Ag, Biofuels Groups Ask Appeals Court to Restore 1.43 Billion Gallons to the Renewable Fuel Standard

Source: By Todd Neeley, DTN Staff Reporter • Posted: Tuesday, December 8, 2020

A coalition of ethanol and agriculture interests asked a federal court on Monday to vacate EPA’s granting of 31 small-refinery exemptions in 2018, alleging the agency did not conduct the proper review of those requests.

In all, the groups asked the U.S. Court of Appeals for the District of Columbia Circuit to restore about 1.43 billion gallons of ethanol demand to the Renewable Fuel Standard, according to EPA’s own estimates of biofuels not blended in gasoline as a result of the exemptions.

Growth Energy, Renewable Fuels Association, National Corn Growers Association, National Biodiesel Board, American Coalition for Ethanol, and National Farmers Union asked the court in a brief to require the agency to add the exempted gallons back into the 2021 volume requirements.

The court action comes about one week after Renewable Fuels Association President and Chief Executive Officer Geoff Cooper called on the Trump administration to allow the next administration to set the 2021 volumes. The 2021 volumes were required by law to be finalized on Nov. 30.

In particular, the groups are seeking a vacation of the exemptions because they allege the EPA changed course in its approval process.

“Unlike in past years, EPA issued a single memorandum expressing its decision for all of the petitions for 2018,” the lawsuit said.

“Like in past years, though, EPA did not publicly disclose its decision document. The document came to light only when EPA attached it to a brief that it filed in another lawsuit in the 10th Circuit (appeals court in Denver). The 2018 SRE Decision does not mention any refineries by name or provide analysis of any individual petition.”

In its decision at the time, the EPA announced categorically granted full exemptions for the 2018 petitions.

The brief said EPA granted full exemptions to 2018 petitions where the U.S. Department of Energy recommended 100% relief citing “disproportionate economic hardship” as a reason. Also, the EPA granted full exemptions for refineries where DOE recommended just 50% relief.

In a press statement issued on Tuesday, the groups said the EPA did not provide its own refinery-by-refinery analysis of the exemption requests. In addition, the groups argue the agency lacked authority to extend small-refinery exemptions that had lapsed.

“Among all of EPA’s indefensible actions surrounding small refinery exemptions in recent years, the agency’s two-page decision to grant 31 waivers from 2018 RFS compliance really takes the cake,” the groups said in a press statement.

“Enough is enough. The EPA had absolutely no legal basis for continuing to destroy demand for renewable fuels, which is contrary to the intent of Congress for the RFS program. When it adopted the RFS in 2005, Congress clearly intended for small refinery exemptions to be temporary in nature. Yet, 15 years later, some refiners — most of whom have readily complied with RFS obligations in the past — are trying to claim they need more time to prepare for compliance with RFS requirements. If these exemptions were meant to be a ‘bridge to compliance,’ as concluded by the courts, it should be obvious that we all crossed that bridge many years ago.”

In previous years, EPA would respond separately to each small- refinery exemption petition with several pages of analysis on the individual refinery’s unique circumstances.

“However, for the 2018 exemptions, EPA announced its decisions on more than three dozen refinery petitions in a single, two-page memorandum issued by Acting Assistant Administrator Anne Idsal,” the groups said in a news release.

“That brevity alone reflects EPA’s reflexive reaction to exempt oil interests from compliance whenever they asked without justification.”

Todd Neeley can be reached at