Court extends deadline to challenge SRE ruling until March 24

By Erin Voegele | March 10, 2020

The Trump administration will have 15 additional days to decide whether to challenge a Jan. 24 ruling by the Tenth Circuit Court of Appeals that struck down three small refinery exemptions (SREs) approved by the U.S. EPA.

The court approved a motion March 9 filed by the U.S. Department of Justice March 5 seeking a 15-day extension of the deadline to file a petition for rehearing and/or rehearing en banc. The original deadline to challenge the court’s ruling was March 9. That deadline has now been extended to March 24. The court said it will not grant any additional extensions of the deadline.

In its motion, the justice department said “the extension of time is necessary to allow the United States an opportunity to determine whether, and to what extent, the government will file a petition for rehearing en banc in this case.” The motion also notes the court’s Jan. 24 decision “alters EPA’s interpretation and practice, which has been employed in the adjudication of past exemption petitions from many small refineries” and states the court’s interpretation of Renewable Fuel Standard regulation “could also have significant practical impacts on the RFS program going forward.” Due to these factors, the justice department said “the United States requires more time to consider whether to file a petition for rehearing en banc on this issue.”

The court’s Jan. 24 ruling, if implemented nationally, would significantly lower the number of small refineries that are eligible to apply for exemptions to their RFS blending requirements. This is because the court ruled that the EPA cannot extend exemptions to any small refineries whose earlier, temporary exemptions had lapsed. The court also found that the EPA abused its discretion in failing to explain how the agency concluded that a small refinery might suffer a disproportionate economic hardship when the agency has simultaneously consistently maintained that costs for renewable identification numbers (RINs) are passed through and recovered by those same refineries.

Federal lawmakers representing oil producing and refining states have pressured the Trump administration in recent weeks to appeal the Tenth Circuit Court’s finding and continue the EPA’s current SRE policy. A group of 13 senators sent a letter to Trump on Feb. 27 asking him to intervene in the issue and appeal the court’s decision. The following week, nine senators sent a letter to U.S. EPA Administrator Andrew Wheeler, urging the agency to appeal the court’s decision and continue to issue SREs.

Representatives of the U.S. biofuels industry have been calling on Trump to stand by the RFS and implement the court’s decision, halting the EPA’s abuse of SREs. The National Corn Growers Association, the Renewable Fuels Association, the American Soybean Association, the National Farmers Union, Growth Energy, the American Coalition for Ethanol, the National Biodiesel Board, the Iowa Renewable Fuels Association and Fuels America issued a joint statement March 5 urging the White House to keep its promises regarding the RFS.

“The president needs to understand that Ted Cruz doesn’t care about this administration or families across the heartland who are counting on the White House to keep its promises,” said the groups in the statement. “Just days ago, thousands of farmers rallied behind Secretary Perdue, who expressed his confidence that we had finally reached the end of a long and painful fight against EPA demand destruction. Tearing open that wound, against the advice of rural champions and the president’s own advisors, would be viewed as a stunning betrayal of America’s rural workers and farmers. We cannot stress enough how important this decision is to the future of the rural economy and to President Trump’s relationship with leaders and voters across the heartland. Ted Cruz comes back year after year with the same lies about refinery profits, disproven over and over by economists, the EPA, and even by Big Oil. We urge the president to stand up now against this misguided effort to torpedo the rural recovery.”


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