The Renewable Fuels Association will file a legal challenge to any new small-refinery exemptions the EPA issues going forward, the group announced in a letter to EPA Administrator Andrew Wheeler on Tuesday.
Earlier this week a news report indicated the Trump administration may grant at least some exemptions in response to 32 pending requests for 2019.
RFA President and Chief Executive Officer Geoff Cooper said in a letter to Wheeler the group is ready to act.
"The Renewable Fuels Association hereby provides notice of its intent to challenge any action the Environmental Protection Agency takes to grant small-refinery exemptions under the Renewable Fuel Standard for the 2019 compliance year," the letter said.
"We submit this notice in advance of EPA's action(s) due to the secret nature of EPA's exemption decisions and because we intend to seek time-sensitive injunctive relief. We ask that EPA stay effectiveness of any exemptions granted during the pendency of potential litigation, such that EPA would not reinstate the Renewable Identification Numbers retired for compliance by newly exempt refineries until the court has resolved the legal challenge. If EPA cannot agree to a stay, we would file a motion for a stay with the court and would ask that EPA not take action to reinstate RINs until the court has ruled on the motion."
In recent days the Supreme Court granted review to two refining companies that have challenged a ruling made on SREs by the U.S. Court of Appeals for the 10th Circuit in Denver. The appeals court ruled EPA acted illegally in granting three exemptions in 2016.
"It makes no sense to consider granting any exemptions unless and until that decision is modified," Cooper said in the letter to Wheeler.
"Nor should the agency consider granting exemptions when it has consistently asserted that RIN compliance costs are passed through to wholesale purchasers, making it impossible to reconcile with a finding of disproportionate economic hardship, as the 10th Circuit also found. With just eight days remaining under the current administration, it makes no sense to take actions that will impact the incoming administration, which has been clear in its disapproval of the unwarranted expansion of what were to be temporary compliance exemptions early in the RFS program.
"The current administration's unwarranted and unprecedented expansion of small-refinery exemptions over the last four years has only served to destabilize the RIN and commodity markets and spawn litigation that hurts America's farmers and wastes taxpayer resources. We therefore request that EPA refrain from taking any action on the pending 2019 small refinery exemption requests until the Supreme Court has determined whether to affirm the 10th Circuit's ruling, or at least until the new administration is in place."
Todd Neeley can be reached at email@example.com
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