The Environmental Protection Agency is requesting a one-month extension with the Supreme Court before it responds in a case that the agency's leader says has the potential to change how it allocates small refinery exemptions.
The case is a refiners’ petition for review of a decision posted earlier this year by the 10th Circuit court. The case — Hollyfrontier Cheyenne, et. al. v. Renewable Fuels Association, et, al. — was filed in the nation’s highest court Sept. 4 and the original response from the government was due Nov. 12. The extension request would push that deadline to Dec. 14.
Biofuel groups fear the extension will further delay action on small refinery exemptions and the 2021 renewable fuel volumes rule. The EPA has yet to act on 48 small refinery petitions dating back to the 2011 compliance year for the nation's biofuel mandate. Renewable Fuels Association President and CEO Geoff Cooper said he was surprised to see EPA weighing in on the decision.
“EPA decided not to get involved in earlier efforts for a rehearing of that properly decided opinion, so it’s unclear why EPA would want to weigh in now," Cooper said in a statement to reporters. "If EPA decides to take a position on the request for further judicial review, we hope it’s to convey such review is unnecessary and falls far short of the established standards for Supreme Court’s involvement."
While he feels this is a standard request, National Biodiesel Board spokesman Paul Winters told Agri-Pulse delays by EPA to act on SREs are creating “undue certainty” for the biofuel sector.
“The request for extension guarantees that the Court won’t have an opportunity to conference on this case until after the new year, pushing any decision or further action beyond that,” Winters said in an email. “EPA Administrator (Andrew) Wheeler points to this case as a reason to delay decisions on the pending small refinery petitions as well as the 2021 rule.”
EPA lawyers say an extension was requested to “complete preparation of the government’s response, which was delayed because of heavy press of earlier assigned cases to the attorneys handling of this matter,” a letter to the court clerk read.
Representatives for HollyFrontier and the American Fuel and Petrochemical Manufacturers did not immediately respond to requests for comment.
The case stems from a 10th Circuit Court of Appeals ruling that struck down three small refinery exemptions, but offered broader rationale to restrict far more SREs going forward.
In January, the court struck down the SREs, finding the waivers were improperly granted by EPA. The court said the agency could not “extend” exemptions to any small refineries whose earlier, temporary exemptions had lapsed.
That was the case for a Cheyenne, Wyo., refinery that had an SRE in 2012 but did not apply for anther waiver in 2013 or 2014. The facility then applied for an extension of the previous SRE for the 2015 compliance year, which the court assumes "for the purposes of this opinion" it received — EPA does not publicly disclose SRE recipients — after a denial was remanded back to the agency following a separate SRE lawsuit.
The ruling later stated the EPA exceeded its statutory authority in granting those petitions because there was nothing for the agency to “extend.”
The agency also has yet to release proposals for annual 2021 Renewable Fuel Standard volumes that must be finalized by November 30.
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