Biofuel groups oppose EPA motion to remand SREs without vacatur

Growth Energy, Renewable Fuels Association, National Corn Growers Association, National Biodiesel Board, American Coalition for Ethanol, and National Farmers Union on Sept. 7 filed a motion with the U.S. Court of Appeals for the D.C. Circuit opposing the U.S. EPA’s Aug. 25 motion to remand, but not vacate, 31 small refinery exemptions (SREs) granted for Renewable Fuel Standard compliance year 2018 by the Trump Administration in 2019.

The motion was filed as part of a pending case brought against the EPA by Sinclair Wyoming Refining Co. in September 2019 challenging the EPA’s Aug. 9, 2019 decision on 36 SRE petitions, 31 of which were approved. Sinclair’s SRE petition was among those denied by the agency.

In its Aug. 25 motion, the EPA cites the Tenth Circuit Court of Appeals’ January 2020 decision on SREs and the U.S. Supreme Court’s June 25 decision that overturned one of the three major findings of that Tenth Circuit Court ruling. The agency said “voluntary remand without vacatur will allow EPA the opportunity to reconsider its action in light of these intervening decisions.”

“Following the Supreme Court’s decision, EPA plans to consider what, if any, impact the remaining holdings in the Tenth Circuit’s decision may have on EPA’s implementation of the small refinery exemption provision generally, and what, if any, resulting impact that may have on the small refinery petitions adjudicated in the Decision and challenged here,” the EPA said in the motion

In the Sept. 7 motion, the six biofuel and ag groups say they do not oppose the remand so long as the challenged agency actions are vacated. The motion also cites the need for the court to set a deadline for reconsideration of the SRE petitions.

“While it is encouraging that EPA intends to reconsider the 31 SREs granted for the 2018 compliance year, we must oppose EPA’s motion to remand without a deadline and without addressing the SREs’ ongoing damage to the biofuel industry,” the biofuel and ag groups said in a Sept. 8 statement. “In addition to seeking a remand of the SREs, the Biden Administration EPA should ask that they be vacated; or at the very least, EPA should ask the court to set a deadline by which the reconsideration of these petitions must be completed. This would allow the Biden Administration EPA to hit the reset button and conduct a new evaluation of each 2018 SRE request in light of the 10th Circuit Court decision in Renewable Fuels Association et al. v. EPA and the recent Supreme Court decision overturning one piece of the 10th Circuit decision. We are looking to the Biden Administration to renew the bond with farmers and rural economies by restoring certainty and integrity to the RFS.”  

Two motions were also filed on Sept. 7 by oil groups opposing EPA’s efforts to reconsider the 31 SREs. One was filed by American Refining Group Inc., Calumet Montana Refining LLC, Calumet Shreveport Refining LLC, Ergon Refining Inc., Hunt Refining Company, Par Hawaii Refining, LLC, Sinclair Casper Refining Company, Sinclair Wyoming Refining Company, U.S. Oil & Refining Company and Wyoming Refining Company. The other was filed by Kern Oil and Refining Co.