The Renewable Fuels Association and Growth Energy on May 20 filed a petition with the U.S. Supreme Court requesting a review of the Fifth Circuit Court of Appeals’ November 2023 opinion regarding the U.S. EPA’s denial of several small refinery exemption (SRE) petitions. 

The EPA in April 2022 denied 36 SREs that had been filed under the Renewable Fuel Standard. The agency in June 2022 denied 69 additional SRE petitions. Those SRE petitions had been filed by 36 small refineries located in 18 states, according to Growth Energy. 

Small refineries challenged the denials in the Third, Fifth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuit Courts. All regional circuits except the Fifth Circuit concluded that only the D.C. Circuit was the proper venue to hear the challenges and either dismissed or transferred the challenges to the D.C. Circuit. The D.C. Circuit challenge remains pending.

The Fifth Circuit, however, held that the venue in that court was proper and vacated the EPA’s denials for the refineries that brought challenges in that court. The Fifth Court’s decision, handed down in November 2023, was a divided 2-1 opinion. 

The RFA intervened in the Fifth Circuit Case, arguing that the Fifth Circuit was not an appropriate venue for the challenge because SREs are nationally applicable and have nationwide scope or effect. The dissenting opinion in the November 2023 ruling agreed that the Fifth Circuit was an inappropriate venue and the challenge should have instead been heard in the D.C. Circuit, according to RFA. 

Both Growth Energy and the RFA in early January 2024 filed a petitions with the Fifth Circuit Court of Appeals requesting rehearings regarding the November 2023 opinion. Those petitions were denied by the court later that month. 

The petition filed by the two biofuel groups with the Supreme Court on May 20 asks the court to determine whether an action by the EPA is “’nationally applicable’ or ‘based on a determination of nationwide scope or effect’ for purposes of laying venue under 42 U.S.C. §7607(b)(1) when the action uses a common legal requirement and a general factual finding to resolve all pending ‘small refinery’ petitions for exemption from annual obligations under the Renewable Fuel Program irrespective of the petitioning refineries’ location.”

“As our petition makes clear, the Fifth Circuit never should have heard this challenge brought by refiners,” said Geoff Cooper, president and CEO of the RFA. “EPA decisions on small refinery exemption petitions are inherently national in scope because the RFS establishes proportional renewable fuel volume requirements for every obligated party in the nation. When an exemption is granted, regardless of where the refinery is located, a nationwide shortfall of renewable fuel blending is created. As underscored by five other Circuit Courts and the dissenting opinion in the Fifth Circuit, the D.C. Circuit is obviously the only proper venue for reviewing EPA’s denial of small refinery exemption petitions. The Supreme Court should overturn the Fifth Circuit’s flawed opinion and ensure that any SRE challenges are considered by the singular D.C. Circuit venue.”

“There’s a simple reason why the Third, Seventh, Ninth, Tenth, and Eleventh Circuits have all found that EPA’s SRE decisions should be litigated in the D.C. Circuit. SREs have nationwide impacts on the entire U.S. renewable fuels market, and EPA has developed and applied a nationwide SRE policy to assess them,” said Emily Skor, CEO of Growth Energy. “The Supreme Court should take up our petition and overturn the Fifth Circuit’s opinion to ensure that SRE review is governed by a single court whose decisions apply nationwide. Furthermore, the Court should not allow oil industry interests to take advantage of a fragmented system of judicial review and forum shop for more favorable courts at the expense of a coherent SRE program. Only by funneling SRE challenges to the D.C. Circuit can we ensure consistent, nationwide SRE policy and avoid regulatory and market uncertainty for the nation’s transportation fuel supply.”

A full copy of the May 20 petition is available on Growth Energy’s website.