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.

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

  1. Advanced BioFuels USA » How to Ensure Biofuel Crops Don’t Become Weeds

  2. EPA issues Final Rule for controversial RFS pathways – Advanced Biotechnology for Biofuels

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