California’s Office of Administrative Law disapproves CARB’s changes to LCFS

California’s Office of Administrative Law has disapproved amendments to the state’s Low Carbon Fuel Standard, which the California Air Resources Board proposed last summer and adopted in November.

OAL, whose mission is to ensure agency regulations are clear, necessary, legally valid and available to the public, had until Feb. 18 to make a final determination on the LCFS amendments.

The office issued CARB a Notice of Disapproval of Regulatory Action on Feb. 18.

“CARB anticipates receiving more information from OAL detailing its reasons for the decision soon,” the agency stated.

In the notice of disapproval, OAL has identified inconsistencies of specific regulatory-amendment provisions with the clarity standard in government code section 11349(c).

CARB said its staff plans to address the concerns raised by OAL and resubmit the LCFS amendments.

“As outlined in government code section 11349.4, CARB may rewrite and resubmit the amendments to OAL within 120 days of its receipt of OAL’s written decision,” CARB stated. “Grammatical and other non-substantial changes will be added to the rulemaking record.”

CARB said any substantive modifications will be released for public comment.

In August, CARB proposed several significant modifications to the LCFS program.

The proposals included a step change in carbon intensity (CI) reduction targets in one year and a contentious 20 percent companywide cap on biofuels from virgin crop oils like soybeans, canola and sunflower.

CARB sought to modify the near-term increase in stringency to a 9 percent CI reduction in 2025 from the 5 percent year-to-year increase included in an earlier amendment proposal.

Industry experts told Biobased Diesel Daily® in August that a 20 percent companywide cap on crop-based biofuels was unsubstantiated and would be more restrictive than a program-total cap.

A 15-day public-comment period opened in August after the proposal was published.

CARB approved the amendments Nov. 8.

The updates set targets to reduce the CI of California’s transportation fuel pool by 30 percent by 2030 and by 90 percent by 2045.  

The amendments also increase support for zero-emissions infrastructure, including for medium- and heavy-duty vehicles, and make more transit agencies eligible to generate credits. 

Through these amendments, CARB was clearly sending long-term market signals to phase out combustion fuels and increase “zero-emission” (electric) transportation options, which disconcerts those advocating for greater biofuel consumption.

Since the LCFS was adopted in 2009, California fleets have used increasing amounts of biobased diesel to lower emissions and lessen reliance on fossil fuels.  

Now, 15 years later, 75 percent of the state’s diesel pool is renewable and responsible for 45 percent of California’s progress under the LCFS, according to Clean Fuels Alliance America.

“Our team is dedicated to engaging with CARB to ensure that the latest science informs clear, effective regulations that support the biomass-based diesel industry and market stability,” said Jeff Earl, director of state governmental affairs at Clean Fuels. “We will continue to keep our members and stakeholders informed as new developments emerge.”

CARB said Feb. 18 that it will continue to implement the current version of the LCFS regulation, which became effective in July 2020, while working to address the issues identified by OAL.