Three Strikes on RFS Waivers: History Behind the 2027 Speculation
Governors have petitioned EPA three times to waive the Renewable Fuel Standard — and three times the agency said no, setting a causation bar that shapes today’s biodiesel mandate debate
As talk builds that anti-RFS groups may be recruiting governors to seek relief from the record 2026-27 biomass-based diesel mandates, the history is worth remembering: gubernatorial waiver requests have come in three waves, and EPA rejected every one.
The Texas opener, 2008. The first test came from Texas Gov. Rick Perry, who asked EPA on April 25, 2008, to waive a portion of the RFS under Clean Air Act section 211(o)(7) — a 50% cut to the corn ethanol mandate, arguing the RFS was driving up the cost of corn fed to livestock and raising food prices. EPA took extra time beyond the 90-day statutory window and denied the request on Aug. 7, 2008. That denial did lasting damage to future petitioners by articulating the standard that still governs: harm must be severe, and the RFS itself must cause it.
The drought coalition, 2012. The second wave was broader — governors from ten states sought a waiver, arguing the historic drought was damaging their economies by diverting scarce corn to ethanol production. The formal petitions came from Arkansas Gov. Mike Beebe and North Carolina Gov. Bev Perdue, with Maryland’s Martin O’Malley, Delaware’s Jack Markell, and the governors of Georgia and New Mexico joining, alongside 156 House members, 34 senators, and a coalition of livestock, poultry, meat, dairy and feed groups. EPA denied the requests in November 2012, concluding the congressional requirements for a waiver had not been met and that waiving the RFS would have minimal impact on ethanol demand. The agency made clear that finding severe economic harm was not enough — implementing the RFS had to be the cause, not merely a contributing factor alongside the drought.
The oil-state pivot, 2020. The third round flipped the political geography from livestock states to refining states. Louisiana Gov. John Bel Edwards filed on April 7, 2020, followed by an April 15 joint letter from Texas Gov. Greg Abbott, Utah Gov. Gary Herbert, Oklahoma Gov. Kevin Stitt and Wyoming Gov. Mark Gordon, and a similar letter from Pennsylvania Gov. Tom Wolf on May 11 — six governors citing COVID-19’s collapse of fuel demand as a severe threat to their refining sectors. The petitions foundered on the same causation logic: the governors themselves acknowledged the harm was driven by the pandemic, not the RFS. EPA opened public comment one day before the Biden inauguration, and the requests were subsequently denied.
Why 2026 could be different. Every prior gubernatorial petition rested on the severe-economic-harm prong and pointed to an external shock — corn prices, drought, a pandemic — as the real culprit, which is precisely why each failed. But sources note a petition aimed at the 2027 biodiesel mandate could instead invoke the inadequate-domestic-supply prong, a route none of the three prior waves seriously pursued. If D4 RIN generation genuinely cannot reach the mandated pace — and first-quarter 2026 data suggest the industry is well behind — that argument stands on firmer legal ground than anything Perry, Beebe or Abbott brought to the agency. Notably, EPA wrote into the Set 2 final rule that it retains legal authority to waive volumes in the future under the relevant waiver authorities should circumstances warrant. Three strikes have not ended the game; they have simply taught the next batter where to swing.
