Following the January decision by the Ninth US Circuit Court of Appeals to deny rehearing en banc in the litigation regarding California’s Low Carbon Fuel Standard (LCFS), the Renewable Fuels Association (RFA) and Growth Energy are petitioning the US Supreme Court for certiorari to make a final determination relating to the LCFS.

RFA and Growth Energy moved forward with a Supreme Court challenge after a divided panel of the Ninth Circuit Court of Appeals reversed a District Court (O’Neill, J.) finding that the California LCFS discriminates against interstate commerce and constitutes extraterritorial regulation in violation of the Commerce Clause.

In 2010, two ethanol trade groups—the Renewable Fuels Association (RFA) and Growth Energy—filed a complaint in Federal District Court in Fresno, California, challenging the constitutionality of the California Low Carbon Fuel Standard (LCFS). The two organizations argued that, as structured, the LCFS violates both the Supremacy Clause and the Commerce Clause of the US Constitution. The LCFS calls for at least a 10% reduction from 2006 levels in the carbon intensity (measured in gCO2e/MJ) of California’s transportation fuels by 2020.

At then end of 2011, Federal District Judge Lawrence J. O’Neill, Eastern District of California, ruled that the LCFS program was indeed in violation of the Commerce Clause of the US Constitution and issued an injunction prohibiting its enforcement.

California, through adoption of the LCFS, has violated the most basic, structural features of interstate federalism. LCFS not only discriminates against out-of-state commerce, but it seeks to regulate conduct in other States in direct contravention of our constitutional structure and at the direct expense of Midwestern farmers and ethanol producers.