Trump admin moves to throw out RFS waivers suit

Source: Amanda Reilly, E&E News reporter • Posted: Tuesday, July 17, 2018

The Trump administration on Friday asked a federal court to throw out a lawsuit over EPA’s decision to exempt refiners from annual renewable fuel requirements.

Government lawyers raised procedural arguments against the suit in the U.S. Court of Appeals for the District of Columbia Circuit, including that it did not challenge a “final” agency action.

“In the absence of a discrete, identifiable action, this Court lacks subject-matter jurisdiction,” lawyers for EPA argued in a motion to dismiss.

At issue is a petition that the Advanced Biofuels Association filed in the D.C. Circuit in May seeking review of EPA’s waivers for more than two dozen small refineries.

Under the renewable fuel standard and in coordination with the Energy Department, EPA can grant waivers exempting small refiners that demonstrate economic hardship from meeting biofuel-blending targets. Refiners can also meet the yearly biofuel mandates by buying renewable fuel credits.

EPA has said it has granted exemptions for around 25 refineries. The agency, though, hasn’t disclosed which refineries receive waivers because it says doing so would reveal private business information.

The advanced biofuels group says it’s concerned that the number of exemptions for compliance years 2016 to 2017 doubled compared with previous years and that EPA arbitrarily changed the criteria for determining economic hardship tied to RFS requirements (Climatewire, July 16).

EPA’s decision to grant “a historically unparalleled number of exemptions has destabilized the national renewable fuels market,” the group’s May petition says.

But the Trump administration argues that the suit is a “generic challenge” to EPA’s evaluation of hardship petitions. While EPA acknowledges that it’s taken final action on individual RFS hardship waivers, the administration says the advanced biofuel group’s lawsuit amounts to a programmatic challenge.

“The Supreme Court and this Court have held that such programmatic challenges are precluded by the requirement for ‘final action,'” the government’s motion to dismiss says.

The government argues that the group must challenge individual exemptions in local circuit courts, not the D.C. Circuit.

A coalition of ethanol groups has separately filed a lawsuit in the 10th U.S. Circuit Court of Appeals seeking review of EPA’s decision to grant three waivers to refineries in Oklahoma, Wyoming and Utah.