EPA Administrator: RFS Waiver Requests to Wait on Court Appeal

Source: By John Herath, AgPro • Posted: Tuesday, November 3, 2020

The Environmental Protection Agency (EPA) is considering 35 oil refiner requests to waive required blending of renewable fuels, namely ethanol, for the 2019 and 2020 calendar years, according to reporting data on the EPA website. Those waiver requests will not be considered until the courts weigh in on a pending court appeal, according to EPA Administrator Andrew Wheeler.

The Tenth Circuit Federal Appeals Court in January ruled EPA could not grant Renewable Fuels Standard (RFS) waivers for refiners whose earlier, temporary waivers had lapsed. The oil industry has since appealed that ruling.

Wheeler said on the AgriTalk Radio Show on Monday that he will not consider those waiver requests until after the courts have spoken on that appeal.

“The refiners appealed that to the Supreme Court; we’re waiting to see if they take it up, and what they do with that,” Wheeler said. ”What I don’t want to be in a position of doing is making a decision one way or the other and then have the court instruct me to reverse it, because it’s much worse to reverse a decision afterwards than it is to just wait for the court to decide. So, I think it would be inappropriate for me to either grant or deny them until that litigation has completely run its course.”

EPA is also considering an additional 17 so-called “gap year” waiver requests, an attempt to get around the Tenth Circuit decision by filling in the years between the initial waiver requests and the current waiver applications. Wheeler said those applications cannot be ruled on by EPA until the Department of Energy completes its review of the requests. EPA earlier this year denied 54 gap year waiver requests and is widely expected to do the same with the remaining 17.

But the hold on the 2019 and 2020 waivers was met with concern from the Renewable Fuels Association (RFA).

“It’s not surprising to hear this excuse from EPA, but it is disappointing,” RFA President and CEO Geoff Cooper told AgWeb. “EPA knows as well as anyone that the chances of the Supreme Court deciding to review the Tenth Circuit decision are incredibly low. The Agency itself didn’t seek an appeal in the Tenth Circuit or in the Supreme Court, which tells me they know the odds of an appeal succeeding are slim to none. It’s time to move forward and put an end to the uncertainty and instability that have plagued EPA’s management of the RFS for the past year. EPA should immediately reject the 17 remaining ‘gap year’ waiver petitions, adopt the Tenth Circuit decision nationwide, and immediately apply the decision to the 35 pending requests for 2019 and 2020 compliance exemptions. Enough is enough.”