Ethanol Blog

Ethanol Today: Courts, Courts and More Courts

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Until the EPA can review the system is uses to determine which small refineries receive waivers to the Renewable Fuels Standard, a biofuels interest group this week asked a federal court to issue an injunction on the agency's ability to approve additional waivers.

Waivers issued during the past two-plus years has, by EPA's own estimate, affected about 2.6 billion gallons in biofuels. It remains a subject of debate as to whether this means all of those gallons were not blended with gasoline. Because the number of biofuels gallons blended in gasoline actually fell for the first time in 20 years, it appears as if the waivers have had an effect.

On Wednesday, the Advanced Biofuels Association asked the U.S. Court of Appeals for the District of Columbia Circuit in Washington, to stop the agency from approving additional waivers.

"Since ABFA filed its petition in May of 2018, 40 small refineries submitted petitions to EPA seeking exemptions from the RFS program for compliance year 2018," the group said in a court motion.

"Administrator (Andrew) Wheeler recently testified that EPA will receive exemption recommendations from the Department of Energy 'any day now' and will issue final exemption decisions quickly 'on a rolling basis.' Absent an injunction, therefore, EPA will issue final decisions on many -- perhaps all -- of the 40 pending petitions based on its unlawful modified criteria before this court can reach a decision on the merits of ABFA's petition after briefing concludes on June 12, 2019."

The ABFA filed a legal challenge last year, attempting to force EPA to reconsider the method used to make waiver determinations.

"Furthermore, ABFA can show that EPA is granting 'extensions' of exemptions to small refineries that did not receive -- and often did not bother to apply for -- exemptions in preceding years," ABFA said in its motion. "EPA is poised to apply its new methodology to the 40 pending petitions, meaning dozens of small refineries will again receive exemptions to which they are not legally entitled.

"For the first time in 40 years, however, the volume of renewable transportation fuel consumed in the U.S. is flat or declining. This reversal was caused by deliberate efforts by respondents, the U.S. Environmental Protection Agency and its Administrator Andrew Wheeler, to dismantle the Clean Air Act's Renewable Fuel Standards Program by unlawfully exempting, through the application of a new evaluation criteria, dozens of small petroleum refineries from complying with renewable fuel mandates based on dubious claims of 'economic hardship.' EPA's unlawful actions produced a massive transfer of wealth from renewable fuel producers to petroleum refineries that did not previously apply for exemptions, knowing that they did not qualify."

The saga continues.

Speaking of biofuels and legal action, with the public comment period for the E15/Renewable Identification Numbers reform rule ending on Monday, an American Petroleum Institute spokesperson made it official on Thursday: The group will file a legal challenge once the rule is finalized.

"There's no question we're challenging the rule from a legal standpoint," API Vice President of Downstream and Industry Operations Frank Macchiarola said during a call with reporters.

In addition, the API has asked the EPA for a 30-day extension of the public comment period. Though Macchiarola said it is needed to study the effects of the rule that would allow year-round E15 sales, extending the public comment period would make it unlikely the agency could finalize the rule in time for the start of the summer driving season on June 1.

Delay tactic? Seemingly.

Todd Neeley can be reached at

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