Court rejects petitions for rehearing en banc of SRE ruling

By Erin Voegele | April 07, 2020

The Tenth Circuit Court of Appeals rejected two petitions April 7 filed by Wynnewood Refining and HollyFrontier March 24 requesting a rehearing en banc of the court’s Jan. 24 ruling striking down three small refinery exemptions (SREs) that had been approved by the U.S. EPA.

The court’s Jan. 24 ruling, if implemented nationally, would significantly lower the number of small refineries eligible to apply for exemptions to their Renewable Fuel Standard 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 could conclude 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.

“Both the HollyFrontier Petition and the Wynnewood petition were transmitted to all non-recused judges of the court who are in regular service,” said the court in an April 7 filing. “As no member of the panel and non-recused judge in regular active service requested that the court be polled, the requests for rehearing en banc are denied pursuant to Fed. R. App. P. 35(f).”

The court ruling stems from a May 2018 challenge brought against EPA by the American Coalition for Ethanol, Renewable Fuels Association, the National Corn Growers Association, and National Farmers Union.

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