National Biodiesel Board v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 27, 2016 Decided December 20, 2016

No. 15-1072

NATIONAL BIODIESEL BOARD,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

On Petitions for Review of Administrative Actions of the

United States Environmental Protection Agency

Consolidated with 15-1073

_____

Bryan M. Killian argued the cause for petitioner. With him

on the briefs were David B. Salmons and Sandra P. Franco.

Perry M. Rosen, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief was

John C. Cruden, Assistant Attorney General, and Susan

Stahle, Of Counsel, U.S. Environmental Protection Agency.

Before: TATEL, BROWN, and KAVANAUGH, Circuit Judges.

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Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Petitioner, a trade association

representing the domestic biofuel industry, challenges the

Environmental Protection Agency’s decision to allow a group

of Argentine biofuel producers and other companies to use

certain recordkeeping practices in connection with sales of

their product in the United States. Petitioner separately

challenges the regulation, promulgated in 2010, pursuant to

which EPA granted the Argentine application. Although this

case implicates a pressing international issue—whether EPA

is meeting its responsibility to protect against harmful global

land-use changes resulting from our country’s demand for

renewable fuels—we can resolve it on familiar terrain.

Petitioner’s challenge to the 2010 regulation is untimely, and

EPA’s decision to grant the Argentine application was neither

arbitrary nor capricious, as it comports with agency

regulations and rests upon the kind of highly technical

judgments to which we owe agencies great deference.

I.

Established by Congress in 2005, the Renewable Fuel

Standard (RFS) program requires transportation fuel—the

kind used in cars and sold at gas stations—to include specific

amounts of “renewable fuel” made from planted crops, trees,

animal waste, algae, or other alternatives to traditional fossil

fuels. Energy Policy Act of 2005, Pub. L. No. 109–58,

§ 1501, 119 Stat. 594 (codified as amended at 42 U.S.C.

§ 7545(o)). In 2007, Congress amended the program both to

significantly increase use of renewable fuel and to ensure this

increase would reduce greenhouse-gas emissions and thereby

“lower the risk of climate change.” 75 Fed. Reg. 14,670,

14,799; see id. at 14,673, 14,843; Energy Independence and

Security Act of 2007, Pub. L. No. 110–140, §§ 201–204, 121

Stat. 1492 (codified as amended at 42 U.S.C. § 7545(o)).

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Specifically, recognizing that demand for renewable fuels

might spur land-use changes like deforestation, which

exacerbate greenhouse-gas emissions and wreak ecological

harm, Congress mandated that renewable fuel from planted

crops come from agricultural land already cleared or

cultivated prior to the 2007 statute’s enactment. 42 U.S.C.

§ 7545(o)(I)(i). See e.g., 75 Fed. Reg. at 14,692.

In order to accomplish this objective, Congress defined

“renewable fuel” as “fuel that is produced from renewable

biomass” and specified that “renewable biomass” means, as

relevant here, “[p]lanted crops and crop residue harvested

from agricultural land cleared or cultivated at any time prior

to December 19, 2007, that is either actively managed or

fallow, and nonforested.” 42 U.S.C. §§ 7545(o)(1)(J),

(o)(1)(I)(i).

To implement the RFS program, the statute directs EPA

to “promulgate regulations to ensure that gasoline sold or

introduced into commerce in the United States . . . contains

the applicable volume of renewable

fuel,” id. § 7545 (o)(2)(A)(i), including “compliance

provisions applicable to refineries, blenders, distributors, and

importers” of renewable fuels, id. § 7545(o)(2)(A)(iii)(I).

Pursuant to that authority, EPA took the actions challenged

here.

Renewable fuel is made from plant material, known as

feedstock, typically sent from farms to grain elevators, then to

crushers, and eventually to fuel producers, who transform it

into renewable fuel. Biofuel produced abroad and intended for

use by domestic refiners—the subject of this litigation—is

often sent from producers to importers, who then sell the

renewable fuel for incorporation into domestic transportation

fuel.

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Under the RFS program, producers and importers of

renewable fuel generate “Renewable Identification Numbers”

(RINs)—codes that correspond to batches of fuel. See 40

C.F.R. §§ 80.1452, 80.1426. In turn, refiners and importers

acquire RINs to demonstrate that they have introduced into

the transportation-fuel supply the requisite amount of

renewable fuel. 42 U.S.C. § 7545(o)(3)(B)(ii)(I); see 40

C.F.R. § 80.1405(c); Hermes Consolidated, LLC v. EPA, 787

F.3d 568, 572 (D.C. Cir. 2015) (describing the RFS program).

In 2010, EPA promulgated a final rule that imposes

recordkeeping requirements on RIN-generating producers and

importers in order to verify that crops used in renewable fuel

production come from qualified land, i.e., land in cultivation

prior to December 19, 2007. 75 Fed. Reg. at 14,699–701; 40

C.F.R. § 80.1454. The Rule gives producers and importers

three options. 40 C.F.R. §§ 80.1454(c)(1), (g), (h).

The first, individual tracking, requires producers or

importers to keep, but not provide to EPA unless requested,

(1) “[m]aps or electronic data identifying the boundaries of

the land” where each type of feedstock was harvested, (2)

“commercial documents showing the quantity of feedstock

purchased from each area . . . and showing each transfer of

custody from the location where it was produced to the

renewable fuel production facility,” and (3) records sufficient

to verify that the feedstock came from land cleared or

cultivated prior to December 19, 2007, such as sales records.

Id. § 80.1454(c)(1).

The second option, aggregate compliance, excuses from

recordkeeping requirements “any producer or RIN-generating

importer” in a country subject to an approved aggregate

compliance plan. Id. § 80.1454(g). A country is eligible for

the aggregate compliance approach if EPA determines that its

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total amount of agricultural land is no higher than it was in

2007. See id. § 80.1457 (establishing the petition process for

the aggregate compliance approach for foreign counties).

United States domestic renewable-fuel producers are currently

exempt from recordkeeping requirements based on EPA’s

finding that total U.S. agricultural land has not exceeded its

2007 baseline. Id. § 80.1454(g). Only one foreign country—

Canada—has sought and obtained an approved aggregate

compliance regime. 76 Fed. Reg. 14,007.

A third option—the one at issue here —is the alternative

tracking requirement. 40 C.F.R. § 80.1454(h). Under this

provision, a “foreign or domestic renewable fuel producer or

RIN-generating importer” can participate in an industry-

funded program in which an “independent third party

conduct[s] a comprehensive program of annual compliance

surveys . . . to be carried out in accordance with a survey plan

which has been approved by EPA.” Id. §§ (h), (h)(1). The

independent surveyor must perform “feedstock audits of

renewable fuel production and import facilities” and “[o]btain

the records and product transfer documents associated with

the feedstocks being audited.” Id. §§ (h)(3)(i)–(ii). The

surveyor must “[c]onfirm that feedstocks used to produce

RIN-generating renewable fuels” come from qualifying land,

and “[i]mmediately notify EPA” of noncompliance. Id.

§§ (h)(3)(iv)–(vi). Overall, annual surveys must be

“representative” of the entities in the survey area and

“[d]esigned to achieve the same level of quality assurance”—

that is, the same level of confidence that renewable fuels

come from qualified land—as the individual tracking and

aggregate compliance options. Id. §§ (h)(2)(iii)–(iv).

In 2012, the Argentine Chamber of Biofuels (CARBIO),

a nonprofit association of biodiesel producers, soybean

growers, warehouses, and oil-crushing mills, submitted a

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comprehensive survey program for EPA’s approval as an

alternative tracking program. In considering the application,

EPA required CARBIO to answer many questions about its

proposal and submit additional materials in the form of seven

addenda. Some two-and-a-half years later, EPA approved the

application, finding that CARBIO’s proposal satisfied section

80.1454(h)’s requirements.

The plan works like this. Using historical satellite

images, CARBIO begins by identifying land cleared or

cultivated prior to 2007. CARBIO then classifies these lands

as either “go areas,” from which feedstock may be used, or

“no go areas.” When feedstock arrives at a crushing plant,

each shipment is inspected—using a document known as a

carta de porte, or waybill—to ensure that the zip code of

origination matches an identified go area. If ineligible land

falls within a zip code, no feedstock from that zip code may

qualify. The plan calls for the independent surveyor to visit

each producer and crushing plant at least once a year, as well

as some five percent of grain elevators and farms. Any

feedstock supplier, such as a farm or grain elevator, not

visited in a given year will submit to a desk audit of its

product-transfer documents to verify compliance with the

Rule’s qualified-land restriction.

On November 13, 2013, while EPA was considering

CARBIO’s proposal, Petitioner National Biodiesel Board

(NBB) sent a letter to EPA expressing concern about the

viability of enforcing an alternative tracking program abroad

and requesting that EPA “provide the public with notice and

comment on any proposed survey plan for foreign feedstocks

and production before EPA takes any action.” On January 27,

2015, EPA approved the CARBIO proposal and responded to

NBB, explaining that “[g]iven the significant notice and

comment process used to develop [the recordkeeping]

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regulations,” the agency “d[id] not find it appropriate to create

additional notice and comment processes for each plan

approval as you suggested in your letter.”

NBB then filed these petitions for review. In case number

15-1073, Petitioner seeks review of the 2010 Rule that

established the alternative tracking program. 75 Fed. Reg.

14,670. In case number 15-1072, Petitioner challenges EPA’s

approval of CARBIO’s alternative tracking proposal. We

consolidated the cases and heard them together at oral

argument.

II.

EPA offers a threshold objection to the petitions for

review—that NBB lacks Article III standing. In response,

NBB asserts that it has standing on behalf of its members:

domestic producers who will suffer injury as a result of

increased competition from Argentine biodiesel.

Article III standing requires “injury in fact” that is “actual

or imminent” and “fairly . . . trace[able] to the challenged

action of the defendant” as well as “likely . . . redress[able] by

a favorable decision.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61 (1992) (internal citations and quotation

marks omitted). Under the doctrine of competitor standing,

economic actors “suffer constitutional injury in fact when

agencies lift regulatory restrictions on their competitors or

otherwise allow increased competition.” Louisiana Energy

and Power Authority v. FERC, 141 F.3d 364, 367 (D.C. Cir.

1998). An association, such as NBB, may represent the

interests of its members if—the issue here—“at least one of

[its] members has standing to sue in [its] . . . own right.” See

American Library Association v. FCC, 401 F.3d 489, 492

(D.C. Cir. 2005).

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This case differs little from Delta Construction v. EPA,

783 F.3d 1291 (D.C. Cir. 2015) (per curiam), in which we

held that an importer and seller of a vegetable-based fuel

suffered constitutional injury as a result of “EPA regulations

that incentivize[d] other renewable fuels like electricity sold

by its competitors.” Id. at 1299. Here it is “self-evident” that

NBB members meet the constitutional prerequisites of injury,

causation, and redressability, as approval of the CARBIO plan

incentivizes importation of renewable fuels that will compete

with domestic production, and an order vacating that approval

would eliminate the resultant competitive harm. Id. at 1299–

1300 (quoting White Stallion Energy Center, LLC v. EPA, 748

F.3d 1222, 1256 (D.C. Cir. 2014), cert granted on other

grounds sub nom. Michigan v. EPA, 135 S. Ct. 702 (2014)).

Declarations submitted by NBB confirm that its members

“compete with imports” in the U.S. biodiesel market.

With standing established, we turn to Petitioner’s

challenges.

III.

We begin with NBB’s attack on section 80.1454(h),

which EPA promulgated in 2010. 75 Fed. Reg. 14,670. EPA

argues that the challenge is untimely.

Section 307(b)(1) of the Clean Air Act provides that a

petition for review of any nationally applicable regulations:

shall be filed within sixty days from the date notice

of such promulgation, approval, or action appears in

the Federal Register, except that if such petition is

based solely on grounds arising after such sixtieth

day, then any petition for review under this

subsection shall be filed within sixty days after such

grounds arise.

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42 U.S.C. § 7607(b)(1). NBB failed to challenge the Rule

until it initiated this action some five years after notice was

promulgated—despite exhaustively commenting during the

rulemaking process and then even intervening on behalf of

EPA in support of the Rule in a lawsuit before this circuit.

National Petrochemical and Refiners Association v. EPA, 630

F.3d 145 (D.C. Cir. 2010). NBB nonetheless maintains that,

for several reasons, its challenge to the Rule is timely.

First, NBB notes that section 307(b)(1)’s provision for

judicial review after the initial sixty days “if such petition is

based solely on grounds arising after,” 42 U.S.C.

§ 7607(b)(1), includes “the occurrence of an event that ripens

a claim.” American Road & Transportation Builders

Association v. EPA, 588 F.3d 1109, 1113 (D.C. Cir. 2009). It

follows, says NBB, that approval of the CARBIO proposal

conferred on it a newly ripened claim because until that point

it had no idea that EPA would “interpret its regulation in an

arbitrary way” that would injure its members. Petitioner’s

Br. 52.

On this point, NBB relies on our decision in Coalition for

Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 129–32

(D.C. Cir. 2012), aff’d in part, rev’d in part sub nom. Utility

Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014), in

which we held that section 307(b)(1) did not bar industry

petitioners’ challenge to a longstanding EPA program when a

new rule expanded the program “to never-regulated sources”

operated by those industries. Id. at 130. The new rule gave

petitioners “newly ripened” claims against the program

because, as we explained, prior to its expansion the prospect

that the program would injure petitioners was too speculative

to confer jurisdiction on the court. Id. at 131. Here, in stark

contrast, NBB members were subject to the Rule on day one,

which is why NBB both participated in the rulemaking

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process and intervened in litigation challenging the Rule.

Instead of defending the Rule, NBB members could have

argued then that the Rule’s recordkeeping requirements were

insufficient to protect against the importation of nonqualified

renewable fuel. Because NBB was well positioned to

challenge the Rule on these grounds when it was first

promulgated, the CARBIO plan conferred on NBB no “newly

ripened” claim. See Sierra Club de Puerto Rico v. EPA, 815

F.3d 22, 26–28 (D.C. Cir 2016) (explaining that Coalition left

unchanged the principle that mere application of a regulation,

“without anything more,” falls short of “after-arising

grounds.”).

Coalition aside, NBB’s argument that the CARBIO plan

gives rise to a newly ripened claim because, prior to it, the

recordkeeping regulations “could potentially have been

applied by EPA in a manner that would not have injured

Petitioner or its members,” reveals the true “grounds” upon

which NBB seeks to challenge EPA: the agency’s decision to

grant the CARBIO proposal as an application of the Rule not

the Rule itself. Petitioner’s Br. 52. We consider that issue in

Part IV, infra.

NBB next argues that its challenge is timely because EPA

“reopened” the Rule when it approved the CARBIO proposal.

The reopener doctrine allows an otherwise untimely challenge

to proceed “where an agency has—either explicitly or

implicitly—undertaken to ‘reexamine its former choice.’”

National Mining Association v. Department of the Interior, 70

F.3d 1345, 1351 (D.C. Cir. 1995) (quoting Public Citizen v.

Nuclear Regulatory Commission, 901 F.2d 147, 151 (D.C.

Cir. 1990)). The CARBIO proposal is, the argument goes, a

“constructive” reopening of the Rule, which “occurs if the

revision of accompanying regulations ‘significantly alters the

stakes of judicial review’ as the result of a change that ‘could

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have not been reasonably anticipated.’” National Resources

Defense Council v. EPA, 571 F.3d 1245, 1266 (D.C. Cir.

2009) (per curiam) (quoting Sierra Club v. EPA, 551 F.3d

1019, 1025 (D.C. Cir. 2008)). We have described the

magnitude of alteration required to invoke this doctrine as a

“sea change,” and have declined to apply it when “the basic

regulatory scheme remains unchanged.” Id. As the Rule

expressly establishes that foreign producers may seek

approval of an alternative tracking program, the CARBIO

plan neither alters that regulatory framework nor works a

change that NBB members could not have reasonably

anticipated. To the extent NBB argues that the CARBIO

proposal is out of line with the Rule, this is—yet again—a

challenge to EPA’s application of the Rule rather than to the

Rule itself.

For these reasons, NBB’s petition for review of the Rule

is untimely under section 307(b)(1) and is, accordingly,

dismissed.

IV.

We now turn to the heart of this case—whether EPA

erred when it approved the CARBIO plan. NBB challenges

EPA’s action on both procedural and substantive grounds.

With respect to procedure, NBB contends that EPA erred

when it approved the CARBIO plan via informal adjudication

without public notice and comment. As a general matter,

“agencies have ‘very broad discretion whether to proceed by

way of adjudication or rulemaking.’” Qwest Services Corp. v.

FCC, 509 F.3d 531, 536 (D.C. Cir. 2007) (quoting Time

Warner Entertainment Co. v. FCC, 240 F.3d 1126, 1141

(D.C. Cir. 2001)). Not only does the Rule do nothing to fetter

this discretion, but it expressly requires public notice and

comment for country-wide aggregative compliance

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applications, see 40 C.F.R. §§ 80.1454(g)(1), 80.1457, while

imposing no notice and comment requirement for the

approval of alternative tracking plans like the one submitted

by CARBIO, id. § 80.1454(h).

NBB insists that EPA’s approval of the CARBIO

proposal was, in effect, a rule that required notice and

comment, not an adjudication, because the plan “provides a

new set of substantive standards for future conduct,

indefinitely applying to a large number of entities,” involves

“several policy determinations,” and leaves “key facts . . .

unresolved.” Reply 11-12. But we need not meditate on the

sometimes-fuzzy line between rulemaking and informal

adjudication because EPA’s approval of the CARBIO plan

was a straightforward instance of adjudication. Only after a

two-and-a-half-year process, during which EPA frequently

asked for new information and modifications to the proposal

and CARBIO submitted several addenda, did the agency

approve the CARBIO plan. The nature of that proceeding

“reflect[s] a highly fact-specific, case-by-case style”

characteristic of adjudication. Conference Group, LLC v.

FCC, 720 F.3d 957, 965 (D.C. Cir. 2013) (quoting AT&T v.

FCC, 454 F.3d 329, 333 (D.C. Cir. 2006)). The approval, by

its own terms, applies only to the CARBIO program; indeed,

NBB never even suggests that an entity other than CARBIO

or its producer-members could avail itself of the program

without making a separate application to EPA. That the

CARBIO plan will survey some yet-unidentified feedstock

suppliers hardly transforms the approval into a rulemaking,

lest every element of a license application need be set in stone

to escape notice and comment. Under NBB’s theory, an

agency could not by adjudication issue a permit to transport

cargo without first knowing who would drive the truck. And

as we have explained, the fact that an agency action applies to

a “large number of licensees” “carr[ies] [little] weight” in our

13

analysis. Goodman v. FCC, 182 F.3d 987, 994 (D.C. Cir.

1999).

On to NBB’s substantive objection: that approval of the

CARBIO plan was arbitrary and capricious. Our standard of

review under the Clean Air Act is the same as under the

Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and we

will affirm EPA’s action “if the record shows EPA considered

all relevant factors and articulated a ‘rational connection

between the facts found and the choice made.’” Catawba

County v. EPA, 571 F.3d 20, 41 (D.C. Cir. 2009) (per curiam)

(quoting Burlington Truck Lines v. United States, 371 U.S.

156, 168 (1962)). That said, we will not hesitate to overturn

agency action as arbitrary and capricious if the agency fails to

“comply with its own regulations.” Environmentel, LLC v.

FCC, 661 F.3d 80, 85 (D.C. Cir. 2011). Critical to our

resolution of this challenge, we give an “extreme degree of

deference to EPA when it is evaluating scientific data within

its technical expertise.” Catawba, 571 F.3d at 41 (quoting

City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003)

(alteration omitted)). This deference is especially appropriate

when EPA “acts under ‘unwieldy and science-driven’

statutory schemes like the Clean Air Act.” Bluewater

Network, 372 F.3d 404, 410 (D.C. Cir. 2004) (quoting

Husqvarna AB v. EPA, 254 F.3d 195, 199 (D.C. Cir. 2001)).

NBB contends that EPA’s approval of the CARBIO

proposal was arbitrary and capricious because the plan fails to

comply with the alternative tracking requirements set out in

40 C.F.R. § 80.1454(h) in three ways: (1) its omission of

importers; (2) its reliance on satellite technology, as well as

waybills for verifying the origin of feedstock; and (3) its

failure to identify, in advance, participating feedstock

producers and other entities in the supply chain. We consider

each in turn.

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A.

NBB first argues that the CARBIO plan is out of sync

with the Rule because it fails to include importers. As

designed, the CARBIO proposal tracks the fuel supply chain

from farm through biodiesel production, but not thereafter. As

NBB points out, however, section 80.1454(h) appears to

suggest, in three places, that a survey plan must include

producers and importers. 40 C.F.R. §§ 80.1454(h)(2)(ii)

(specifying that surveys must be “[c]onducted at renewable

fuel production and import facilities and their feedstock

suppliers”) (emphasis added); (h)(2)(iii) (requiring surveys to

be “[r]epresentative of all renewable fuel producers and

importers in the survey area”) (emphasis added); (h)(3)(i)

(requiring “feedstock audits of renewable fuel production and

import facilities in accordance with the survey plan”)

(emphasis added).

EPA responds that the best reading of section 80.1454(h)

is that only an alternative tracking plan sponsored by RIN-

generating importers needs to include importers, whereas the

CARBIO proposal is sponsored by RIN-generating producers.

“[W]e review an agency’s interpretation of its own

regulations with ‘substantial deference.’ ” In re Sealed Case,

237 F.3d 657, 667 (D.C. Cir. 2001) (quoting Thomas

Jefferson University v. Shalala, 512 U.S. 504, 512 (1994)).

Even without that deference, however, we can readily adopt

EPA’s interpretation given our obligation to “read . . . words

‘in their context and with a view to their place in the

overall . . . scheme.’” King v. Burwell, 135 S. Ct. 2480, 2489

(2015) (quoting FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 133 (2000)).

Section 80.1454(h) specifies that “[a]ny foreign or

domestic renewable fuel producer or RIN–generating

importer” may adopt an alternative tracking requirement.

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(emphasis added). Elaborating, section 80.1454(h)(1) states

that “a renewable fuel producer or importer” must sponsor an

independent survey plan in order to comply. (emphasis

added). The Rule thus provides that either RIN-generating

producers or RIN-generating importers may sponsor an

alternative tracking plan, and, by implication, without

participation from the other. Given that the purpose behind

these recordkeeping provisions is to ensure that entities

generating RINs can produce the records needed to verify that

renewable fuel comes from qualified land, we agree with EPA

that little additional value would flow from requiring a

producer, once it has generated the RIN and possesses those

records, to continue monitoring its product downstream. By

contrast, if an importer is the RIN-generating entity, then

biofuel producers are upstream, and an importer can only

possess the necessary documentation if it has tracked the

product from the farm to its doors. This second scenario is,

EPA explains, why the three provisions cited by NBB

inelegantly refer to producers and importers. Respondent’s

Br. 50–51.

Additional textual clues favor EPA’s view. For one thing,

as EPA points out, the alternative tracking program is open to

any “foreign or domestic renewable fuel producer.” 40 C.F.R.

§ 80.1454(h) (emphasis added). At the moment, domestic

producers are subject to the aggregate compliance regime,

based on EPA’s determination that the total amount of

agricultural land in the United States is no higher than it was

in 2007. Id. § 80.1454(g). Were the United States to exceed

that 2007 baseline and become ineligible for the aggregate

compliance regime, then domestic producers could avail

themselves of alternative tracking. Under that scenario, it

would make no sense to interpret the regulations as requiring

a program sponsored by domestic producers to include

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“importers”—domestic fuel, unlike domestic beer, is never

imported.

Second, the alternative tracking approach must “achieve

at least the same level of quality assurance” as individual

tracking. Id. § 80.1454(h)(2)(iv). Because individual tracking

regulations do not require producers to track what importers

do with renewable fuel, EPA notes, it would be logical to

interpret alternative tracking in the same way. See id.

§ 80.1454(c)(1).

Third, as EPA observes, the regulation’s preamble

includes not a single reference to importers. According to

EPA, this demonstrates that it “envisioned [alternative

tracking] survey plans from renewable biomass producers

need not reach the actions of importers in the context of the

alternative tracking program.” Respondent’s Br. 51; see 75

Fed. Reg. at 14,700.

Fourth, reading the regulation in EPA’s preferred manner

creates no gap in the regulatory scheme. Approval of an

alternative tracking plan only allows participating entities to

avail themselves of section 80.1454(h)’s recordkeeping

provisions. Non-participating entities, like RIN-generating

importers, remain subject to section 80.1454(c)(1)’s

individual tracking requirements, as well as to other

regulatory provisions that stand independent of the

recordkeeping measures in section 80.1454. See, e.g., 40

C.F.R. § 80.1451(d) (directing producers and RIN-generating

importers to submit quarterly reports that include “electronic

data identifying the land . . . from which each type of

feedstock . . . was harvested.”).

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Taken together, these features of the regulation

demonstrate that the CARBIO plan’s omission of importers is

consistent with the best reading of the Rule.

B.

NBB’s second argument rests on the Rule’s requirement

that an alternative tracking plan must be “[d]esigned to

achieve the same level of quality assurance” as the individual

tracking and aggregate compliance options.

Id. § 80.1454(h)(2)(iv). According to NBB, several features

of the CARBIO plan make it less likely than these other

recordkeeping regimes to ensure that feedstock comes from

qualified land.

One such feature is the plan’s use of satellite technology

to identify land cleared or cultivated prior to 2007, a

methodology NBB calls too “untested” and ill-defined to

provide the requisite level of quality assurance. For several

reasons, this claim fails on the launch pad.

For one thing, under the regulation, the CARBIO plan

must provide “the same level of quality assurance” as the

individual and aggregate compliance approaches. Id.

§ 80.1454(h)(2)(iv). Because the regulation establishing the

petition process for aggregate compliance plans expressly

contemplates the use of “[s]atellite imagery or data” to

evaluate when land was cleared or cultivated, how could the

CARBIO plan possibly fall short for doing precisely the same

thing? See id. §§ 80.1457(b)(3)(i), (b)(4)(i).

In any event, we can hardly imagine a more appropriate

occasion to defer to EPA’s expert judgment than its

assessment of whether a particular satellite methodology can

accurately measure environmental change. Indeed, Petitioner

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has identified no basis in the record to upset the agency’s

conclusion as to CARBIO’s use of satellite technology.

The CARBIO proposal includes 23 pages explaining its

methodology. Relying predominantly on images collected by

NASA’s Landsat program, the plan takes electromagnetic

data gathered by sensors on Landsat satellites and then

employs algorithms to transform that data into categories of

land use. EPA is well-positioned to evaluate the proposal’s

technical feasibility, as the agency itself uses satellite data to

measure international land-use changes as part of its analysis

of lifecycle greenhouse-gas emissions in the Renewable Fuel

Standard program. See EPA, Renewable Fuel Standard

Program Regulatory Impact Analysis, 317 (2010). Moreover,

the Landsat program is, since the launch of its first satellite in

1972, “the longest continuous space-based record of Earth’s

land in existence.” NASA, About Landsat,

http://landsat.gsfc.nasa.gov/?page_id=2. Today, the program

produces images capable of spotting “[w]hen a new road

appears in the dense forests of Peru[] or a baseball diamond-

sized patch of forest is felled in the Republic of Congo.”

NASA, Staying Alert: How a New Landsat-Based Tool Spots

Deforestation, http://landsat.gsfc.nasa.gov/?p=12335.

Researchers have used Landsat data to view and characterize

subtle vegetation changes in the Alaskan tundra. Junchang Ju

and Jeffrey G. Masek, The Vegetation Greenness Trend in

Canada and US Alaska from 1984-2012 Landsat Data, 176

Remote Sensing of Environment 1 (2016). These do not strike

us as markers of an unproven or untrustworthy technology.

NBB believes that the land categories adopted in the plan

will result in the misclassification of native forests as

qualified land. But the proposal classifies native forests as

“other vegetation” and specifies that “go areas” will exclude

that category. Without context, NBB’s passing reference to

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the plan’s treatment of wetlands provides an insufficient basis

to set the agency’s action aside. Petitioner’s Br. 42–43. The

plan requires CARBIO—not the independent surveyor—to

identify go areas. Yet nothing in the Rule precludes such an

arrangement and, for good measure, the proposal specifies

that a third party will verify its maps on an annual basis.

NBB separately contends that the plan’s reliance on

satellite imagery to verify historical land use runs afoul of the

Rule’s requirement that the independent surveyor “[o]btain

the records and product transfer documents associated with

the feedstocks being audited.” 40 C.F.R. § 80.1454(h)(3)(ii)

(emphasis added). This is so, it maintains, because these

images cannot constitute “records” within the meaning of that

provision. NBB gives us no basis—nor can we divine one—

for concluding that the expansive term “record” excludes

historical satellite images.

NBB also takes issue with the plan’s use of waybills.

Under the plan, waybills are inspected to ensure feedstock

was sent from a zip code that matches an identified go area. If

ineligible land falls within a zip code, no feedstock from that

zip code may qualify.

NBB thinks this system is inadequate because waybills

display only whether feedstock was shipped from a qualifying

zip code, so shipments made from qualifying land could

contain unqualified feedstock. In other words, NBB fears that

qualified land might launder unqualified feedstock. But any

concern about feedstock laundering is equally present under

the individual tracking regime and, as noted above,

CARBIO’s proposal need achieve only the “same level of

quality assurance” as individual tracking. Id.

§ 80.1454(h)(2)(iv) (emphasis added); see also id.

§ 80.1454(c)(1)(i)(B) (relying on transfer documents from

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qualified land to show the quantity of feedstock purchased

from each area and to verify the chain of custody for said

feedstock). Moreover, the CARBIO proposal, like other

alternative tracking programs, includes independent audits to

verify compliance by feedstock suppliers, as opposed to the

passive recordkeeping requirements of individual tracking.

In a related argument, NBB contends that the CARBIO

plan fails to explain how it will prevent mixing of qualified

and unqualified feedstock. Again, however, NBB never

explains how the CARBIO plan is any more deficient in this

respect than the individual tracking regime—the relevant

question. Moreover, the CARBIO plan provides, with no

direct analogue under the individual tracking provision, for

use of a “mass balance” approach, which ensures that RINs

are only generated in proportion to the quantity of qualified

biomass. Additional regulatory requirements—independent of

the recordkeeping provisions at issue—impose a

responsibility to segregate qualified renewable fuel from

nonqualified renewable fuel. See, e.g., 40 C.F.R.

§§ 80.1466(d)(vi)(B), (j)(1).

Having been given no basis to disturb EPA’s conclusion

that the CARBIO plan is “[d]esigned to achieve the same

level of quality assurance” as the individual tracking and

aggregate compliance regimes, we move on to NBB’s final

challenge.

C.

Under section 80.1454(h)(2)(iii), “annual compliance

surveys . . . must be . . . [r]epresentative of all renewable fuel

producers and importers in the survey area and representative

of their feedstock suppliers.” Elaborating, the Rule states that

the “survey program must include a statistically supportable

methodology.” 75 Fed. Reg. at 14,670. Because the CARBIO

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proposal does not identify the survey area and all of the

feedstock suppliers in advance, NBB argues, EPA failed to

“rationally” assess whether the CARBIO program will use a

sampling methodology that is “representative” of the

feedstock suppliers. Petitioner’s Br. 35–38.

This challenge misses the regulation’s distinction

between survey plans and surveys. See, e.g., 40 C.F.R.

§ 80.1454(h)(1) (stating that “an independent third party

conduct[s] a comprehensive program of annual compliance

surveys, to be carried out in accordance with a survey plan

which has been approved by EPA”). The regulation mandates

representative surveys. Only in the report issued to EPA after

a survey is complete must the independent surveyor identify

“the covered area surveyed.” Id. § 80.1454(h)(3)(vii)(D). A

survey plan, by contrast, must include “the parties for whom

the survey is to be conducted,” as well as a “methodology” for

conducting audits. Id. § 80.1454(h)(4). But the regulation

nowhere mandates that survey plans identify feedstock

suppliers or survey areas.

NBB’s theory—that EPA may not approve an alternative

tracking program without knowing the full population of

feedstock suppliers in advance—scrambles the sequence

envisioned in the regulation. Moreover, it is unclear why EPA

must know the precise universe of feedstock suppliers in the

survey in order to determine, in advance, whether a

methodology for conducting those surveys is acceptable.

NBB separately questions whether CARBIO’s plan to use

a “random sampling methodology with probability

proportional to size (PPS) of feedstock amounts supplied for

biodiesel production” is a proper statistical methodology.

Given our highly deferential standard of review, however, we

are more likely to brew renewable fuel ourselves than second-

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guess the EPA’s determination on this highly technical point

based on a fleeting attack by the challenger.

V.

For the foregoing reasons, we dismiss the petition in case

number 15-1073 and deny the petition in case number 15-

1072.

So ordered.