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Biofuels, Agriculture Groups Petition Appeals Court on Small-Refinery Waivers

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Biofuels and agriculture groups have asked a federal court to proceed on a small-refinery waivers lawsuit. (DTN filed photo)

Several biofuels and agriculture interest groups asked the U.S. Court of Appeals for the District of Columbia Circuit on Wednesday to move forward on a lawsuit filed more than one year ago challenging the EPA's issuance of small-refinery waivers to the Renewable Fuel Standard.

The petition filed by Growth Energy, the Renewable Fuels Association, the American Coalition for Ethanol, National Biodiesel Board, National Corn Growers Association, Biotechnology Innovation Organization and the National Farmers Union, comes on the same day the agency is holding a hearing on the latest RFS volumes proposal.

The groups asked the court to lift a stay it placed on a 2018 joint petition filed by the groups.

The original petition asked for the stay to give EPA time to review its request to reconsider its current regulations.

"EPA's response never arrived, but EPA's statements and actions over the past 13 months indicate that EPA has effectively denied the request," the groups said in a news release on Wednesday.

The groups asked the court to set a briefing schedule on the lawsuit.

The original lawsuit asked EPA to revise the RFS to account for small-refinery exemptions the agency issues retroactively.

Since 2016, the EPA has granted more than 50 waivers totaling more than 2.6 billion ethanol-equivalent gallons not blended in the fuel supply. The EPA and USDA currently are reviewing the program on the orders of President Donald Trump. The agency is expected to announce its decision on 38 pending waiver requests for 2018 in the next few weeks.

EPA currently factors in only future small-refinery exemptions granted prior to the compliance year, despite that most exemptions granted in recent years have been for compliance periods that already ended.

"Thirteen months have passed since the filing of the petition, without even a proposed substantive response from EPA," the latest petition said. "Meanwhile, the agency has shown through various actions that it is not genuinely considering the coalition's administrative petition and has in effect denied it."

Even in the most recent renewable volume obligations proposal the EPA has decided not to account for waivers granted in the latest volumes.

"In the absence of any direct action from EPA, the coalition asked the court to require the agency to reconsider how its RFS regulations account for retroactive small-refinery exemptions," the groups said in a news release.

"The coalition maintains that exemptions granted after a final RVO rule should be accounted for in the following year's volume obligations and that volumes lost to small refineries then be redistributed among other non-exempt obligated parties. In other words, small-refinery exemptions --whether they are granted before, during, or after the compliance year -- should be accounted for similarly."

The groups said in the petition, "EPA's actions are particularly inexcusable given the time-sensitive nature of the annual RVO and percentage standard setting process. By failing to act on the coalition's request, EPA violated a statutory ‘right to timely decision making’ implicit in the agency's regulatory scheme that will result in the coalition being ‘irreparably harmed through delay.’"

Read the petition here:…

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