCubbins, et al. (2013) “Frayed Seams in the Patchwork Quilt of American Federalism: An Empirical Analysis of Invasive Plant Species Regulation”) Environmental Law 43(1): 35-81.

D. Glass Associates, Inc. is a consulting company specializing in government and regulatory affairs support for renewable fuels and industrial biotechnology. David Glass, Ph.D. is a veteran of over thirty years in the biotechnology industry, with expertise in industrial biotechnology regulatory affairs, U.S. and international renewable fuels regulation, patents, technology licensing, and market and technology assessments. Dr. Glass also serves as director of regulatory affairs for Joule Unlimited Technologies, Inc. More information on D. Glass Associates’ regulatory affairs consulting capabilities, and copies of some of Dr. Glass’s prior presentations on biofuels and biotechnology regulation, are available at www.slideshare.net/djglass99 and at www.dglassassociates.com. The views expressed in this blog are those of Dr. Glass and D. Glass Associates and do not represent the views of Joule Unlimited Technologies, Inc. or any other organization with which Dr. Glass is affiliated. Please visit our other blog, Biofuel Policy Watch.