RFA, Growth Energy demand transparency in SRE process

In a court filing on Jan. 5, the Renewable Fuels Association and Growth Energy continued to call on the U.S. EPA and the U.S. Department of Energy to release the names and locations of refineries granted exemptions from their Renewable Fuel Standard blending obligations.

The filing was made as part of a legal challenge that has been ongoing for more than two years. The RFA and Growth Energy filed a lawsuit with the U.S. District Court for the District of Columbia on Aug. 30, 2018, alleging that the EPA and DOE have improperly denied agency records requested by the two biofuel groups and others under the Freedom of Information Act. The requested documents relate to the names and locations of refineries that have been granted small refinery exemptions (SREs) by the EPA. The FOIA requests to not seek commercial information or financial data that might otherwise be exempt from public disclosure under FOIA.  

In October 2020, the RFA and Growth Energy filed a motion for partial summary judgement “on the ground that there are no material facts in genuine dispute and that, as a matter of law, defendant [EPA] has failed to carry its burden of proving that certain information it redacted from records produced in response to plaintiff’s FOIA rests is exempt from mandatory disclosure under FOIA.”

The EPA and DOE filed a memorandum in opposition to RFA and Growth Energy’s motion for a partial summary judgement in mid-December. In that filing, the defendants argue that revealing the names and locations of refineries that filed SRE petitions “would reveal confidential, commercial information concerning these business’ operations and economic conditions,” which they said falls squarely within the terms of FOIA exemption 4 pursuant to a recent U.S. Supreme Court decision.

According to the U.S. Department of Justice, exemption 4 of the FOIA protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”

In its Jan. 5 filing, the RFA and Growth Energy said Congress enacted the FOIA to require disclosure when it will “contribut[e] significantly to public understanding of the operations or activities of the government.” The biofuel groups argue that disclosure of the requested information is necessary “because EPA has created a body of ‘intentionally shrouded and hidden agency law’ to evade review of its misuse of [SREs] under the [RFS].”

“By invoking exemption 4 to avoid disclosure of the names and locations of the companies and refineries that EPA has granted or denied exemptions for compliance with the RFS, EPA is in effect arguing that whether a private entity is subject to a regulatory requirement is itself confidential information by the private entity. That is absurd,” the RFA and Growth Energy said in the filing.

Geoff Cooper, president and CEO of the RFA, and Emily Skor, CEO of Growth Energy, issued a joint statement on the following. “The public has a right to know which companies are receiving waivers from their Clean Air Act obligations and skirting requirements to blend cleaner, greener renewable fuels like ethanol. It is disingenuous for EPA to suggest that the names and locations of the exempted refineries constitute confidential business information, especially when the agency itself has twice proposed to publicly disclose this information,” they said. “We will not stop our efforts to bring transparency to this process until the shroud of secrecy has been lifted on the small refinery exemption program.”