Petition for Writ of Certiorari — Valero Energy Corporation, et al., Petitioners v. Environmental Protection Agency
Supreme Court briefDec 30, 2019
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APPENDIX
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
————
No. 16-1052
————
Consolidated with 16-1055, 17-1255, 17-1259,
18-1021, 18-1024, 18-1025, 18-1029
————
ALON REFINING KROTZ SPRINGS, INC.,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent,
MONROE ENERGY, LLC, et al.,
Intervenors.
————
On Petitions for Review of Agency Action of the
United States Environmental Protection Agency
————
Argued October 5, 2018
Decided August 30, 2019
————
Samara L. Kline argued the cause for petitioners.
With her on the briefs were Evan A. Young, Megan H.
Berge, Lisa M. Jaeger, Brittany M. Pemberton, Clara
Poffenberger, Richard S. Moskowitz, Robert J. Meyers,
Thomas A. Lorenzen, Elizabeth B. Dawson, Warren R.
Neufeld, LeAnn M. Johnson, and Jonathan G. Hardin.
Albert M. Ferlo Jr. and Krista Hughes entered
appearances.
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Meghan E. Greenfield, Trial Attorney, U.S. Department of Justice, argued the cause for respondent. With
her on the brief was Jeffrey H. Wood, Acting Assistant
Attorney General. Daniel R. Dertke, Attorney, entered
an appearance.
Robert A. Long Jr. argued the cause for intervenors
American Petroleum Institute and Growth Energy.
With him on the brief were Kevin King, Seth P.
Waxman, David M. Lehn, Saurabh Sanghvi, and
Claire Chung. Stacy R. Linden entered an appearance.
Shannen W. Coffin and Linda C. Bailey were on the
brief for amici curiae NACS, et al. in support of
respondent EPA.
————
No. 17-1044
————
Consolidated with 17-1045, 17-1047, 17-1049,
17-1051, 17-1052
————
COFFEYVILLE RESOURCES REFINING & MARKETING,
LLC AND WYNNEWOOD REFINING COMPANY, LLC,
v.
Petitioners,
ENVIRONMENTAL PROTECTION AGENCY,
Respondent,
ALON REFINING KROTZ SPRINGS, INC., et al.,
Intervenors.
————
On Petitions for Review of Action of the United
States Environmental Protection Agency
————
3a
Brian Killian argued the cause for petitioner The
National Biodiesel Board. With him on the briefs was
Douglas A. Hastings.
Samara L. Kline and Thomas Allen Lorenzen,
argued the causes for Obligated Party Petitioners.
With them on the briefs were Evan A. Young, Lisa M.
Jaeger, Brittany M. Pemberton, Clara Poffenberger,
Richard S. Moskowtiz, Robert J. Meyers, Elizabeth B.
Dawson, David W. DeBruin, Thomas J. Perrelli,
Matthew E. Price, LeAnn M. Johnson, and Jonathan G.
Hardin. David Y. Chung, Eric D. Miller, and Albert M.
Ferlo Jr. entered appearances.
Patrick R. Jacobi and Samara M Spence, Attorneys,
U.S. Department of Justice, argued the causes for
respondent. With them on the brief was Jeffrey H.
Wood, Acting Assistant Attorney General.
Thomas Allen Lorenzen argued the cause for intervenors American Fuel & Petrochemical Manufacturers
and American Petroleum Institute in support of
respondent regarding Biomass-Based Diesel Issues.
With him on the brief were Robert J. Meyers, Elizabeth
B. Dawson, Richard S. Moskowitz, Robert A. Long, Jr.,
and Kevin King. Stacy R. Linden entered an appearance.
Robert A. Long, Jr., Kevin King, Bryan M. Killian,
Douglas A. Hastings, Seth P. Waxman, David M. Lehn,
Saurabh Sanghvi, and Claire H. Chung were on the
brief for intervenors Growth Energy, et al. in support
of respondent. Eric D. Miller entered an appearance.
Before: PILLARD and KATSAS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
Opinion concurring in part and concurring in the
judgment filed by Senior Circuit Judge WILLIAMS.
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TABLE OF CONTENTS
I. Introduction ..................................................... 6 [5a]
II. Background ..................................................... 7 [6a]
A. Legal Background ...................................... 7 [6a]
B. Procedural Background ......................... 12 [11a]
1. 2007, 2010, and 2017 Point of
Obligation Proceedings .................... 12 [11a]
2. 2017 Annual Volumetric Proceedings .................................................... 15 [14a]
III. Standard of Review ................................... 17 [16a]
IV. 2010 Point of Obligation Rule ................... 17 [17a]
A. Jurisdiction ............................................ 17 [17a]
1. Final Agency Action Under Section
7607(b)(1) .......................................... 19 [19a]
2. After-Arising Grounds Under Section
7607(b)(1) .......................................... 28 [28a]
3. Mandatory Reconsideration Under
Section 7607(d)(7)(B) ........................ 29 [29a]
B. Merits of Challenges to EPA’s Refusal
to Revise the 2010 Point of Obligation
Rule ........................................................ 32 [32a]
V. 2017 Annual Volumetric Rule .................... 41 [42a]
A. Point of Obligation ................................. 42 [42a]
1. Jurisdiction ....................................... 42 [43a]
2. Merits ................................................ 43 [44a]
B. Cellulosic Biofuel Projection.................. 53 [55a]
C. Cellulosic Waiver ................................... 58 [60a]
VI. 2018 Volume for Biomass-Based Diesel ... 62 [64a]
A. NBB’s Standing...................................... 63 [65a]
B. Merits of NBB’s Challenges .................. 65 [67a]
VII. Conclusion ................................................. 70 [72a]
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PER CURIAM:
I. Introduction
The Clean Air Act requires EPA to publish “renewable fuel standards,” ultimately expressed as “applicable
percentages,” each year to ensure that the total supply
of transportation fuel sold or imported into the United
States contains specified proportions of each of four
categories of renewable fuels. Congress intended the
Renewable Fuel Standards (RFS) program to “move
the United States toward greater energy independence and security” and “increase the production of
clean renewable fuels.” See Energy Independence and
Security Act of 2007 (EISA), Pub. L. No. 110-140,
preamble, 121 Stat. 1492 (2007) (codified at 42 U.S.C.
§ 7545(o)).
In these related cases, Alon Refining Krotz Springs,
together with other petroleum refineries and their
trade associations—the “Alon Petitioners”—seek review
of EPA’s decision not to revise its 2010 point of obligation regulation requiring refineries and importers, but
not blenders, to bear the direct compliance obligation
of ensuring that transportation fuels sold or introduced into the U.S. market include the requisite
percentages of renewables. Coffeyville Resources Refining & Marketing and another group of refineries and
trade associations—the “Coffeyville Petitioners”—
challenge EPA’s refusal to reassess the appropriateness of the point of obligation in the context of its 2017
annual volumetric rule, which set the 2017 applicable
percentages for all four categories of renewable fuel
and the 2018 applicable volume for one subset of such
fuel, biomass-based diesel. See 81 Fed. Reg. 89,746
(Dec. 12, 2016) (2017 Rule). The Coffeyville Petitioners
also contend that EPA arbitrarily set the 2017 percentage standards too high. The National Biodiesel
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Board (NBB)—a biomass-based diesel industry trade
association—separately contends that EPA set the
2018 applicable volume for biomass-based diesel too
low. Various trade associations representing refineries
and producers of renewable fuels have intervened in
support of EPA. For the reasons that follow, we deny
each of the petitions for review, many of which recycle
arguments raised and rejected in prior challenges.
II. Background
A. Legal Background
Congress established the RFS program in 2005 as
part of the Energy Policy Act, Pub. L. No. 109-58, 119
Stat. 594 (2005) (as amended at 42 U.S.C. § 7545(o)).
The statute mandates the gradual introduction of four
nested categories of renewable fuels into the United
States’ supply of gasoline, diesel, and other transportation fuels. See 42 U.S.C. § 7545(o)(2)(B). These
categories include: (1) total renewable fuel; (2) advanced
biofuel; (3) cellulosic biofuel; and (4) biomass-based
diesel. Id. § 7545(o)(2)(A)(i), (B). The umbrella category, total renewable fuel, covers the three other
categories plus any conventional renewable fuels, such
as corn-based ethanol. See id. § 7545(o)(1)(F), (J),
(2)(A)(i). The advanced biofuel subset includes any
renewable fuel (except ethanol from cornstarch) that
has at least 50% lower lifecycle greenhouse gas
emissions than fossil fuels. Id. § 7545(o)(1)(B). The
statute further specifies two nonexclusive subsets of
advanced biofuels: cellulosic biofuel (a renewable fuel
derived from cellulose materials such as corn stalks
and husks) and biomass-based diesel (a diesel fuel
substitute made from feedstocks such as animal fats).
Id. § 7545(o)(1)(B), (D), (E); EPA Coffeyville Br. 4-5.
The following figure depicts the nested nature of the
four fuel categories.
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Source: Coffeyville Br. 11.
Four tables in the statute set forth gradually
increasing annual “applicable volume” requirements
for each category of renewable fuel. See 42 U.S.C.
§ 7545(o)(2)(B)(i). The statute sets applicable
volumes for biomass-based diesel through 2012, id.
§ 7545(o)(2)(B)(i)(IV), and applicable volumes for
the other three categories through 2022, id.
§ 7545(o)(2)(B)(i)(I)—(III). Under those tables, as the
total quantities of renewable fuel rise over time, the
ratio of advanced biofuels relative to conventional
renewable fuel gradually increases. Id. For compliance
years (which match calendar years) after those specified
in the tables, the statute requires EPA, in coordination
with the Secretaries of Energy and Agriculture, to set
the annual applicable volumes based on a review of the
implementation of the program plus an analysis of six
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listed factors. Id. § 7545(o)(2)(B)(ii). For years not
specified in the table, EPA must publish the applicable
volumes fourteen months before the year in which
they will apply—volumes that, shortly before the
start of the compliance year, EPA translates into
percentage standards. Id.
Various “waiver” provisions require or permit EPA
to lower the annual applicable volumes. Two are
relevant for the purposes of this case. First, under the
“cellulosic waiver provision,” EPA must make its
own projection of the volume of cellulosic biofuel
that will be produced in the following year. Id.
§ 7545(o)(7)(D)(i). If that projection is less than the
statutory figure, the agency must use its own projection as the applicable volume of cellulosic biofuel. Id.;
see Am. Petroleum Inst. v. EPA, 706 F.3d 474, 477-80
(D.C. Cir. 2013) (API). The same cellulosic waiver
provision authorizes (but does not require) EPA to
also reduce the advanced biofuel and total renewable
biofuel volume requirements “by the same or a lesser
volume” as the cellulosic biofuel reduction, 42 U.S.C.
§ 7545(o)(7)(D)(i), and EPA has “broad discretion”
regarding whether and how to do that, Monroe Energy,
LLC v. EPA, 750 F.3d 909, 915 (D.C. Cir. 2014).
Separately, under the “general waiver provision,” EPA
may reduce any of the statutory applicable volumes if
it determines “that implementation . . . would severely
harm the economy or environment,” or “that there
is an inadequate domestic supply.” 42 U.S.C.
§ 7545(o)(7)(A); see Ams. for Clean Energy v. EPA, 864
F.3d 691, 707-13 (D.C. Cir. 2017) (ACE).
After EPA determines the waiver-adjusted applicable volumes, it must translate those volumes into
“renewable volume obligation[s]” for each category of
renewable fuel for the upcoming compliance year.
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42 U.S.C. § 7545(o)(3)(B)(i). The volume obligation for
each category of renewable fuel is expressed as an
“applicable percentage,” also known as a “percentage
standard,” calculated by dividing the adjusted applicable volume for that category of fuel by the total
anticipated volume of non-renewable transportation
fuel that will be introduced into commerce (which EPA
derives based on an estimate provided by the Energy
Information Administration) in the coming compliance
year. Id. § 7545(o)(3)(A), (B)(ii)(II); 40 C.F.R. § 80.1405(c).
The statute calls on EPA to publish the percentage
standards not later than November 30—a month
before the start of the compliance year. 42 U.S.C.
§ 7545(o)(3)(B)(i).
EPA must place the renewable volume obligations
on “refineries, blenders, and importers, as appropriate.” 42 U.S.C. § 7545(o)(3)(B)(ii)(I); see also id.
§ 7545(o)(2)(A) (requiring EPA to promulgate implementing regulations, including “compliance provisions
applicable to refineries, blenders, distributors, and
importers, as appropriate,” designed to ensure that
transportation fuel sold or introduced into the United
States “contains at least” the required annual applicable volumes). The entities that EPA designates to
meet the volume obligations are known as “obligated
parties.” Monroe Energy, 750 F.3d at 912. Each
obligated party must ensure that the volume of nonrenewable fuel it sells or introduces into U.S. commerce
is matched by selling or introducing a corresponding
volume of each category of renewable fuel at the level
EPA’s percentage standard requires for that category.
See ACE, 864 F.3d at 699. The percentage standards
are set in the anticipation that, if each obligated party
meets them and EPA’s projection regarding the country’s
total transportation fuel supply bears out, the amount
of each category of renewable fuel introduced into the
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economy in the upcoming compliance year will equal
the applicable volumes for that year. Id. Obligated
parties bear no direct responsibility for any shortfalls
in the applicable volumes so long as they comply with
the percentage standards.
EPA assigns a set of “renewable identification
numbers” (RINs) to each batch of renewable fuel that
is produced or imported for use in the United States.
40 C.F.R. § 80.1426; see 42 U.S.C. § 7545(o)(5); Monroe
Energy, 750 F.3d at 913. The number of RINs assigned
to each batch corresponds to the amount of ethanolequivalent energy per gallon in that batch. See 40
C.F.R. § 80.1415; Monroe Energy, 750 F.3d at 913.
RINs remain attached to the renewable fuel until that
fuel is purchased by an obligated party or blended into
fossil fuels to be used for transportation fuel. See ACE,
864 F.3d at 699 (citing 40 C.F.R. § 80.1429(b)(1)—(2)).
At that point the RINs become “separated,” meaning
they are, in effect, a form of compliance credit. Id.
Obligated parties demonstrate their compliance with
their renewable fuel obligations by “retiring” RINs in
annual compliance demonstrations to EPA. 40 C.F.R.
§§ 80.1427(a), 80.1451(a)(1).
Because the four categories of renewable fuel are
nested, obligated parties can comply with their obligations for a type of fuel by retiring any combination of
RINs corresponding to that category of fuels or any
subset thereof. See 40 C.F.R. § 80.1427(a)(3)(i). For
instance, retiring a cellulosic biofuel or biomass-based
diesel RIN counts not only toward the volume obligation for that fuel, but also toward both the advanced
biofuel and total renewable fuel obligations. Thus, “if
one million gallons of cellulosic biofuel are blended
into the fuel supply, the statute allows those one
million gallons to be credited toward the advanced
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biofuel and total renewable fuel obligations in addition
to the cellulosic biofuel obligation.” ACE, 864 F.3d at
698.
Obligated parties who have more RINs than they
need may sell or trade their excess, 40 C.F.R. § 80.1428(b),
or they may “bank” those RINs for use to meet up to
20 percent of their obligations for the following compliance year, Monroe Energy, 750 F.3d at 913; see 40
C.F.R. § 80.1427(a)(1), (5); Regulation of Fuels and
Fuel Additives: Changes to Renewable Fuel Standard
Program, 75 Fed. Reg. 14,670, 14,734-35 (Mar. 26,
2010). Obligated parties without enough RINs to meet
their compliance obligations may purchase RINs, use
banked RINs from the prior year, or carry a deficit
forward to the following year to be satisfied together
with the following year’s obligations. See ACE, 864
F.3d at 699-700; see also 42 U.S.C. § 7545(o)(5)(D); 40
C.F.R. § 80.1427(b).
B. Procedural Background
The procedural history of these cases follows two
paths: first, the proceedings relevant to the challenge
that EPA arbitrarily declined to initiate a rulemaking
to modify the 2010 regulation designating refineries
and importers, but not blenders, as obligated parties;
and second, the proceedings challenging the 2017 Rule.
1. 2007, 2010, and 2017 Point of Obligation
Proceedings
In its 2007 regulations implementing the RFS program, EPA designated refiners and importers, but not
blenders, as the “appropriate” parties to meet the
renewable fuel obligation. 72 Fed. Reg. 23,900, 23,92324 (May 1, 2007). At the time, those designations were
not challenged in court. EPA reaffirmed its designations in a 2010 regulation now commonly known as the
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“point of obligation rule.” 75 Fed. Reg. at 14,721-22
(codified at 40 C.F.R. § 80.1406(a)(1)). During the
2010 rulemaking, several refiners—including petitioner
Valero Energy Corporation—argued that failing to
obligate blenders, who combine renewable fuel with
fossil fuels, would make the RFS program unworkable.
EPA concluded that the program was functioning
adequately and that the burdens and disruption from
changing the point of obligation would outweigh any
benefits. See Summary and Analysis of Comments
3.9.2, Alon J.A. 287-90. Although other aspects of the
2010 regulations were challenged in court, see, e.g.,
Nat’l Chicken Council v. EPA, 687 F.3d 393 (D.C. Cir.
2012); Nat’l Petrochemical & Refiners Ass’n v. EPA,
630 F.3d 145 (D.C. Cir. 2010), the point of obligation
rule was not.
On December 14, 2015, EPA promulgated the volume
requirements for 2014, 2015, and 2016. Renewable
Fuel Standard Program, 80 Fed. Reg. 77,420 (Dec. 14,
2015). In so doing, EPA exercised its general waiver
authority to lower the total renewable fuel volumes
based on a finding of inadequate domestic supply due
to market factors “affecting the ability to distribute,
blend, dispense, and consume . . . renewable fuels” at
the levels required by statute. Id. at 77,435/2. Among
those factors was “the slower than expected development of the cellulosic biofuel industry.” Id. at 77,422.
The agency thought an additional “real world constraint[]”
was the “E10 blendwall”—the difficulty for most
American vehicle engines to run on blends containing
more than 10% ethanol. Id. at 77,423. EPA explained
that those factors made the statutory requirements
“impossible to achieve.” Id. at 77,422/2. This Court
later vacated the general waiver on the ground that
EPA had misinterpreted the statutory term “inadequate
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domestic supply” to include demand-side constraints
such as the E10 blendwall. See ACE, 864 F.3d at 704-13.
On February 12, 2016, sixty days after EPA promulgated the volume requirements for 2014-16, the Alon
Petitioners petitioned this Court for review of the 2010
point of obligation rule. These petitions contend that
the rule was arbitrary and capricious insofar as it
failed to impose the obligation on downstream blenders—
the parties petitioners think are best able to comply
with it. The petitions assert jurisdiction under the
after-arising provision in 42 U.S.C. § 7607(b)(1), which
permits otherwise-untimely challenges to a rule if the
challenges are “based solely on grounds arising after”
the sixty-day deadline for seeking judicial review. The
petitioners assert that EPA’s exercise of its general
waiver authority in the 2014–16 volume regulations,
and its acknowledgment of the RFS program’s
shortcomings as of that time, provided such an afterarising ground.
The Alon Petitioners simultaneously petitioned EPA
to revise the point of obligation rule. Some of their
requests were styled as petitions for a rulemaking.
Others were styled as petitions for mandatory reconsideration under 42 U.S.C. § 7607(d)(7)(B), which
requires EPA to reconsider a rule if centrally important
objections were impracticable to raise during the comment period or “arose after” that period “but within the
time specified for judicial review.” The petitions cited
the waiver in the 2014-16 volume regulations and
EPA’s acknowledgment of program difficulties as
grounds supporting mandatory reconsideration. This
Court held in abeyance the petitions for review of the
point of obligation rule pending resolution of the
petitions to revise it.
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On November 10, 2016, EPA published a proposed
denial of the petitions to revise the point of obligation
rule. On November 22, 2017, after reviewing more
than 18,000 comments on the proposal, EPA denied
the petitions. It concluded that the statutory requirements for mandatory reconsideration were not met, so
it treated all the filings as petitions for a rulemaking.
Denial of Petitions for Rulemaking to Change the RFS
Point of Obligation, EPA-HQ-OAR-2016-0544-0525, at
7 (Nov. 22, 2017) (EPA Denial), Alon J.A. 61. EPA then
denied the petitions on the ground that “changing the
point of obligation would . . . likely result in a decrease
in the production, distribution, and use of [renewable]
fuels” and would “do nothing to incentivize the research,
development, and commercialization of cellulosic biofuel
technologies critical for the growth of the RFS program
in future years.” EPA Denial at 8-9, Alon J.A. 62-63.
Within sixty days (in December 2017 and January
2018), the Alon Petitioners sought judicial review of
that denial, which it cast as a final agency action
under section 7607(b)(1). The two sets of petitions—
the February 2016 petitions for review of the 2010
point of obligation rule and the 2017-18 petitions for
review of EPA’s refusal to reconsider the rule—were
consolidated and are now before us.
2. 2017 Annual Volumetric Proceedings
EPA issued its 2017 annual volumetric rule on
December 12, 2016. The 2017 Rule establishes: (1) the
applicable volume for biomass-based diesel for 2018,
81 Fed. Reg. at 89,751/2; (2) the waiver-adjusted applicable volumes for cellulosic biofuel, advanced biofuel,
and total renewable fuel for 2017, id. at 89,747 tbl.
I-1; and (3) percentage standards for all four fuel types
for 2017, id. at 89,751, tbl. I.B.6-1.
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EPA exercised its mandatory cellulosic waiver
authority to decrease the 2017 applicable volume for
cellulosic biofuel by more than 94 percent, dropping
5.189 billion gallons from the statutory target of 5.5
billion gallons, to 311 million gallons. Id. at 89,750/2;
42 U.S.C. § 7545(o)(2)(B)(i)(III). EPA then had discretion under that same waiver authority to cut as much
as 5.189 billion gallons off the statutory volumes for
advanced biofuel and total renewable fuel. See 42
U.S.C. § 7545(o)(7)(D)(i); 81 Fed. Reg. at 89,762 & tbl.
IV.A-1. EPA partially exercised that authority, reducing the 9-billion-gallon statutory target for advanced
biofuel by 4.72 billion gallons, resulting in an adjusted
applicable volume of 4.28 billion gallons—a greater
than 50% decrease. 81 Fed. Reg. at 89,750–51;
42 U.S.C. § 7545(o)(2)(B)(i)(II). EPA reduced the total
renewable fuel volume requirements by the same
amount, lowering the statutory target of 24 billion
gallons to 19.28 billion gallons.81 Fed. Reg. at 89,751/1;
42 U.S.C. § 7545(o)(2)(B)(i)(I). EPA considered but
decided against also using its general waiver authority
to further lower the applicable volume of total renewable fuel. 81 Fed. Reg. at 89,751/1.
Using the waiver-adjusted applicable volumes, EPA
set the 2017 percentage standards for each of the four
renewable fuel categories. See id. at 89,751, 89,799801. Finally, EPA set the biomass-based diesel applicable volume for 2018 at 2.1 billion gallons. Id. at
89,751/2. EPA received comments urging it to reassess
the point of obligation in the 2017 Rule, but declined
to address them on the grounds that the comments
were “beyond the scope” of the 2017 rulemaking.
Response to Comments at 542, Coffeyville J.A. 761.
After EPA published the 2017 Rule, various parties
petitioned for judicial review. The Coffeyville Petitioners
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contend that EPA erred by refusing to reconsider which
types of parties would bear the direct compliance obligation under the 2017 Rule. They also argue that EPA
arbitrarily calculated the 2017 production of cellulosic
biofuel and arbitrarily exercised its discretionary cellulosic waiver authority, resulting in percentage standards
that are too high. NBB argues that EPA set the 2018
applicable volume for biomass-based diesel too low by
considering factors it should not have and omitting or
incorrectly assessing others. Two trade associations
representing refineries have intervened in defense of
EPA’s biomass-based diesel decision, and a coalition of
trade associations representing renewable fuel producers and refineries have intervened to oppose the
Coffeyville Petitioners’ claims. None of the petitioners’
challenges succeeds.
III. Standard of Review
“This court applies the familiar, deferential standard
announced in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., to sustain any reasonable
agency interpretation of ambiguity in the Clean Air
Act.” Nat’l Ass’n for Surface Finishing v. EPA, 795
F.3d 1, 7 (D.C. Cir. 2015). “We employ the deferential
State Farm standard of review when reviewing arguments based on allegedly arbitrary or unreasoned
agency action.” ACE, 864 F.3d at 726 (citing Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Under that
rubric, EPA’s actions are “presumptively valid provided
[they] meet[] a minimum rationality standard.” Nat.
Res. Def. Council, Inc. v. EPA, 194 F.3d 130, 136 (D.C.
Cir. 1999). We uphold EPA’s actions so long as they
are “reasonable and reasonably explained.” Jackson v.
Mabus, 808 F.3d 933, 936 (D.C. Cir. 2015).
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IV. 2010 Point of Obligation Rule
We start with the Alon Petitioners and their challenges to the 2010 point of obligation rule.
A. Jurisdiction
We begin, as we must, with our jurisdiction. In
general terms, the question presented involves our
review of rules promulgated under the Clean Air Act,
or EPA’s failure to amend them, after the initial
window for seeking judicial review has passed. Various
statutory provisions frame this inquiry.
Section 7607(b)(1) of Title 42 provides for judicial
review of regulations promulgated by the Administrator
of EPA under the Clean Air Act. The first sentence of
section 7607(b)(1) vests this Court with exclusive jurisdiction to review “nationally applicable regulations
promulgated, or final action taken, by the Administrator” under the Act. The fourth sentence of section
7607(b)(1) specifies the time for seeking judicial
review. It imposes a sixty-day time limit, but provides
an exception for petitions based on grounds arising
after the limit: “Any petition for review under this
subsection 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.”
Section 7607(d) of Title 42 sets forth provisions for
various rulemakings under the Clean Air Act, including
for the “promulgation or revision of any regulation”
involving the RFS program. Id. § 7607 (d)(1)(E).
Section 7607 (d)(7)(B) addresses various issues regarding exhaustion, agency reconsideration, and judicial
18a
review. The first sentence of that provision imposes a
conventional exhaustion requirement, limiting judicial
review to objections “raised with reasonable specificity
during the period for public comment.” The second
sentence requires EPA to reconsider regulations in
certain narrow circumstances: “If the person raising
an objection can demonstrate to the Administrator
that it was impracticable to raise such objection within
such time or if the grounds for such objection arose
after the period for public comment (but within the
time specified for judicial review) and if such objection
is of central relevance to the outcome of the rule, the
Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural
rights as would have been afforded had the information
been available at the time the rule was promulgated.”
The third sentence of section 7607(d)(7)(B) makes any
“refusal” to provide such mandatory reconsideration
judicially reviewable.
At various times in this litigation, the petitioners
have asserted three different jurisdictional theories.
First, EPA’s refusal to revise the point of obligation
rule in 2017 was a final action reviewable under the
first sentence of section 7607(b)(1), regardless of the
after-arising provision. Second, EPA’s statements and
actions in its 2014-16 volume regulation constitute
after-arising grounds permitting a challenge to the
point of obligation rule as promulgated in 2010. Third,
these same EPA statements and actions triggered a
right to mandatory reconsideration under section
7607(d)(7)(B), which in turn makes the denial of
reconsideration judicially reviewable. As explained
below, we conclude that the first contention is correct,
the second has been abandoned, and the third lacks
merit.
1. Final Agency
7607(b)(1)
19a
Action
Under
Section
In 2016, various refiners petitioned EPA for a
rulemaking to modify the point of obligation rule.
The petitions urged that the need for a modification
became evident in 2015, when EPA waived certain
statutory volume requirements and concluded that
changing economic conditions had made the requirements “impossible to achieve.” 2014-16 Rule, 80 Fed.
Reg. at 77,422/2. In November 2017, EPA denied the
rulemaking petitions on the ground that any current
problems with the RFS program were manageable and
that changing the point of obligation at this juncture
would be disruptive. EPA Denial at 8-9, Alon J.A.
62-63. The refiners sought review of the denial in
December 2017 and January 2018. As petitioners in
this Court, they contend that the November 2017
denial constituted final agency action reviewable
under section 7607(b)(1). We agree.
As noted above, the first sentence of section
7607(b)(1) gives this Court exclusive jurisdiction to
review any nationally applicable “final action” taken
by EPA under the Clean Air Act. The parties agree
that the denial of the rulemaking petitions was
nationally applicable, final, and taken under the Clean
Air Act. It was also agency “action” within the meaning of the statute. That word “bears the same meaning
in [section 7607(b)(1)] that it does under the Administrative Procedure Act,” Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 478 (2001), which defines “agency”
to include EPA, 5 U.S.C. § 551(1), and “agency action”
to include “the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent or denial
thereof, or failure to act,” id. § 551(13) (emphases
20a
added). So, EPA’s denial of the petitions for rulemaking was a reviewable “action.”
The petitions for review were timely. As a general
matter, section 7607(b)(1) requires a petition for
review to be filed within sixty days of when “notice of
such promulgation, approval, or action appears in the
Federal Register.” Here, the “action” at issue—denial
of the petitions for rulemaking—was published in the
Federal Register on November 22, 2017, and the
petitions for review of that action were filed within
sixty days of that date. Moreover, this conclusion does
not depend on the after-arising provision. To the
contrary, because the petitions for review were filed
within sixty days of the “action” under review, the
exception for “grounds arising after such sixtieth day”
was not triggered.
Our caselaw confirms this framing of the jurisdictional issue. In Massachusetts v. EPA, 415 F.3d 50
(D.C. Cir. 2005), this Court held that EPA’s denial of
a petition to regulate greenhouse gas emissions as
air pollutants was itself “final action” reviewable
under section 7607(b)(1). See id. at 53-54 (opinion of
Randolph, J.); id. at 61 (Sentelle, J., concurring in the
judgment). The Supreme Court reversed our judgment
on the merits, but agreed that we had jurisdiction.
Massachusetts v. EPA, 549 U.S. 497 (2007). In
particular, the Court noted that section 7607(b)(1)
“expressly permits review” of EPA’s “rejection of [a]
rulemaking petition.” Id. at 520, 528; see also id. at
517 (section 7607(b)(1) affords “the right to challenge
[this] agency action unlawfully withheld”). Likewise,
in Natural Resources Defense Council v. EPA, 824 F.2d
1146 (D.C. Cir. 1987) (en banc) (NRDC), we held that
a 1985 decision to withdraw proposed amendments to
certain 1976 regulations—which we described as a
21a
“decision not to amend” the regulations—was “reviewable agency action” under section 7607(b)(1). Id. at
1150 (quotation marks omitted). We concluded that
the petition for review at issue, which on its face
challenged the 1985 withdrawal decision, was not, in
substance, an untimely “‘back-door’ challenge to the
1976 regulations.” Id. On that point, we reasoned that
the petitioners claimed legal errors in the 1985 withdrawal and sought vacatur only of that order. Likewise,
in this case, the petitions for review filed in 2017 and
2018 raise no back-door challenge to the 2010 regulation: the petitions contend that EPA in 2017 arbitrarily
refused to take account of changing economic conditions, and they seek vacatur only of the 2017 order
denying a new rulemaking going forward.
Background principles of administrative law reinforce our conclusion that the denial of a petition to
modify a rule based on changed circumstances is itself
a reviewable order. Ordinarily, the denial of a petition
to amend or rescind a regulation is judicially reviewable. See, e.g., NLRB Union v. FLRA, 834 F.2d 191,
195-96 (D.C. Cir. 1987). When the petition to amend
attacks defects in the regulation as originally promulgated, and when the time limit for seeking review of
the regulation has passed, questions can arise about
whether the time limit is being improperly circumvented. In these circumstances, we have held that the
petitioner cannot raise procedural challenges to the
regulation, but can raise substantive arguments that
the regulation is unauthorized by or conflicts with a
statute. See id. at 196-97. But the circumvention
concern does not even arise when the petitioner raises
arguments about changed circumstances or new
information. Those kinds of arguments—that recent
developments compel the amendment of an older
regulation—are always cognizable through review of
22a
the denial of a petition to amend, though they trigger
an “extremely limited” review on the merits. Id. at 196.
Our decision today harmonizes the judicial-review
provisions of the Clean Air Act with this general
background principle.
EPA recognizes the general rule that, under the
NLRB Union line of cases, the denial of a petition to
amend a rule is a reviewable order, which supports
both challenges based on recent developments and
substantive challenges to the original regulation.
Nonetheless, EPA urges a different rule where the
applicable judicial-review provision contains a time
limit for seeking review and an exception for grounds
arising after the time limit, as in the Clean Air Act. In
those circumstances, according to EPA, a challenge to
the denial of a petition to amend is untimely—and the
denial is thus entirely unreviewable—unless the afterarising provision is satisfied. EPA rests this conclusion
on National Mining Ass’n v. Department of Interior, 70
F.3d 1345 (D.C. Cir. 1995), and American Road &
Transportation Builders Ass’n v. EPA, 588 F.3d 1109
(D.C. Cir. 2009) (ARTBA), but neither decision supports its position.
National Mining involved judicial review under the
Surface Mining Control and Reclamation Act (SMCRA),
which requires petitions for review to be filed “within
sixty days” of the agency action at issue “or after such
date if the petition is based solely on grounds arising
after the sixtieth day.” See 70 F.3d at 1350. In 1986,
parties petitioned the Department of Interior to
rescind a 1979 SMCRA regulation on two grounds.
First, the petitioners argued that the rule was inconsistent with the statute—an argument attacking the
regulation itself and “available” when the regulation
was originally promulgated. See id. After the agency
23a
declined to rescind the rule, the challengers sought
judicial review. We held that the after-arising provision made this first challenge untimely, by explicitly
requiring challenges to a regulation either to be filed
“within the statutory period” or to “meet the afterarising test.” Id. at 1350-51. At the same time, however,
we held that the petitioners’ second challenge—to the
agency’s 1986 decision refusing to “repeal” the regulation based on changed circumstances—was timely and
reviewable. Id. at 1352. To be sure, we described the
latter challenge as resting on “grounds that arose after
the sixtieth day.” Id. But we failed to explain what
jurisdictional theory that observation supported: a
challenge to the 1979 regulation rendered timely by
the after-arising exception; or a challenge, in substance as well as form, to the 1986 refusal to repeal,
akin to the challenge that we held reviewable in
NRDC. Instead, we simply concluded that, under the
“limited scope of our review,” the agency did not “act[]
unreasonably in denying the petition for rulemaking.”
Id. at 1352-53. Thus, while National Mining blessed
jurisdiction to review agency refusals to amend
regulations based on changed factual circumstances, it
did not ultimately address what we clarify today—the
precise statutory basis for that jurisdiction.
ARTBA applied the reasoning of National Mining to
the Clean Air Act, which also contains a time limit
for judicial review and an exception for after-arising
grounds. ARTBA involved a 2002 petition to amend
1997 regulations on the ground that they allowed
states “to adopt precisely the kinds of regulations that
the statute forbids.” 588 F.3d at 1110. As in National
Mining, the challenge was thus a substantive attack
on a regulation as originally promulgated. We held
that, under National Mining, EPA’s “denial of a
revision-seeking petition does not allow review of
24a
alleged substantive defects in the original rule even
under the deferential standards applicable to review
of such denials, outside the statutory limitations
period running from the rule[’s] original promulgation.” Id. at 1113 (emphasis added). In other words,
National Mining “require[d] us to treat ARTBA’s petition to EPA as a challenge to the regulations it sought
revised.” Id. at 1110. As a result, dismissal was
necessary unless the petition satisfied the exception
for after-arising grounds, which it did not. See id.
Neither decision controls here, where the 2017 and
2018 petitions for review challenge not the point of
obligation regulation as originally promulgated in
2010, but the failure to amend the regulation in light
of changed circumstances flagged by EPA in 2015.
EPA rejected that argument in 2017, and the petitioners sought review of the rejection within sixty days. In
substance as well as form, the challenge was to the
2017 refusal to amend, not to the underlying 2010
regulation. Under these circumstances, there was no
risk of circumventing the original time limit. Therefore,
there was also no reason to treat the 2010 promulgation
and the 2017 refusal to amend as one-and-the-same
agency action, despite binding APA definitions treating
them as separate.
Precedent aside, EPA’s proposed approach—making
the after-arising provision the exclusive vehicle for
challenging refusals to amend regulations based on
new information or changed circumstances—creates
various difficulties. For one thing, there is a conceptual mismatch between that provision and these kinds
of challenges. Though the after-arising exception and
the opportunity to seek rule revision based on postrulemaking events may seem similar, the first allows
an intervening event to secure judicial review on the
25a
basis of defects extant at the time of the rulemaking,
whereas the second allows review on the question
whether intervening events have fatally undermined
the original justification for the rule. The arrow of time
runs forward, not backward, so it is at best awkward—
and at worst incoherent—to speak of a later development rendering unlawful an earlier promulgation.
Economic developments in 2015 may have made it
arbitrary for EPA to adhere to the point of obligation
rule in 2017, but they cannot have retroactively made
arbitrary its promulgation in 2010.
Even worse, the Clean Air Act’s after-arising provision, if used to judge the timeliness of challenges based
on new information, would be difficult to apply, capriciously narrow, or both. To satisfy that provision, a
petition for review must be both (i) based “solely” on
after-arising grounds and (ii) filed “within sixty days
after such grounds arise.” 42 U.S.C. § 7607(b)(1). Yet
the case for changing an environmental regulation will
almost never manifest itself at one discrete moment.
Instead, it will accumulate progressively over time, as
scientific knowledge advances or economic conditions
change. And so, under EPA’s approach, the relevant
filing deadlines would become practically unknowable.
When did some environmental risk become serious
and obvious enough to compel a rulemaking to
strengthen an existing regulation? That will usually
be a hard question, and it would be little short of
miraculous if the answer turned out to be on a date
certain within sixty days of the filing of a petition for
review, as required to satisfy the after-arising provision.
In contrast, the approach we have sketched out
produces simple questions and discernible deadlines:
ask when EPA denied the rulemaking petition, then
add sixty days. If possible, we should avoid trying to
26a
fix arbitrarily precise accrual dates for events that
develop incrementally over time. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 115-21
(2002). And we should avoid jurisdictional tests that
are complex as opposed to straightforward. See, e.g.,
Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Treating
the denial of a petition to amend a rule based on
changed circumstances as reviewable agency action
honors both principles, while attempting to shoehorn
such denials into the after-arising provision does the
opposite.
We acknowledge that, in Oljato Chapter of Navajo
Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975), we
assumed that the after-arising provision would govern
review of orders denying petitions to modify EPA rules
based on changed circumstances. But our only holdings
were that such petitions must first be presented to
EPA, id. at 666, and then are reviewable directly in
the courts of appeals, id. at 657-65. Moreover, our
assumption was understandable in context; the petitioners had missed the statutory deadline to file a
petition for review (then thirty days), see id. at 657, so
they pressed alternative jurisdictional theories (involving either district-court review or the after-arising
provision) that would avoid that deadline. Furthermore,
we expressly reserved the precise bounds of what
constituted a petition based solely on after-arising
grounds. See id. at 666-68. Finally, we stressed that
review should generally be available “when new
information casts doubt upon the validity of a
[regulatory] standard.” Id. at 665. At the time, the
after-arising provision contained no separate deadline
requiring a petition for review to be filed within sixty
days of the after-arising ground. See id. at 657 n.3. So
the difference between “direct review” of a regulation
through the after-arising provision and review of a
27a
“refusal to revise” the regulation appeared largely
semantic. See id. at 666. But, two years after Oljato
was decided, Congress amended section 7607(b)(1) to
include the separate filing deadline, see Pub. L. No. 9595 § 305(c)(3), 91 Stat. 685, 776 (1977), which, as
explained above, made the after-arising provision a
singularly poor vehicle for securing the review that
Oljato assumed would be readily available.
After Oljato, we held in Group Against Smog &
Pollution v. EPA, 665 F.2d 1284 (D.C. Cir. 1981), that
the failure to challenge a 1974 regulation within the
original sixty-day deadline did not bar “judicial review
of the agency’s subsequent refusal to revise the
standard on the basis of new information.” Id. at 1291.
Quoting liberally from Oljato, we suggested that such
review would proceed through the after-arising provision. Id. at 1289. But we permitted review even though
the after-arising provision, as amended, could not
have applied. The case involved comments filed with
EPA in April 1977, which we treated as a petition for
a rulemaking. Id. at 1290 & n.47. On April 13, 1978,
EPA declined to amend the rule as requested. Id. at
1288. The ensuing petition for review was filed on
June 12, 1978—more than a year after the technological changes discussed in the comments, but precisely
sixty days after the refusal to amend. See id. Because
the petition for review was not filed within sixty days
of the asserted after-arising grounds, the after-arising
provision plainly did not apply. So, review must have
rested on the theory that the refusal to amend was
itself a reviewable action triggering its own sixty-day
filing window.
The approach we follow here—treating denials of
rulemakings based on new facts as independently
reviewable decisions—does not reduce the after-arising
28a
provision to surplusage. Our cases have recognized
other circumstances triggering the after-arising provision, including judicial decisions that significantly
“changed the legal landscape” faced by petitioners,
Honeywell Int’l, Inc. v. EPA, 705 F.3d 470, 473 (D.C.
Cir. 2013), and “the occurrence of an event that ripens
a claim,” Coalition for Responsible Regulation v. EPA,
684 F.3d 102, 129 (D.C. Cir. 2012) (per curiam). In
cases like these—where, for example, an intervening
statute, regulation, or judicial decision extends old
regulations to new parties—the after-arising ground is
easily dated, the relevant filing deadlines are clear,
and so the provision functions predictably. Moreover,
where the after-arising provision does apply, it permits the petitioner to contend not only that changed
circumstances warrant amending an existing regulation but also that the regulation was unlawful as
originally promulgated. See, e.g., Honeywell, 705 F.3d
at 473.
For these reasons, we conclude that we have
jurisdiction to consider the petitioners’ argument that
EPA arbitrarily refused to amend the point of
obligation rule based on the changed circumstances
cited by the petitioners.
2. After-Arising
7607(b)(1)
Grounds
Under
Section
The February 2016 petitions for review, filed before
EPA resolved any of the rulemaking petitions, rested
on the alternative jurisdictional theory that EPA’s
publication of the 2014-16 volume requirements constituted an after-arising ground within the meaning of
section 7607(b)(1). Our conclusion above does not moot
this question, because if this alternative theory were
valid, then the petitioners could directly attack the
point of obligation rule as originally promulgated.
29a
Nonetheless, the petitioners have abandoned this
theory of jurisdiction. In their merits briefs, they never
actually attack the 2010 rule as originally promulgated; instead, they challenge only the 2017 denial of
their rulemaking petitions. Moreover, in requesting
relief, they do not ask us to set aside the 2010 rule, but
only to “vacate the [2017] Denial[] and remand to
EPA” for a rulemaking to change the point of obligation rule going forward. Alon Br. 58. And at oral
argument, they disclaimed any challenge to the 2010
rule itself and confirmed that their only challenge was
to EPA’s 2017 refusal to revise the point of obligation
rule. See Rec. of Oral Argument at 2:18:50-2:19:15.
3. Mandatory Reconsideration Under Section
7607(d)(7)(B)
Finally, the petitioners assert jurisdiction under
section 7607(d)(7)(B), on the ground that EPA erroneously denied petitions for mandatory reconsideration
of the point of obligation rule. To review, section
7607(d)(7)(B) provides in relevant part that only
objections “raised . . . during the period for public
comment” may be “raised during judicial review.” But
if the objector “can demonstrate to the Administrator
that it was impracticable to raise such objection within
such time or if the grounds for such objection arose
after the period for public comment (but within the
time specified for judicial review) and if such objection
is of central relevance to the outcome of the rule,” then
EPA must “convene a proceeding for reconsideration
of the rule,” and any refusal to do so is judicially
reviewable. Here, the petitioners assert that the
ground for their objections—EPA’s statements and
actions in its 2014-16 volume regulation—arose “after
the period for public comment” on the 2010 point of
30a
obligation rule, and that the objections are “of central
relevance to the outcome of the rule.”
The petitioners misapprehend the statutory text
and structure. Section 7607(d)(7)(B) does not extend
the jurisdictional deadline to seek judicial review
imposed in section 7607(b)(1); instead, it specifies a
non-jurisdictional exhaustion requirement. See EPA v.
EME Homer City Generation, L.P., 572 U.S. 489, 512
(2014). Its first sentence generally requires parties
to raise objections “during the period for public
comment” in order to later present them in court. Its
second sentence allows a narrow exception when a
centrally important objection cannot feasibly be raised
during the comment period—either because “the grounds
for such objection arose after the period for public
comment,” or because commenting was otherwise
“impracticable.” If an objection fits within this exception, the consequences are weighty: EPA must grant
reconsideration and conduct a new, full-dress, noticeand-comment rulemaking. And if EPA denies
reconsideration, the objector may seek judicial review.
This “limited exception” to the normal exhaustion
deadline, Util. Air Regulatory Grp. v. EPA, 744 F.3d
741, 746 (D.C. Cir. 2014), does not come with a free
pass from the subsequent deadline to seek judicial
review. To the contrary, the second sentence of section
7607(d)(7)(B) covers only objections that arise after
the close of the comment period, yet within the time
specified for judicial review. As noted above, that time
for judicial review—sixty days from the promulgation
of the final rule—is specified in section 7607(b)(1).
Section 7607(d)(7)(B) does not enlarge that filing period,
but merely fills a narrow gap within it: allowing
orderly exhaustion of important objections that “first
became known to the petitioner after the comment
31a
period ended, but before the period for petitioning for
review expired.” Am. Petroleum Inst. v. Costle, 665
F.2d 1176, 1192 (D.C. Cir. 1981). We recognize that, as
a textual matter, the statutory phrase “but within the
time specified for review” qualifies the requirement
that the grounds must have arisen “after the period for
public comment,” but not the alternative requirement
that “it was impracticable” to raise the objection
“during the period for public comment.” However, the
petitioners do not invoke the impracticability prong of
section 7607(d)(7)(B). Moreover, we have construed
that prong to cover instances when the final rule was
not a logical outgrowth of the proposed rule, Clean Air
Council v. Pruitt, 862 F.3d 1, 10 (D.C. Cir. 2017) (per
curiam), which likewise involve problems during the
period for public comment on or petitioning for review
of the regulation itself—not problems that arise when
circumstances change years or decades later.
The petitioners argued in briefing that the “time
specified for judicial review” referenced in section
7607(d)(7)(B) encompasses not only the initial sixtyday window after a rule’s promulgation, but also the
secondary sixty-day limit from after-arising grounds
in the fourth sentence of section 7607(b)(1). But as
noted above, the petitioners abandoned at oral argument any reliance on the latter after-arising provision.
Moreover, their theory would transform what we have
described as a “limited” gap-filling provision, Util. Air
Regulatory Grp., 744 F.3d at 746, into a perpetually
looming threat of mandatory notice-and-comment
reconsideration. Tellingly, the petitioners can cite no
case employing section 7607(d)(7)(B)’s mandatory
reconsideration procedure for objections that arose
after the close of the initial window for judicial review.
Their interpretation would “make a mockery of
Congress’ [s] careful effort to force potential litigants
32a
to bring challenges to a rule issued under this statute
at the outset.” Am. Rd. & Transp. Builders Ass’n v.
EPA, 705 F.3d 453, 458 (D.C. Cir. 2013) (quotation
marks omitted).
Because the petitioners’ objections to the point of
obligation rule did not arise within the initial window
for judicial review of the 2010 point of obligation rule,
but only some five years later, EPA properly denied
mandatory reconsideration.
B. Merits of Challenges to EPA’s Refusal to
Revise the 2010 Point of Obligation Rule
The Alon Petitioners offer an array of arguments to
challenge the denial. None, however, is persuasive.
We are reviewing EPA’s denial of a petition for
rulemaking to amend the agency’s point of obligation
rule. See supra Part IV.A.1. Accordingly, our review is
“‘extremely limited’ and ‘highly deferential.’” New York
v. EPA, 921 F.3d 257, 261 (D.C. Cir. 2019) (quoting
Massachusetts, 549 U.S. at 527-28). “To set aside the
agency’s judgment, [we] must conclude that EPA had
not ‘adequately explained the facts and policy concerns
relied on’ or that those facts did not ‘have some basis
in the record.’ Id. (quoting WildEarth Guardians v.
EPA, 751 F.3d 649, 653 (D.C. Cir. 2014)). We have no
basis for such a conclusion. In denying the petition for
rulemaking, EPA considered the “information currently before” it and determined “that the point of
obligation is appropriately placed,” wrestling with the
petitioners’ claims to the contrary. EPA Denial at 8,
Alon J.A. 62. As is evident from our discussion below,
EPA did so with enough thoroughness and reasonableness to satisfy our limited, deferential review.
33a
We start with EPA’s reasoning, which petitioners
say is arbitrary and capricious. See 42 U.S.C.
§ 7607(d)(9)(A).
At the root of petitioners’ claim is a single premise:
that the current point of obligation misaligns incentives by requiring those who refine fossil fuel, but not
those who blend it, to meet the RFS program’s annual
standards. In petitioners’ view, this misalignment
forces refiners to purchase RINs to satisfy their RFS
obligations, jacking up their costs, while giving windfall profits to blenders, who produce (but don’t consume)
RINs. From this cycle of “RINsanity,” petitioners say,
flow harms galore. Alon Reply Br. 25. Higher RIN
prices not only threaten the financial viability of
refiners (putting our economy and energy security in
jeopardy), see, e.g., Alon Br. 46, but they incentivize
RIN hoarding, which feeds market volatility, and gives
some market participants an unfair leg up, see, e.g., id.
at 40.
The problem with this argument, however, is that
EPA reasonably explained why, in its view, there is no
misalignment in the RFS program. According to EPA,
refiners “recover the cost of the RINs they purchase”
by passing that cost along in the form of “higher prices
for the petroleum based fuels they produce.” EPA
Denial at 25, Alon J.A. 79. It grounded that conclusion
in studies and data in the record. EPA and the authors
of the pertinent studies took advantage of the fact that
there are pairs of petroleum products in which one
variant is subject to the RIN obligation (such variants
being awkwardly called “obligated fuels”), whereas its
not-quite-identical twin is not. For example, gasoline
and diesel sold for use in the United States are
“obligated,” whereas the same fuels sold for export are
not. EPA Denial at 23, Alon J.A. 77. The same goes for
34a
domestic diesel fuel, which is “obligated,” and jet fuel,
which is not. Christopher R. Knittel et al., The PassThrough of RIN Prices to Wholesale and Retail Fuels
Under the Renewable Fuel Standard 4 (July 2015)
(Knittel), Alon J.A. 534. Comparing these pairs, the
agency found that as RIN prices increased, a gap
“open[ed] up between” the price for obligated and
unobligated fuels, a gap rather precisely matching
the contemporaneous increase in RIN price—a strong
indication that refiners were “recoup[ing] the costs
associated with RIN prices.” EPA Denial at 23, Alon
J.A. 77.
Further confirming the price relationship, Professor
Knittel and his colleagues found that 73% of a change
in RIN price was passed through in the form of higher
petroleum prices in the same day, 98% within two
business days. Knittel 26, Alon J.A. 536.
Reviewing the findings, EPA (accurately) reported
that the papers by Knittel and his colleagues, and by
Argus Consulting Services, “concluded that the RIN
cost was generally included in the sale prices of
obligated fuels.” EPA Denial at 25, Alon J.A. 79; see
Knittel 26, Alon J.A. 536; Argus Consulting Services,
Do Obligated Parties Include RINs Costs in Product
Prices? 15 (Feb. 2017), Alon J.A. 564 (“There are very
specific correlating price data for diesel that indicate
that refiners . . . pass along the RINs cost . . . .”).
A similar analysis, EPA concluded, reveals that just
as (obligated) refiners do not pay excess costs, neither
do blenders (who are not obligated under the program)
nor integrated refiners (who perform their own inhouse blending) reap windfall profits. True, both earn
RINs, without purchasing them on the open market,
by blending renewable fuel into petroleum blendstock.
And true, as well, both can sell those RINs, enjoying
35a
whatever revenues market conditions and their own
efficiencies permit. But as EPA quite accurately
explained, this is only half the equation. In a competitive market there’s no such thing as a free lunch, and
blenders and integrated refiners pay their tab just as
others do; they just do so indirectly. To offer finished
fuel without attached RINs at a competitive price,
these entities must discount their blended fuel by
roughly the value of the RINs that they detached and
kept for themselves. EPA Denial at 29, Alon J.A. 83.
In other words, they “sell the finished transportation
fuel at a loss,” but “maintain[] profitability through
RIN sales.” Id. at 27-28, 29, Alon J.A. 81-82, 83.
To be sure, in response to EPA’s proposed denial,
commenters criticized the studies relied on by the
agency. They contended, for example, that Professor
Knittel and his colleagues erred by removing certain
spreads from the analysis, by including others, and by
pooling the results of various comparisons. See EPA
Denial at 25, Alon J.A. 79. But petitioners have not
raised these arguments here, and for that reason we
do not consider them. While petitioners do complain
that EPA relied on a “preliminary” analysis, see Alon
Br. 54; Alon Reply Br. 23, that objection—whatever its
persuasive force—says nothing about the other studies
in the record (for example, by Professor Knittel et al.).
Petitioners try, instead, to trace various refiner
problems to EPA’s refusal to obligate blenders. They
suggest that the alleged misplacement of the point of
obligation causes bankruptcies, see, e.g., Alon Br. 3, 47,
and inflicts economic hardship on small refineries, see,
e.g., id. at 49, especially in the form of inflicting wildly
disproportionate RIN acquisition costs on them, see,
e.g., Alon Reply Br. 26. But some of these events
occurred after EPA issued its denial, see, e.g., Alon Br.
36a
49 (“following the Denial”); Alon Reply Br. 26 (“just
after the Denial”), and are therefore not properly
before us, see Environmental Defense Fund, Inc. v.
Costle, 657 F.2d 275, 284 (D.C. Cir. 1981). More
importantly, the claims presuppose that refiners
cannot recover their RIN costs and that blenders reap
windfall profits—suppositions that, as discussed
above, EPA reasonably rejected.
Petitioners respond by plucking snippets from the
denial, stringing them together with contrasting
(bolded) conjunctions, and asserting that EPA’s
“discussion of RIN prices” is “irreconcilably inconsistent.” Alon Br. 53. But we find no inconsistency on
EPA’s part.
Take one of petitioners’ examples:
. . . RIN prices had no “significant impact on retail
gasoline (El 0) prices,” JA75;
although “RINs . . . provide a price signal to
consumers to help achieve . . . greater renewable
fuel production and use,” JA75.
Alon Br. 53 (second and third alterations in original)
(quoting EPA Denial at 21, Alon J.A. 75). At first
blush, the two comments, located on the very same
page, seem inconsistent. How could RIN prices have
no “significant impact” on retail prices, while, at the
same time, provide “a price signal to consumers”?
They can do so for the simple reason that the
remarks refer to different things, a detail omitted from
petitioners’ brief. This becomes apparent when the
passage from which petitioners plucked their quotes
(bolded and underscored below) is viewed in full:
External, non-EPA assessments similarly
concluded that increased RIN prices had
37a
not had a significant impact on retail
gasoline (E10) prices. When RIN prices rise,
the market price of the petroleum blendstocks
produced by refineries also rise to cover the
increased RIN costs, in much the same way
as they would rise in response to higher crude
oil prices. The effective price of renewable
fuels (the price of the renewable fuel with
attached RIN minus the RIN price), however,
decreases as RIN prices increase. When
renewable fuels are blended into petroleum
fuels these two price impacts generally offset
one another for fuel blends such as E 10 with
a renewable content approximately equal to
the required renewable fuel percentage
standard. Higher RIN prices also generally
result in higher prices for fuels with lower
renewable content (such as E0 or petroleum
diesel) and lower prices for fuels with higher
renewable content (such as E85 or B20). The
cost of the RIN therefore serves as a crosssubsidy, reducing the price of renewable fuels
and increasing the price of petroleum based
fuels in transportation fuel blends, thus
incentivizing increased blending of renewable
fuels into the transportation fuel pool. In this
way the RINs also help provide a price
signal to consumers to help achieve the
Congressional goals of greater renewable
fuel production and use. Fuels with higher
renewable content are relatively cheaper to
consumers than they would be absent high
RIN prices, while fuels with lower renewable
content are relatively more expensive when
RIN prices are high.
EPA Denial at 20-21, Alon J.A. 74-75.
38a
As we can see, the first statement (no significant
price impact) is referring to the price of E10—a blend
of 90% gasoline, 10% ethanol. As EPA explained, RINs
work as a “cross-subsidy,” effectively taxing the use of
petroleum-based fuels (e.g., gasoline) and subsidizing
the use of renewables (e.g., ethanol) in making a
blended transportation fuel like E10. EPA Denial at
21, Alon J.A. 75.
Before we dig in further, let’s take a step back. We
must first recognize that EPA assumes that we are
talking of a market where the RFS program, in effect,
mandates minimum levels of renewables in marketed
fuels, a mandate that necessarily impacts fuel prices.
EPA is not making a claim that the mandatory
inclusion of renewables in transportation fuel renders
a gallon of gasoline lawfully purchased at the pump
cheaper than it would have been absent the RFS
program.
To see what this means, start on the subsidy side:
Suppose a blender can realize $2.25 on a gallon of
ethanol with an attached RIN. If the blender can
detach and sell that RIN for $0.05, then the net
ethanol value is only $2.20—a $0.05 savings that in a
competitive market should pass through to consumers.
Now take the tax side: Because refiners must purchase
RINs to satisfy the RFS obligations that arise from
selling gasoline to blenders, a blender’s value for a
gallon of gasoline may rise, due to the RFS program,
from, say, $2.75 to $2.76. See Dallas Burkholder,
Office of Transportation & Air Quality, EPA, A
Preliminary Assessment of RIN Market Dynamics,
RIN Prices, and Their Effects 17, EPA-HQ-OAR-20160544-0009 (May 14, 2015), Alon J.A. 337. As a result
of both price impacts, EPA described, blended fuels
with a higher percentage of renewable content (e.g.,
39a
85% ethanol) will be cheaper than they would have
been (absent the program), whereas fuels with a lower
percentage of renewable content (e.g., pure gasoline)
will be more costly than they would have been (absent
the program). EPA Denial at 21, Alon J.A. 75. For E10,
the “two price impacts generally offset one another,”
so (back to the first statement) any change in RIN
price generally has no “significant impact on” the E10
price. Id.
But that’s just E10. There is an effect (of differing
magnitude) on, say, E85 or E0. And that is where the
second statement (“provide a price signal”) comes in:
the signal arises from a comparison of relative prices
across the spectrum of transportation fuels. Again, as
EPA explains, “[f]uels with higher renewable content
are relatively cheaper to consumers than they would
be absent high RIN prices, while fuels with lower
renewable content are relatively more expensive when
RIN prices are high.” Id. The two statements are
consistent.
Continuing the search for inconsistency, petitioners
direct our attention to “EPA’s past pronouncements.”
Alon Br. 50. In them, they see an irrational “aboutface”—with EPA saying, at first, that “low RIN prices
[were] a sign that the [RFS program] was working,”
but claiming, now, “that high RIN prices are . . .
desirable.” Id. at 51-52. Again, that’s not quite right.
All EPA originally said was that when it first adopted
the point of obligation, it did so based, in part, on its
“expectation at that time that there would be an excess
of RINs at low cost.” Regulation of Fuels and Fuel
Additives: Changes to Renewable Fuel Standard
Program, 74 Fed. Reg. 24,904, 24,963/2 (May 26, 2009)
(proposed rule); see also Alon Br. 50 (citing EPA Denial
at 13, Alon J.A. 67 (citing, in turn, 74 Fed. Reg. at
40a
24,963)). EPA did not suggest that low RIN prices were
a sign of market health—nor that high prices were a
cause for alarm.
In any case, EPA addressed petitioners’ concern
over high RIN prices head on; the agency explicitly
determined, on the current record, that “higher RIN
prices” are not “indicative of a dysfunctional RIN
market.” EPA Denial at 19, Alon J.A. 73. Rather, EPA
explained, these prices accurately reflect the increasing cost associated with “getting ever-greater volumes
of renewable fuel into the transportation fuel pool—
the explicit goal [of] the RFS program.” Id. Put more
bluntly, the increases in RIN prices are a completely
understandable effect of the program’s ever-increasing
pressure to expand renewable volumes. Pushing out
along the supply curve takes the raw market price of
the RIN-eligible fuel steadily into higher realms—
except to the extent that production innovations or
economies may tend to lower costs. So far as appears,
it has nothing to do with EPA’s allocation of the
obligation.
What about EPA’s concern, petitioners ask, that
including blenders in the point of obligation would
expand the number of obligated parties and, as a
result, ratchet up the program’s complexity? Isn’t that
hard to square with EPA’s claim, made years earlier,
that “essentially all downstream blenders . . . are
[already] regulated parties”? Alon Br. 42 (quoting 75
Fed. Reg. at 14,722/2). Again, not at all. Although the
participation of all (or nearly all) blenders in the
RIN market subjects them to RFS registration,
recordkeeping, and reporting requirements, “the majority of these downstream [regulated] parties are . . .
currently not obligated parties.” EPA Denial at 69,
Alon J.A. 123 (emphasis added). As EPA explained,
41a
there “is a significant distinction between being a
‘regulated party’ and being an ‘obligated party’” Id.
“Obligated parties must meet all of [the requirements
faced by regulated parties] and also calculate an
annual renewable volume obligation, acquire the
appropriate number of RINs in the market, practic[e]
due diligence to ensure [the RINs’] validity, file annual
compliance reports demonstrating compliance, and
maintain records to that effect.” Id. at 69 n.205, Alon
J.A. 123 (emphasis added); see, e.g., 40 C.F.R.
§§ 80.1427(a), 80.1450(a), 80.1451(a), 80.1454(a). It
was not unreasonable for EPA to conclude that imposing these burdens on additional entities would add to
the program’s complexity (and therefore be undesirable absent an adequate offsetting benefit).
Nor was it unreasonable to find that going down
this route—overhauling a foundational element of the
program would create “uncertainty in the fuels marketplace.” EPA Denial at 2, Alon J.A. 56. As EPA said,
“all parties regulated in the RFS program have made
significant investments and decisions about their participation in the program and their position in the
market on the basis of the existing regulations,
including the definition of obligated parties.” EPA
Denial at 79, Alon J.A. 133. In these circumstances, it
isn’t hard to imagine how changing course could throw
players off their game. Of course, as petitioners note,
uncertainty may have “plagued the RFS Program for
years.” Alon Br. 37. But true or not, EPA needn’t pile
on; the cure for uncertainty isn’t spawning more
uncertainty.
Taking a step back, petitioners launch a closing
broadside against the entire process. They assert that
EPA “disregarded this Court’s remand” in ACE, 864
F.3d at 737, and arbitrarily credited some comments
42a
over others. Alon Br. 31-32, 55-56. But the ACE
remand required, at most, that the agency “address
the point of obligation issue.” 864 F.3d at 737. And, as
detailed throughout this opinion, the agency has done
so reasonably, analyzing the data and explaining its
decision. Nothing more was required.
* * *
We have considered the Alon Petitioners’ other
arguments and have found them to be either without
merit or, in the case of the argument relying on 42
U.S.C. § 7545(o)(5)(A), see Alon Br. 34, insufficiently
developed, see, e.g., Masias v. EPA, 906 F.3d 1069,
1077 (D.C. Cir. 2018). For the foregoing reasons, the
petitions for review are denied.
V. 2017 Annual Volumetric Rule
We turn now to the Coffeyville Petitioners’
challenges.
A. Point of Obligation
We first consider the Coffeyville Petitioners’ challenge to EPA’s decision in the 2017 Rule not to reassess
which categories of industry players are “obligated
parties” under the renewable fuel program. As the
Coffeyville Petitioners read it, the statutory provision
requiring EPA to set annual renewable fuel percentage standards also imposes on EPA a nondiscretionary
duty to reconsider—every year—which types of entities
are obligated to demonstrate to EPA compliance with
the percentage standards. See 42 U.S.C. § 7545(o)(3)(B).
They claim EPA shirked that duty when it treated the
issue as beyond the scope of its 2017 annual rulemaking. EPA counters that it identified the obligated
parties in 2007 pursuant to Congress’s mandate to set
“compliance provisions” for the new renewable fuel
43a
program, id. § 7545(o)(2), reaffirmed that decision in
2010, and that nothing in the mandate to calculate the
annual percentage standards requires it to reconsider
the point of obligation each year. EPA also asserts that
it appropriately addressed the Coffeyville Petitioners’
complaints that it obligated the wrong parties in a
separate proceeding from its annual volumetric
rulemaking.
1. Jurisdiction
EPA and a coalition of Respondent-Intervenors
representing the renewable fuel and refinery industries
assert that we lack jurisdiction because the Coffeyville
Petitioners effectively challenge the compliance rule
that has been on the books for a decade or so, see
40 C.F.R. § 80.1406(a)(1), and did not petition within
60 days of its publication or within 60 days of any
valid “grounds arising” thereafter. See 42 U.S.C.
§ 7607(b)(1); Med. Waste Inst. v. EPA, 645 F.3d 420,
427 (D.C. Cir. 2011). But petitioners are not challenging EPA’s decision to adopt the rule in 2007 or retain
it in 2010. Rather, they contend that the provision
calling on EPA to set annual volumes of biofuels
“applicable to refineries, blenders, and importers, as
appropriate,” requires EPA to reassess each year
whether the point of obligation set when the agency
established the program is still “appropriate,” or if
EPA should re-assign it and restructure the RIN
market and other compliance infrastructure going
forward. See 42 U.S.C. § 7545(o)(3)(B)(ii)(I). That
challenge was timely filed within 60 days of the
promulgation of the annual fuel standards. See supra
Part IV.A.1.
44a
2. Merits
This dispute turns on the roles of two provisions of
the statute directing the EPA to establish and run a
Renewable Fuel Program, 42 U.S.C. § 7545(o)—
paragraphs (2) and (3).
Paragraph (2) directs EPA to “promulgate regulations”
setting up a program to “ensure that transportation
fuel sold or introduced into commerce in the United
States . . . contains at least the applicable volume[s] of
renewable fuel,” as specified in subparagraph (2)(B).
Id. § 7545(o)(2)(A)(i). Among the parameters Congress
required EPA to include were “compliance provisions
applicable to refineries, blenders, distributors, and
importers, as appropriate,” to ensure that the requirements of paragraph (2), including the applicable volume
requirements specified in subparagraph (2)(B), are
met. Id. § 7545(o)(2)(A)(iii)(I), (B). There is no question
that EPA has authority to set those parameters,
including the point of obligation, and to adjust them if
a change is needed.
Paragraph (3), in turn, requires EPA to determine
and publish annual renewable fuel obligations designed
to “ensure[] that” the applicable volumes specified in
paragraph (2) are met. Id. § 7545(o)(3)(B)(i). Those
renewable fuel obligations must:
(I) be applicable to refineries, blenders, and
importers, as appropriate;
(II) be expressed in terms of a volume
percentage of transportation fuel sold or
introduced into commerce in the United
States; and
45a
(III) . . . consist of a single applicable
percentage that applies to all categories of
persons specified in subclause (I).
Id. § 7545(o)(3)(B)(ii)(I)–(III).
The parties’ dispute centers on the meaning of “as
appropriate” in subclause (3)(B)(ii)(I). The Coffeyville
Petitioners contend that the phrase unambiguously
requires EPA annually to reconsider which parties it
is “appropriate” to obligate to meet the renewable fuel
obligations. EPA responds that the statute is, at most,
ambiguous as to whether Congress expected EPA
annually to revisit the obligated-parties designation,
or whether the agency may generally rely on the
“appropriate[ness]” finding it made pursuant to its
paragraph (2) authority. We begin by asking “whether
Congress has directly spoken to the precise question
at issue,” and conclude that it has not. Chevron, 467
U.S. at 842.
EPA reads “as appropriate” in paragraph (3) to
mean that the agency has “discretion” to decide
whether, when, and how to reassess which of three
types of industry actors—refineries, blenders, and
importers—should continue to bear the point of
obligation, as originally designated in the compliance
provisions. See EPA Denial, Coffeyville J.A. 779-80. At
oral argument, the agency conceded that its exercise
of this discretion is reviewable, so that the exclusion of
the point of obligation issue from an annual rulemaking could, under other circumstances, constitute an
abuse of discretion. Rec. of Oral Arg. 1:22:22-1:24:00;
1:37:45-1:40:11.
The Coffeyville Petitioners object that the phase
“applicable . . . as appropriate” means applicable as
contemporaneously determined to be appropriate in
46a
the annual volumetric rulemakings. Coffeyville Br. 3033; see also Conc. Op. 4-5, 7. But paragraph (3) does
not specify when or in what context EPA must make
its appropriateness determination, nor does the phrase
“as appropriate” itself specify a particular temporal
dimension—as between, for example, parties appropriately designated in the past (as EPA interprets it)
and parties now appropriately selected (as Coffeyville
insists). The term “appropriate” “naturally and traditionally includes consideration of all the relevant
factors,” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015)
(quoting White Stallion Energy Center, LLC v. EPA,
748 F.3d 1222, 1266 (D.C. Cir. 2014) (Kavanaugh, J.,
concurring in part and dissenting in part)), but it does
not dictate when that consideration must be made.
In other words, the requirement that the point of
obligation be “appropriate” is at most grounds for
assessing whether the agency adequately explained its
policy choices regarding the appropriateness determination, not for imposing our own gloss on that broad
term as a matter of law. See Kisor v. Wilkie, 139 S. Ct.
2400, 2448-49 (2019) (Kavanaugh, J., concurring in
the judgment) (“[S]ome cases involve regulations that
employ broad and open-ended terms like ‘reasonable,’
‘appropriate,’ ‘feasible,’ or ‘practicable.’ Those kinds
of terms afford agencies broad policy discretion, and
courts allow an agency to reasonably exercise its
discretion to choose among the options allowed by the
text of the rule. But that is more State Farm than
Auer” or Chevron (emphasis added)). Here, as explained
below, EPA reasonably exercised its discretion, and
explained its decision, to address the point of obligation issue in a separate proceeding from its annual
volumetric rulemaking.
The fact that paragraphs (2) and (3) both include the
phrase “as appropriate” does not make the Coffeyville
47a
Petitioners’ the only permissible interpretation. Even
if, as our colleague contends, Conc. Op. 7, the two
phrases bear the exact same meaning, but see Coffeyville
Br. 30-31 (arguing that paragraphs (2) and (3) are
“worded differently” and have “different contexts”),
paragraph (3) simply does not dictate when or in what
context EPA must make the appropriateness determination. It is the surrounding context, not the
phrases themselves, that suggests when EPA might
make that choice.
Unable to point to any express textual requirement
that EPA annually reconsider the point of obligation,
the Coffeyville Petitioners contend that, had Congress
intended to allow EPA in annual volumetric rulemakings to rest on its paragraph (2) appropriateness
determination, subclause (3)(B)(ii)(I) could have more
simply cross-referenced paragraph (2). But replacing
subclause (3)(B)(ii)(I) with a simpler cross-reference
would not have achieved quite the same effect.
While refineries, blenders, importers, and distributors
may all be subject to compliance provisions under
paragraph (2), paragraph (3)’s applicability provision
points to a more limited universe of potential obligated
parties—to refineries, blenders, and importers, but not
distributors. That supports EPA’s understanding of
subclause (3)(B)(ii)(I) as a cross-reference that also
clarifies a limit on EPA’s options in setting the point
of obligation. See 72 Fed. Reg. at 23,923/2 (preamble
for compliance rule referencing paragraph (3)’s applicability provision).
We are unpersuaded by the suggestion that such
limitation was so clear even without subclause
(3)(B)(ii)(I) that EPA’s reading of that applicability
provision renders it superfluous. The suggestion is
that, because distributors do not “introduce” fuel into
48a
commerce, they could not be obligated parties in any
event, with or without the applicability provision. Our
colleague posits that blenders—but not distributors—
can in fact “introduce” transportation fuel into commerce by blending gasoline and diesel fuel with other
fuels that have not already been introduced by
someone else. Conc. Op. 11. But that argument rests
on a complicated series of inferences from spare
statutory text, as well as post-enactment regulations
that do not necessarily show what the statute must
have meant. For example, our colleague reasonably
infers that the national “volume[] of transportation
fuel,” 42 U.S.C. § 7545(o)(3)(A), must be counted at the
first moment each gallon of fuel enters commerce, in
order to avoid double-counting. But, the statute
nowhere states the point directly. Still less clearly
does the statute state our colleague’s corollary—
necessary to the surplusage argument—that the point
of obligation must also be placed, if at all, at the first
moment a gallon of fuel enters commerce. That
corollary is less obvious, because the statutory link
between the point of obligation and entry into
commerce is not ironclad: All parties agree that not
every gallon of transportation fuel must be subject to
the point of obligation upon entry into commerce. The
statute plainly allows EPA to obligate an “appropriate” subset of the three categories of parties. And
obligating blenders would involve double counting
unless the transportation fuel they use to create
blends were not already counted upon its importation
or sale to them. Under the circumstances, it is reasonable to read subclause (3)(B)(ii)(I) as clarifying what is
at best a non-obvious inference that distributors
cannot be subjected to the point of obligation.
So subclause (3)(B)(ii)(I) as EPA reads it is not a
superfluity, but makes clear that EPA may have
49a
permissibly placed the point of obligation on refineries, blenders, and importers, but not distributors. For
the same reason, subclause (3)(B)(ii)(III), which
requires that the annual standards apply “to all
categories of persons specified in subclause (I),” id.
§ 7545(o)(3)(B)(ii)(III), does not contain what our
colleague views as an unnecessary double crossreference to paragraph (2), because it, too, is operative
in not just cross-referencing, but also clarifying a limit
on the three permissible targets of its “single applicable percentage.”
The thrust of the Coffeyville Petitioners’ retort—
that if Congress had wanted to confer discretion or
provide a limiting cross-reference to paragraph (2), it
would have said so more plainly—applies with greater
force against their own reading. Had Congress
intended EPA to consider on an annual basis whether
to redo the point of obligation designation—a designation that no-one disputes is a necessary cornerstone of
the paragraph (2) compliance provisions—it knew how
to impose such a requirement. The Clean Air Act’s
provisions on ambient air quality, for instance, require
EPA to “complete a thorough review” of the air quality
standards “at five-year intervals” and “promulgate
such new standards as may be appropriate.” Id.
§ 7409(d)(1). The Act’s provisions controlling hazardous
air pollutants emitted from major and area sources
require EPA to “review, and revise as necessary” the
applicable emission standards “no less often than
every 8 years.” Id. § 7412(d)(6). Paragraph (3) of the
RFS program, in contrast, does not tell EPA to
“complete a thorough review,” or “review, and revise
as necessary” its point of obligation decision—or
anything even close.
50a
To be sure, EPA’s reading is not ineluctable. We do
not doubt that Congress could have more directly
provided that the renewable fuel obligations do not
apply to distributors. See Conc. Op. 8. But, for the
reasons discussed, we are unconvinced that paragraph
(3) plainly requires EPA to consider adjusting the
point of obligation each year. See Valero Energy Corp.
v. EPA, No. 7:17-cv-00004-O, 2017 WL 8780888, at *4
(N.D. Tex. Nov. 28, 2017) (holding that “there is no
clear statutory mandate . . . obligating [EPA] to evaluate or adjust . . . what entities are ‘appropriate[ly]’
forced to comply with” the annual renewable fuel
obligations (alterations in original) (quoting 42 U.S.C.
§ 7545(o)(3)(B)(ii)(I))). Accordingly, we conclude that
the meaning of “as appropriate” in paragraph (3) is
ambiguous and turn now to whether EPA’s construction is “based on a permissible construction of the
statute.” Chevron, 467 U.S. at 843.
The difficulty of squaring the Coffeyville Petitioners’
reading of “as appropriate” with the structure and
purpose of the statute convinces us of the reasonableness of EPA’s interpretation. As a structural matter,
the RFS program contains not only “annual” volumetric determinations, Conc. Op. 1, but also a slew of
compliance provisions that are not annually redetermined. As a practical matter, the point of
obligation is the foundational “compliance provision”
of the entire renewable fuels program; EPA could not
“ensure” that applicable volumes of renewable fuels
are introduced into the nation’s transportation fuel
supply without designating the parties responsible for
carrying the renewable fuel standards into operation.
Id. § 7545(o)(2)(A)(i). To that end, in writing the
compliance provisions, EPA placed the renewable fuel
obligation on the entities at the head of the United
States supply chain for nonrenewable fuels—domestic
51a
refiners, and importers of fuel refined elsewhere. See
72 Fed. Reg. at 23,923-24. After additional consideration, EPA in 2010 adhered to that decision. See 75 Fed.
Reg. at 14,721-22 (codified at 40 C.F.R. § 80.1406(a)(1));
see also Monroe Energy, 750 F.3d at 912. No one
challenged EPA’s decision in 2007 or 2010, and EPA
declined to revisit the issue in response to comments
in the 2017 annual rulemaking urging it to shift the
2017 point of obligation to blenders. See Response to
Comments at 542, Coffeyville J.A. 761.
The focus of the annual rulemakings, in contrast, is
to translate the applicable volumes—as specified in
paragraph (2), or set according to the process there
described—into percentage requirements for each
renewable fuel. 42 U.S.C. § 7545(o)(3)(B)(ii). It would
be strange indeed if Congress required EPA, as it went
about its annual quantitative standard-setting duties,
also to rethink a choice so basic to the RFS program’s
architecture. This implausibility is illuminated by the
fact that Congress required EPA to facilitate statutory
compliance through a credit trading program, which of
necessity requires some year-to-year stability. See id.
§ 7545(o)(5). EPA responded by setting up the RIN
system, with flexibility anchored to a fixed baseline—
the point of obligation. The compliance system is
flexible in that RINs may be retired in compliance
demonstrations not only in the compliance year during
which they were generated, but also throughout the
ensuing compliance year, 40 C.F.R. § 80.1427(a)(6),
and obligated parties may carry over excess RINs or
RIN deficits from year to year, id. § 80.1427(a)(1), (5)–
(6); see Monroe Energy, 750 F.3d at 913.
Annual changes to the point of obligation could
cause “disparities in RIN-holdings,” leaving formerly
obligated parties with “significantly more RINs,
52a
including carryover RINs, than they desire or can use”
and newly obligated parties with “lower balances than
they would desire to protect themselves against
shortfalls in RIN availability or RIN price volatility.”
EPA Denial at 78, Coffeyville J.A. 850. “[A] change to
the point of obligation could also cause volatility in the
[RIN] market,” inhibiting the “ability [of] parties that
possess excess carryover RINs to recover the cost of
the RINs they hold by selling them to other parties.”
Id. It is not plausible that Congress meant EPA to
consider uprooting the baseline of the RFS program
every year. The real stretch is that Congress would
have imposed such an onerous and potentially disruptive duty merely by use of the phrase “as appropriate.”
The Coffeyville Petitioners’ reading is not made any
more plausible by highlighting the likelihood that, on
annual consideration of the point of obligation, EPA
would only need to consider recent information, and
likely would stay its course. Even if the point of obligation in fact rarely changed, the mere “reconsider[ation]”
of the framework would “likely cause delays to the
investments necessary to expand the supply of
renewable fuels in the United States.” See EPA Denial
at 2, Coffeyville J.A. 774. EPA reasoned that “fuel[]
industry participants [would] withhold significant
investment decisions until the EPA’s final decision
and the fallout from the decision are known.” Id. at 8182, Coffeyville J.A. 853-54. Insisting that the issue be
on the regulatory agenda every year would sow
“significant market uncertainty and potential turmoil”
into the RFS program without offsetting benefit. Id.
Furthermore, any requirement that an agency
repeatedly go through a regulatory process on an issue
that promises to draw a regular parade of criticism
from interest groups with ample resources is itself
53a
burdensome. See AT&T Corp. v. FCC, 220 F.3d 607,
630-31 (D.C. Cir. 2000). This issue is no exception. As
discussed above, EPA in 2016 and 2017 considered and
decided against reopening its point of obligation rule.
In so doing, it received upwards of 18,000 comments
and published an exhaustive, 85-page decision. See
EPA Denial at 1-85, Coffeyville J.A. 771-857. “Given
the time pressure associated with its annual standards rulemaking,” EPA believes it would not be
feasible or worthwhile to undertake such reconsideration annually. Id. at 7 n.10, Coffeyville J.A. 779.
Indeed, as EPA acknowledged at oral argument, the
agency “has been late on [its annual rules] before,”
even “when [it hasn’t] taken up the point of obligation.” Rec. of Oral Arg. 1:25:44-52. “[A]dd[ing] on the”
duty to reassess the point of obligation annually, EPA
tells us, “would be a significant burden.” Id. at 1:25:551:26:05. Our colleague doubts that EPA’s year-to-year
burden would be appreciable, but we see no ground to
question EPA’s judgment to the contrary. It seems
unlikely that Congress wrote the applicability provision in order to heap that annual duty onto EPA’s
plate. It seems even less likely given the absence of
reason to think that yearly second-guessing of program fundamentals makes sense, or that, when and if
the need for a program restructuring arises, EPA
would fail to act. Indeed, the statute elsewhere explicitly requires EPA to conduct “periodic reviews of . . .
the feasibility of achieving compliance with the [applicable volume] requirements.” 42 U.S.C. § 7545(o)(11).
That provision has not been briefed, but would appear
to require EPA to reconsider the point of obligation if
it concluded that its placement was obstructing
compliance.
Finally, EPA’s approach coheres with basic principles of administrative law. In general, the choice
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between various procedural channels lies within the
“informed discretion of the administrative agency.”
SEC v. Chenery Corp., 332 U.S. 194, 203 (1947). That
discretion properly includes judgments about the scope
of rulemakings and when to relegate ancillary issues
to separate proceedings: “Agencies, like legislatures,
do not generally resolve massive problems in one fell
regulatory swoop.” Massachusetts, 549 U.S. at 524;
see, e.g., Grp. Against Smog & Pollution, 665 F.2d at
1292 (“. . . EPA cannot soundly be charged with arbitrariness merely because it chose a separate rulemaking
proceeding as the process for proposing a revised
standard in lieu of an undertaking to do so in the
narrower context of the opacity standard proceedings
as petitioners requested.”). Once the agency has resolved
an issue in a separate proceeding, it may defend
against related criticism by “simply refer[ing]” to the
other proceeding, so long as the “reasoning remains
applicable and adequately refutes the challenge.”
Bechtel v. FCC, 10 F.3d 875, 878 (D.C. Cir. 1993). EPA
reasonably reads “as appropriate,” in paragraph
(3)(B), to leave undisturbed these background norms
of broad but reviewable procedural discretion.
Our holding today does not give EPA the limitless
and unreviewable discretion feared by our colleague.
As we have said, EPA’s determination as to whether it
is “appropriate” to reconsider the point of obligation in
the context of an annual volumetric rulemaking is
reviewable for abuse of discretion. EPA did not abuse
its discretion in refusing to do so here. Indeed, it
considered whether to change the point of obligation
rule in a separate, contemporaneous proceeding that
yielded a final order that we also have reviewed and
found to be adequately justified. See supra Part IV.B.
We do not address whether it would be an abuse of
discretion for EPA to refuse to reconsider the point of
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obligation—in an annual volumetric rulemaking or
otherwise—in extreme circumstances akin to those
posited by our colleague’s hypothetical about the
continuing study of an abolished tort. See Conc. Op. 5.
In sum, we hold that EPA permissibly rejected the
claim that paragraph (3) requires the agency annually
to reassess the point of obligation in the renewable fuel
program. Because EPA has no duty to reconsider the
appropriateness of its point of obligation regulation as
part of its yearly determination of volumetric requirements, it was not arbitrary for EPA to treat comments
complaining that it obligated the wrong parties as
appropriately assessed in a separate proceeding, and
beyond the scope of proceedings for the 2017 volumetric rulemaking. For these reasons, we deny the
Coffeyville Petitioners’ petition.
B. Cellulosic Biofuel Projection
The Coffeyville Petitioners lob a variety of
challenges at EPA’s cellulosic biofuel projection for
2017. Many of these petitioners, however, raised many
of the same arguments before. See ACE, 864 F.3d at
727-29 (addressing challenges to EPA’s 2014-16 projection). We rejected those arguments once—and do so
again.
First, the Coffeyville Petitioners contend that
“EPA’s [m]ethodology” for projecting cellulosic biofuel
production is invalid because it “[c]hronically [o]verestimates [a]ctual [p]roduction.” Coffeyville Br. 40. But
that argument—that EPA has “repeatedly . . . overshot
the mark,” id. at 41—doesn’t apply to the methodology
EPA actually used here, as we found in ACE, 864 F.3d
at 727-28. As we explained when petitioners deployed
this same argument in challenging the 2014-16 projection, “the majority of EPA’s prior overestimations”
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utilized a different methodology—one that we rejected
in API, 706 F.3d at 478-81, and that the EPA
accordingly abandoned. ACE, 864 F.3d at 727. The
new methodology—the one EPA used here—has been
applied only twice before. At the time EPA made its
final evaluation for 2017, that methodology had (as
detailed in the table below) undershot for 2015 and
overshot for 2016. See Assessment of the Accuracy of
Cellulosic Biofuel Production Projections in 2015 and
2016, EPA-HQ-OAR-2016-0004-3687, at 1-4 (Dec. 12,
2016), Coffeyville J.A. 515-18. This is hardly a pattern
of chronic overestimation.
EPA
Actual
RFS
Record
Estimate Production EPA
Compliance
(millions (millions of Error ** Citation
Year
of RINs)
RINs)
Q1
2015
[No Data in the Record]
Q2
Q3
Q4
35.00
53.36
- 34.4%
J.A. 515
230.00
198.39*
+ 15.9%
J.A.
Q1
Q2
2016
Q3
Q4
* At the time of EPA’s assessment, the agency had
actual RIN production data for only the first nine
months of 2016 (123.99 million gallons). To calculate
actual production for the year, EPA extrapolated the
likely RIN generation for the last three months of the
year based on the historical relation (a multiple of 1.8)
between the average quarterly generation in the first
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three quarters and that of the last quarter, yielding a
figure of 74.39 million RINs for the last quarter. See
Coffeyville J.A. 51617.
** The EPA error has been calculated as the
difference between the EPA estimate and actual
production, divided by the actual production.
Second, the Coffeyville Petitioners claim that EPA
failed to generate a projection “based on” the cellulosic
biofuel estimate provided by the Energy Information
Administration (EIA), as required by statute. 42 U.S.C.
§ 7545(o)(7)(D)(i). That is so, they say, because 96% of
EPA’s projected volume was biogas, a type of cellulosic
biofuel that EIA did not include in its estimate. See
Coffeyville Br. 43-44. The problem for petitioners,
however, is that this closely parallels an argument we
rejected in ACE: “[W]e do not agree that EPA failed to
generate projections ‘based on’ the [EIA’s] estimates,”
even though those “estimates did not contain figures
for [biogas] production—production that accounts for
the vast majority of cellulosic biofuel” (“around 90
percent”). ACE, 864 F.3d at 724, 729. Here, as there,
EPA showed sufficient “respect” for EIA’s estimates.
Id. at 729. When limited to fuels actually analyzed by
EIA, EPA’s estimates were “very similar” to EIA’s, id.;
see 2017 Rule, 81 Fed. Reg. at 89,758/1, a fact that the
Coffeyville Petitioners do not contest.
Congress demanded no more. Nothing in the statute
required EPA to, as the Coffeyville Petitioners insist,
“work[] with the EIA to develop information” about
biogas. Coffeyville Br. 44. “[T]he Administrator of the
Energy Information Administration shall provide . . .
an estimate,” 42 U.S.C. § 7545(o)(3)(A), and EPA shall
“respect” it, API, 706 F.3d at 478. That’s it. In showing
such respect, EPA, of course, must “understand how
EIA derived” its estimate. Coffeyville Reply Br. 24.
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But, contrary to the Coffeyville Petitioners’ contention, EPA did just that. The agency identified the types
of cellulosic biofuels that EIA considered and then,
to test the integrity of its projection, conducted an
apples-to-apples comparison, “limiting the scope of
[its] projection to the companies assessed by EIA.” See
2017 Rule, 81 Fed. Reg. at 89,757-58. Nothing more
was required.
Third, the Coffeyville Petitioners object that EPA
relied on “information from the [biogas] industry”—an
industry “with a direct financial interest in the outcome of the rule.” Coffeyville Br. 45. The Petitioners
characterize this as “reliance on undisclosed information.” Id. But EPA did disclose the information
from the biogas industry—and that the information
came from that industry; it just did so in the aggregate. See October 2016 Assessment of Cellulosic
Biofuel Production from Biogas (2017), EPA-HQ-OAR2016-0004-3711, at 2-6 (Dec. 12, 2016), Coffeyville J.A.
536-40. All the agency withheld was company-specific
information, claiming that it had to withhold such
data as confidential business information, see id. at 7,
Coffeyville J.A. 541; see also 40 C.F.R. § 2.211(b), a
claim that petitioners never even attempt to rebut, see
Masias v. EPA, 906 F.3d 1069, 1077 (D.C. Cir. 2018)
(“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do
counsel’s work . . . .” (quoting Schneider v. Kissinger,
412 F.3d 190, 200 n.1 (D.C. Cir. 2005))).
As for the implication of bias, we have previously
upheld EPA’s reliance on “biofuel producers’ own
forecasts.” ACE, 864 F.3d at 728; see also API, 706
F.3d at 478 (recognizing that producers are an “almost
inevitable source of information”). Here, as in ACE,
EPA did not “blindly adopt[] the facilities’ own
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forecasts”; it “performed its own investigation.” 864
F.3d at 728; see October 2016 Assessment of Cellulosic
Biofuel Production from Biogas, supra, at 4, Coffeyville
J.A. 538 (“To verify the reasonableness of these projections, EPA compared the projected volume from each
registered facility to the registered capacity of that
facility.”). Petitioners point to no unreasonable step by
EPA in its efforts to address “the uncertainty and
unreliability identified by the [Coffeyville] Petitioners.”
ACE, 864 F.3d at 728.
Fourth, the Coffeyville Petitioners protest EPA’s
reliance on “facilities’ actual production in prior years”
as a floor for projecting future cellulosic biofuel production. Coffeyville Br. 46. This was error, they say,
because some companies might cease production. Perhaps
so. But, as we said in ACE, although unforeseen issues
“could prevent a producer from meeting” its prior
year’s production, it was “reasonable” for EPA to
expect, as a general matter, “that a company’s output
would grow year-over-year as the company gained
experience.” 864 F.3d at 728. This seems especially
true in an industry with the government’s wind
surging at its back. And even were EPA’s assumption
not true for each company, any one facility’s shortfall,
EPA explained, could be “off-set” by new facilities
coming online or existing facilities exceeding the
high end of their projected production range. See
Renewable Fuel Standard Program—Standards for
2017 and Biomass-Based Diesel Volume for 2018:
Response to Comments, EPA-HQ-OAR-2016-0004-3753,
at 444 (Dec. 12, 2016), Coffeyville J.A. 707. This explanation fulfills EPA’s “duty to articulate a ‘reasonable
and reasonably explained’ approach to setting the low
end of the production ranges.” ACE, 864 F.3d at 729
(quoting Comtys. for a Better Env’t v. EPA, 748 F.3d
333, 335 (D.C. Cir. 2014)).
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Fifth, the Coffeyville Petitioners complain that EPA
should have based its cellulosic biofuel projections on
“actual” prior production. Coffeyville Br. 47. But this
backward looking approach would have, in EPA’s
view, “ignore[d] the potential for facilities . . . to
increase their fuel production rates” and would have
been “inappropriately conservative” in light of the
“year-over-year increases” that EPA had observed “in
recent years.” 2017 Rule, 81 Fed. Reg. at 89,761/1. We
cannot say that in rejecting such an approach EPA
violated “its duty to take a ‘neutral aim at accuracy.’”
ACE, 864 F.3d at 727 (quoting API, 706 F.3d at 476).
For these reasons, we reject the Coffeyville Petitioners’
challenges to EPA’s cellulosic biofuel projection for
2017. See ACE, 864 F.3d at 729.
C. Cellulosic Waiver
The Coffeyville Petitioners also challenge EPA’s
decision to use less than all of its discretionary cellulosic waiver authority to lower the 2017 requirements
for advanced biofuel and total renewable fuel. Having
reduced the 2017 cellulosic biofuel requirement by
5.189 billion gallons, EPA had authority to reduce the
advanced biofuel and total renewable fuel requirements “by the same or a lesser volume.” 42 U.S.C.
§ 7545(o)(7)(D)(i). To decide by how much to reduce
these statutory requirements, EPA first determines
what reduction in the advanced biofuel requirement
will yield a “reasonably attainable” volume, and it
then mechanically applies an equivalent reduction to
the total renewable fuel volume. 2017 Rule, 81 Fed.
Reg. at 89,752-53. Petitioners do not directly challenge
this methodology. Instead, they argue that EPA
applied it arbitrarily in deciding to waive only 4.719
billion gallons of the advanced biofuel volume for 2017,
rather than the maximum available waiver of 5.189
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billion gallons. We again reject some of their arguments as foreclosed by precedent and others on their
own terms.
First, the Coffeyville Petitioners argue that EPA
sought to justify its 2017 advanced biofuel volume in
part by making an impermissible comparison to the
statutory volume set by Congress for 2022. In response
to a comment expressing concerns about utilization of
non-cellulosic advanced biofuels (which could be
food-based) and possible adverse effects on food availability, EPA noted that its “reasonably attainable”
non-cellulosic advanced biofuel volume for 2017 (approximately 4 billion gallons) was “somewhat higher than
the level envisioned in the statute for 2017” (3.5
billion), “but well below the level of such fuels
Congress expected would be used by 2022” (5 billion).
Response to Comments at 214, Coffeyville J.A. 689.
According to petitioners, “by comparing 2017 volumes
with 2022 statutory targets, EPA departed from
Congress’s intent.” Coffeyville Br. 50.
However, nothing in the statute forbids EPA from
taking account of future statutory volumes in this way.
Although Congress specified presumptively applicable
volumes for certain years, it also provided waiver
authority to depart from those volumes. Indeed, the
discretionary waiver provision necessarily empowers
EPA to depart upward from the statutory level of noncellulosic advanced biofuel for a given year: reducing
the advanced biofuel volume by less than the reduction
in cellulosic biofuel, as section 7545(o)(7)(D)(i) permits,
is mathematically equivalent to increasing the volume
of non-cellulosic advanced biofuels, to “partially
backfill for missing cellulosic biofuel.” 2017 Rule, 81
Fed. Reg. at 89,763/1. As we have noted, the cellulosic
waiver provision “grants EPA ‘broad discretion’ to
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consider a variety of factors” in exercising this authority to depart from the presumptive statutory volumes.
ACE, 864 F.3d at 733 (quoting Monroe Energy, 750
F.3d at 915). In this case, while deflecting a comment
about food availability, EPA observed that its noncellulosic advanced biofuel volume for 2017—while
higher than the statutory volume envisioned for that
year—was lower than the presumptive statutory volume
for the near future. And it then reasonably concluded
that this “somewhat higher interim volume reflect[ed]
[its] assessment that it is appropriate to allow noncellulosic advanced biofuels to partially backfill for
missing cellulosic volumes in light of the associated
[greenhouse gas] and energy security benefits.” Response
to Comments at 214, Coffeyville J.A. 689.
Second, the Coffeyville Petitioners argue that EPA
failed to explain its estimate of reasonably attainable
2017 imports of sugarcane ethanol, a type of noncellulosic advanced biofuel. Sugarcane ethanol imports
have varied greatly from year to year, reaching a high
of 681 million gallons in 2006 but falling to 64 million
gallons in 2014 and 89 million gallons in 2015. See
2017 Rule, 81 Fed. Reg. at 89,764. At the time of the
2017 Rule, EPA expected only 76 million gallons to be
imported in 2016, but it nonetheless adhered to its
proposed estimate of 200 million gallons for 2017—
an estimate originally based on EPA’s judgment that
circumstances in 2017 were “not . . . significantly
different” from circumstances in 2016, for which EPA
had also projected 200 million gallons. Id. at 89,763/3.
EPA acknowledged the “recent low import levels,” but
also cited “the difficulty in precisely identifying the
reasons” for the historical “high variability,” given
“uncertainty” as to market factors including “ongoing
growth in gasoline demand in Brazil, and competing
world demand for sugar.” Id. at 89,764-65. The agency
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accordingly reaffirmed that 200 million gallons
“reflects a reasonable intermediate point between the
lower levels imported recently and the considerably
higher levels that have been achieved in earlier years.”
Id. at 89,765/2.
There is some force to petitioners’ objection to EPA’s
adherence to an estimate well over double the actual
imports in the three preceding years. However, our
review is “particularly deferential in matters implicating predictive judgments.” Music Choice v. Copyright
Royalty Bd., 774 F.3d 1000, 1015 (D.C. Cir. 2014)
(quoting Rural Cellular Ass’n v. FCC, 588 F.3d 1095,
1105 (D.C. Cir. 2009)). We accordingly upheld EPA’s
identical 2016 sugarcane ethanol estimate as “reasonable and reasonably explained” in ACE, 864 F.3d at
736 (quotation marks omitted). In that case, we held
that EPA reasonably “concluded that ‘a somewhat
lower level of imports will occur than the historic
average’ of 300 million,” based on a similar analysis of
market factors. Id. (quoting 2014-16 Rule, 80 Fed. Reg.
at 77,478/2). Here, we cannot say that one more year
of low imports made it arbitrary for EPA to adhere to
that same projection for 2017.
Third, the Coffeyville Petitioners object to EPA’s
analysis of supply and demand for regular gasoline
(E0) and gasoline with added ethanol (E15 and E85).
However, this analysis played no role in EPA’s exercise
of its discretionary cellulosic waiver authority under
section 7545(o)(7)(D)(i). As noted above, EPA’s exercise
of that authority rested entirely on its determination
of reasonably attainable advanced biofuel volumes.
See 2017 Rule, 81 Fed. Reg. at 89,773-74. The disputed
analysis of E0, E15, and E85 supported EPA’s separate
decision not to invoke its “general waiver” authority,
under section 7545(o)(7)(A)(ii), based on “inadequate
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domestic supply.” See generally ACE, 864 F.3d at 70513. But in their opening brief, petitioners failed to
challenge EPA’s decision not to invoke that separate
waiver provision for 2017. Although their reply brief
gestures at this point, “an argument first made in a
reply brief is forfeited.” Bartko v. SEC, 845 F.3d 1217,
1225 n.7 (D.C. Cir. 2017).
Finally, the Coffeyville Petitioners take issue with
EPA’s response to various comments. We have considered these arguments and find them to be without merit.
For these reasons, we reject the Coffeyville Petitioners’
challenges to EPA’s exercise of its discretionary
cellulosic waiver authority to reduce advanced biofuel
and total renewable fuel volumes for 2017.
VI. 2018 Volume for Biomass-Based Diesel
Since 2012, EPA, acting in coordination with the
Secretaries of Energy and Agriculture, has calculated
the annual applicable volume (also known as the
“volume requirement”) for biomass-based diesel based
on a holistic, backward- and forward-looking consideration of relevant factors. In particular, it has set
the volume requirement “based on a review of the
implementation of the program during calendar
years specified in the tables, and an analysis of” six
statutorily enumerated factors: (1) “the impact of the
production and use of renewable fuels on the environment”; (2) “the impact of renewable fuels on the energy
security of the United States”; (3) “the expected annual
rate of future commercial production of renewable
fuels, including advanced biofuels in each category
(cellulosic biofuel and biomass-based diesel)”; (4) “the
impact of renewable fuels on the infrastructure of the
United States”; (5) “the impact of the use of renewable
fuels on the cost to consumers of transportation fuel
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and on the cost to transport goods”; and (6) “the impact
of the use of renewable fuels on other factors, including
job creation, the price and supply of agricultural
commodities, rural economic development, and food
prices.” 42 U.S.C. § 7545 (o)(2)(B)(ii)(I)—(VI).
EPA set the 2018 applicable volume for biomassbased diesel at 2.1 billion gallons, up from 2.0 billion
gallons in 2017, and 1.1 billion gallons above a
statutory minimum that Congress set to plateau at 1
billion gallons as of 2012. 2017 Rule, 81 Fed. Reg. at
89,798/1; see 42 U.S.C. § 7545(o)(2)(B)(i)(IV), (v). NBB
had asked EPA to set the biomass-based diesel volume
at 2.5 billion gallons, and now challenges the volume
EPA set as arbitrary and capricious and contrary to
the Clean Air Act.
A. NBB’s Standing
Before considering the merits of NBB’s claims, we
must satisfy ourselves that NBB has standing to
assert them. Respondent-Intervenors, the American
Fuel & Petrochemical Manufacturers and the American
Petroleum Institute, contend that NBB lacks standing
because, they say, it has not shown that the 2017 Rule
inflicted a cognizable injury on any of its members.
NBB has associational standing here for the
same reasons we held it did in National Biodiesel
Board v. EPA, 843 F.3d 1010, 1015 (D.C. Cir. 2016)
(NBB v. EPA), where EPA’s actions “incentivize[d] . . .
compet[ition] with [NBB’s members’] domestic production.” Here, too, NBB’s members “compete with” the
other industry players EPA’s rule is designed to affect.
Id. at 1016. Recall that biomass-based diesel is a
nested subset of advanced and total renewable fuels,
such that NBB’s members get (1) a market for compelled buyers of the specified volume of biomass-based
66a
diesel, for which they are the exclusive suppliers, plus
(2) a market for compelled buyers of advanced and
other renewable fuels alongside a broad array of
competing suppliers. See supra at 6-8, 11. The 2017
Rule preamble explains that biomass-based diesel
“compet[es] for research and development dollars
with other types of advanced biofuels,” and that, “[b]y
establishing [the biomass-based diesel] volume requirement[] at [a] level[] lower than . . . the expected
production of [biomass-based diesel],” EPA was “creating
the potential for some competition between [biomassbased diesel] and other advanced biofuels to satisfy the
advanced biofuel” applicable volume and providing
“incentives for the continued development of” those
competitors’ fuels. 81 Fed. Reg. at 89,797; see also EPA
Coffeyville Br. 24 (“Above 2.1 billion gallons, biomassbased diesel will have to compete with other types
of advanced biofuel.”). Such competition will likely
“temper to some extent [biomass-based diesel] prices.”
Final Statutory Factors Assessment for the 2018
Biomass Based Diesel (BBD) Applicable Volume,
EPA-HQ-OAR-2016-0004-3708, at 10 (Dec. 12, 2016)
(Supplemental Assessment), Coffeyville J.A. 533. That
is a cognizable injury to NBB’s members. See NBB v.
EPA, 843 F.3d at 1015-16; see also Delta Constr. Co. v.
EPA, 783 F.3d 1291, 1299 (D.C. Cir. 2015) (per
curiam).
Though NBB failed to identify any of its members—
ordinarily a prerequisite for organizations alleging
associational standing, see Summers v. Earth Island
Inst., 555 U.S. 488, 497-98 (2009)—that omission is
not fatal here because NBB’s members comprise “the
entire biomass-based diesel category of the Renewable
Fuel Standard[s]” and represent no other interests.
Coffeyville J.A. 134. Consistent with “the real purpose
of the [standing] inquiry—that is, for the court to be
67a
satisfied that the requisite injury really has occurred
or will occur in the future to members of the organization[],” Pub. Citizen v. FTC, 869 F.2d 1541, 1552 (D.C.
Cir. 1989), there is no need to identify injured members when “all the members of the organization are
affected by the challenged activity,” Summers, 555
U.S. at 499 (citing NAACP v. Ala. ex rel. Patterson, 357
U.S. 449, 459 (1958)). Because EPA’s rule subjects the
biomass-based diesel industry to increased competition, with anticipated pricing effects, NBB “meet[s]
the constitutional prerequisites of injury, causation,
and redressability.” NBB v. EPA, 843 F.3d at 1015.
B. Merits of NBB’s Challenges
NBB advances two challenges to the applicable
volume EPA set for biomass-based diesel: First, that
EPA erred in considering the interaction of biomassbased diesel with the yet-to-be established 2018
advanced biofuel applicable volume, and second, that
EPA’s consideration of the six statutory factors was
arbitrary and capricious and contrary to law. We reject
both claims.
First, EPA reasonably chose a 2018 biomass-based
diesel applicable volume that would “maintain[] support
for growth in [biomass-based diesel] volumes” while
also encouraging the “development of other advanced
biofuels.” 2017 Rule, 81 Fed. Reg. at 89,798/1. Congress
directed EPA to consider the lessons learned from its
retrospective “review” of the program, apply them in
its prospective “analysis of” the six statutory factors,
and set a biomass-based diesel volume that will
apply fourteen months in the future. See 42 U.S.C.
§ 7545(o)(2)(B)(ii).
EPA’s approach is consistent with the structure and
purposes of the statute. Congress set a minimum
68a
applicable volume for biomass-based diesel of one
billion gallons for each year from 2012 forward, id.
§ 7545(o)(2)(B)(i)(IV), (v), while specifying statutory
minimum volumes for the advanced biofuel category
containing biomass-based diesel that grow year by year
to 21 billion gallons by 2022, id. § 7545(o)(2)(B)(i)(II),
(iii). EPA reasonably concluded that, by nesting
biomass-based diesel together with cellulosic (and
other unspecified) biofuels within the advanced biofuel
category, and specifically charting a higher, steeper,
and longer initial growth curve for advanced biofuel,
Congress anticipated that production of other types
of advanced biofuels could step up to help meet
the advanced biofuel volume requirement. See 2017
Rule, 81 Fed. Reg. at 89,797/1. EPA also reasonably
concluded that increasing fuel diversity serves one of
Congress’s primary goals in establishing the Renewable
Fuel Standards program: improving the nation’s
“energy independence and security.” See Pub. L. No.
110-140, preamble; see also 2017 Rule, 81 Fed. Reg.
at 89,798/3. EPA also reasonably anticipated that
enhanced competition in the advanced biofuels market
would help “temper to some extent [biomass-based
diesel] prices,” Supplemental Assessment 10, Coffeyville
J.A. 533, thereby ameliorating Congress’s concern
that, with a too-high target volume, the “price of biomassbased diesel fuel” would “increase significantly,” 42
U.S.C. § 7545(o)(7)(E)(ii). And fuel diversity may
produce environmental benefits insofar as certain
advanced biofuels, such as ethanol from food waste,
will “likely have significantly lower impacts on wetlands, ecosystems, and wildlife habitats” than would
greater reliance on biomass-based diesel. Supplemental
Assessment 6, Coffeyville J.A. 529.
NBB’s arguments to the contrary turn on reading
the statutory directive that EPA “review . . . the
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implementation of the program during calendar years
specified in the tables,” id. § 7545(o)(2)(B)(ii), to
confine EPA’s consideration to biomass-based diesel’s
statutory volumes and actual performance, and to
prevent EPA from considering other fuel categories or
future years. In particular, NBB takes issue with
EPA’s consideration of the not-yet-finalized 2018
advanced biofuel applicable volume, which NBB
contends led EPA to set the biomass-based diesel
volume too low.
NBB’s objections are not supported by the text or
purpose of the statute. Assuming NBB is right that
EPA’s “review of the implementation of the program”
consists of a retrospective assessment, the agency
must also conduct “an analysis of” six statutory factors.
Id. § 7545(o)(2)(B)(ii). And those factors plainly require
a prospective assessment—an assessment that would
likely miss “important aspects of the problem,” State
Farm, 463 U.S. at 43, if it ignored the interaction, now
and in the future, of the requirements for all the
categories of renewable fuels. See, e.g., 42 U.S.C.
§ 7545(o)(2)(B)(ii)(I) (requiring an “analysis of” the
“impact of the production and use of renewable fuels
on,” among other things, “the environment”). Though
EPA set the biomass-based diesel requirement lower
than NBB wished, Congress did not intend to incentivize growth of biomass-based diesel “at all costs.” ACE,
864 F.3d at 714 (quoting Am. Express Co. v. Italian
Colors Rest., 570 U.S. 228, 234 (2013)).
NBB objects that setting the 2018 biomass-based
diesel applicable volume below expected production
might lead to a depressed advanced biofuel volume for
2018. But the agency specifically anticipated “that the
2018 advanced biofuel requirement will be larger than
the 2017 advanced biofuel volume requirement.” 2017
70a
Rule, 81 Fed. Reg. at 89,798/1. EPA has never set
the biomass-based diesel applicable volume at the
“maximum potential production” level, id. at 89,799/3,
yet the “growing supply of” biomass-based diesel has
consistently “allowed EPA to establish higher advanced
biofuel” applicable volumes, id. at 89,797/3. EPA opted
for “allowing room within the advanced biofuel volume
requirement for the participation of non-[biomassbased diesel] advanced fuels” as a reasonable way
“to encourage the development and production of a
variety of advanced biofuels over the long term without reducing the incentive for [biomass-based diesel]
beyond the [biomass-based diesel applicable volume]
in 2018.” Id. at 89,797-98.
Second, in setting the 2018 biomass-based diesel
applicable volume, EPA reasonably compared the
advantages and disadvantages of biomass-based
diesel to those of other fuels. NBB contends that the
statute confines EPA to assessing advantages of
biomass-based diesel over petroleum, not considering
other renewable fuels, and that the agency failed to
“meaningfully” consider the six factors. NBB Br. 9-10.
Both arguments miss the mark.
NBB suggests that, because the statute “was
intended to ‘increase the production of clean renewable fuels’ as a substitute for petroleum fuel,” id. at 21
(quoting Pub. L. No. 110-140, preamble), the only
relevant comparison is to petroleum, not to other
categories of renewable fuel. But NBB identifies
nothing in section 7545(o)(2)(B)(ii) or any other section
that requires EPA to assess the performance of
a particular renewable solely by reference to petroleum fuel. Its analysis would require us to read
the term “renewable fuels” used throughout section
7545(o)(2)(B)(ii) to refer to the single renewable fuel
71a
being analyzed, even though the statutory definition
of “renewable fuel” includes all types of renewables.
See 42 U.S.C. § 7545(o)(1)(J). And if EPA could compare the benefits of each specific fuel only to petroleum, it might be unable to set rational applicable
volumes for each specified category of renewable fuel
after 2022, when the statute no longer sets any specific
volumes. See id. § 7545(o)(2)(B)(iii)—(v). EPA could
easily conclude, for example, that each renewable fuel
had a lower “impact . . . on the environment” than
petroleum fuel, see id. § 7545(o)(2)(B)(ii)(I), but, no
matter their differing merits in serving the statute’s
goals, the agency would be barred from making
relative judgments among renewable fuel categories.
NBB also argues that EPA failed to give meaningful
consideration to the six statutory factors, and instead
“pre-determined the outcome,” NBB Br. 20, but the
record shows otherwise. EPA considered in detail how
setting the biomass-based diesel applicable volume at
a level higher or lower than 2.1 billion gallons would
affect the six statutory factors. See 2017 Rule, 81 Fed.
Reg. at 89,798-99. EPA further elaborated its analysis
of the factors in an 11-page supplemental memorandum
evaluating effects of its proposed biomass-based
diesel volume on renewable fuel production rates, the
environment, and the economy. See Supplemental
Assessment 1-11, Coffeyville J.A. 524-34. EPA concluded that, over the long term, “[a] variety of different
types of advanced biofuels, rather than a single type
such as [biomass-based diesel], would positively impact
energy security . . . and increase the likelihood of the
development of lower cost advanced biofuels that meet
the same [greenhouse gas] reduction threshold as
[biomass-based diesel].” Supplemental Assessment 3,
Coffeyville J.A. 526. EPA thus concluded that the
statutory factors supported its biomass-based diesel
72a
applicable volume. See 2017 Rule, 81 Fed. Reg. at
89,798/3.
At bottom, NBB’s objections rest on a policy
disagreement: NBB urges that, instead of setting a
level that would support continued investment in the
biomass-based diesel industry while also encouraging
producers of other types of advanced biofuel to compete to satisfy the 2018 advanced biofuel applicable
volume at lower cost, EPA should have reserved to
biomass-based diesel alone a volume nearer to that
industry’s maximum production potential. But NBB’s
proposed “simple solution”—that EPA should have
“set[] a meaningful [biomass-based diesel] volume”
while planning to “increas[e] the 2018 advancedbiofuel volume to provide room for the production of
other advanced biofuels when it set that volume a year
later,” NBB Br. 23—describes what EPA actually did.
A mere disagreement with the particular calibration
of a line drawn in the exercise of an agency’s
reasonable judgment is no basis to invalidate a rule.
Therefore, we deny NBB’s petition.
VII. Conclusion
For these reasons, the petitions for review are
denied.
So ordered.
73a
WILLIAMS, Senior Circuit Judge, concurring in part
and concurring in the judgment:
The Clean Air Act’s Renewable Fuel Program operates
on an annual cycle. It provides annual credits, authorizes annual waivers, and calls for annual reviews, see,
e.g., 42 U.S.C. § 7545(o)(5), (7), (10)—all to implement
Congress’s annual goals, see id. § 7545(o)(2)(B).
Each year, as part of this annual affair, the Environmental Protection Agency embarks on an elaborate
rulemaking. Id. § 7545(o)(3)(B). In doing so, it receives
an annual estimate of the total volume of fuel to be
sold to inform it in setting the annual “renewable fuel
obligation,” id. § 7545(o)(B)(i), which “shall . . . be
applicable to refineries, blenders, and importers, as
appropriate,” id. § 7545(o)(3)(B)(ii)(I). So EPA is to
specify appropriateness among those three categories.
But “appropriate” as of when?
Coffeyville Petitioners say appropriate as of the
annual rulemaking.
But EPA says appropriate as of the last time EPA
happened to consider the issue, no matter how many
years earlier that was. The initial determination
sticks for “all years,” EPA says, “unless and until” EPA
chooses, in its “discretion,” to “undertake [an] annual
reevaluation[].” Denial of Petitions for Rulemaking to
Change the RFS Point of Obligation, EPA-HQ-OAR2016-0544-0525, at 7 (Mar. 13, 2018) (“EPA Denial”),
J.A. 779; see also EPA Br. 66 (claiming “discretion” to
decide “whether, how, and when” it will “reconsider its
initial designation”). Even when affected parties point
to a series of market “disparities” that they say have
developed and render the earlier determination “not
appropriate,” and point to § 7545(o)(3)(B)(ii)(I) as
entitling them to a fresh determination, see, e.g.,
74a
Valero Energy Corporation Comments, EPA-HQOAR-2016-0004-1746, at 1, 14 (July 11, 2016), J.A.
138, 151, EPA claims that that section does nothing
of the sort, see EPA Denial at 8, J.A. 780 (asserting
full “discretion” to decide “when” and “under what
circumstances” it will consider the issue). In Part V.A
of the court’s opinion, my colleagues accept EPA’s
theory. I, however, disagree. So while I otherwise join
the court’s opinion in full, I cannot joint Part V.A—
though I do, in the end, concur in the judgment.
* * *
At the risk of oversimplifying, we can boil this
annual process down to three steps.
First, the annual goal. Congress sets annual
(steadily increasing) goals for the volume of renewable
transportation fuel to be sold or introduced into
commerce in the United States, with special targets
for some subsets of renewable fuel. 42 U.S.C.
§ 7545(o)(2)(B)(i).
Next, the annual estimate. The Energy Information
Administration projects the total volume of transportation fuel that will be sold into commerce in a given
year (as well as volumes of biomass-based diesel and
cellulosic biofuel). 42 U.S.C. § 7545(o)(3)(A); see, e.g.,
Letter from Adam Sieminski, Administrator, U.S.
Energy Information Administration, to Gina McCarthy,
Administrator, U.S. Environmental Protection Agency,
EPA-HQ-OAR-2016-0004-3646 (Oct. 19, 2016), J.A.
494.
Finally, the annual obligation. This is set by EPA
during the agency’s annual rulemaking. And it is
expressed in terms of a single percentage of transportation fuel sold into commerce (the “renewable
fuel obligation”) by any obligated party (regardless
75a
of category). 42 U.S.C. § 7545(o)(3)(B)(ii); see, e.g.,
Renewable Fuel Standard Program: Standards for
2017 and Biomass-Based Diesel Volume for 2018, 81
Fed. Reg. 89,746, 89,751/3 (Dec. 12, 2016) (“2017
Rule”). The basic idea is this: If EPA knows (i) the
annual goal for the volume of renewable fuel introduced into commerce (see step one above), and (ii) the
annual estimate for the total volume of fuel to be
introduced into commerce (see step two above), then
EPA—after filling in any gaps in the goals left by
Congress, see 42 U.S.C. § 7545(o)(2)(B)(ii), and making
any necessary adjustments to the estimates provided
by the Energy Information Administration, see id.
§ 7545(o)(3)(A)—can set the minimum percentage of
renewable fuel that must be introduced into commerce
by “obligated parties.” If everything works out well,
Congress’s annual goal should, more or less, be met.
But who are these “obligated parties”? Under
the Act, EPA must tell us. The first among the
three “Required elements” of the annual determination is that it “be applicable to refineries,
blenders, and importers, as appropriate.” 42 U.S.C.
§ 7545(o)(3)(B)(ii)(I) (emphasis added).
Even though EPA “determine[s] and publish[es]”
the annual obligation anew “[e]ach [] calendar year[],”
42 U.S.C. § 7545(o)(3)(B)(i), since 2010 it hasn’t
considered what parties are “appropriate” to obligate.
Regulation of Rules and Fuel Additives, 75 Fed. Reg.
14,670, 14,722 (Mar. 26, 2010); see also Regulation
of Fuels and Fuel Additives, 72 Fed. Reg. 23,900,
23,923/2 (May 1, 2007). Rather, year in and year out,
the agency has simply “indicated,” “in passing,” that
the renewable fuel obligation “would apply to ‘. . .
producers and importers,’” “consistent with [its]
preexisting” determination. EPA Br. 69-70 (quoting
76a
2017 Rule, 81 Fed. Reg. at 89,746/2). That’s it. In my
view, however, the language of the statute requires
more. EPA’s contrary reading seems to me to go
unreasonably “beyond the meaning that the statute
can bear.” U.S. Postal Serv. v. Postal Regulatory
Comm’n, 886 F.3d 1253, 1255 (D.C. Cir. 2018) (quoting
MCI Telecomm. Corp. v. AT&T Co., 512 U.S. 218, 229
(1994)).
* * *
The key provision says, “[n]ot later than November
30 of each [] calendar year[],” EPA “shall determine
and publish in the Federal Register . . . the renewable
fuel obligation.” 42 U.S.C. § 7545(o)(3)(B)(i). The first
of the “Required elements” of that annual obligation is
that it shall “be applicable to refineries, blenders, and
importers, as appropriate.” Id. § 7545(o)(3)(B)(ii)(I).
This much tells us a few things. First, Congress
required EPA to set the renewable fuel obligation
annually. That feature of the requirement pretty
clearly indicates a congressional expectation of possible
year-to-year variation in all the mandatory elements—
not merely in the percentage chosen (which is addressed
in subclauses (II) and (III)). Second, one explicitly
required element of this annual determination is a
selection among “refineries, blenders and importers,”
a selection that must be “appropriate.” Taken together,
the Act seems inevitably to require EPA to apply (at
least) some thought to the issue of what market
sectors should be obligated—thought that the agency
must apply each time it sets the annual obligation.
After all, the term “appropriate” “naturally and
traditionally includes consideration of all the relevant
factors,” not just a recitation that some time ago the
agency considered the factors that it then thought
relevant. Michigan v. EPA, 135 S. Ct. 2699, 2707
77a
(2015) (emphasis added) (quoting White Stallion
Energy Center, LLC v. EPA, 748 F.3d 1222, 1266 (D.C.
Cir. 2014) (Kavanaugh, J., concurring in part and
dissenting in part)). The agency, in other words, must
“exercise its discretion to choose among the options”
that Congress has given it, Maj. op. 45 (quoting Kisor
v. Wilkie, 139 S. Ct. 2400, 2449 (2019) (Kavanaugh, J.,
concurring in the judgment)), not “explain[]” why, in
the agency’s opinion, it’s “appropriate” not to choose
among the options that Congress has given it, id.; see
Response to Comments, EPA-HQ-OAR-2016-00043753, at 542 (Dec. 12, 2016), J.A. 761 (declaring the
point-of-obligation “issue” “beyond the scope of this
rulemaking”).
Suppose a law school charter—adopted at the
school’s founding in 1920—calls on the dean to
annually set a “tort credits obligation,” consisting of a
minimum number of credit hours students must
devote to certain tort subjects; the dean is to make the
obligation “applicable to negligence, defamation,
battery, and alienation of affections, as appropriate.”
The first dean, in 1921, sets the obligation at three
credit hours per subject—and applies it to all the
subjects. For the 2020-21 academic year, the tenth
dean likewise duly requires students to devote at least
three credits hours to those same subjects including
alienation of affections. Students understandably
protest, since that tort is now a bygone relic. See Fitch
v. Valentine, 2005-CA-01800-SCT (¶¶ 79-81) (Miss.
2007) (Dickinson, J., concurring), 959 So. 2d 1012,
1036 (noting 31 states have “completely abolished” it).
But the dean adamantly refuses even to consider their
entreaties, “explain[ing]” (Maj. op. 45) they’re “beyond
the scope” (J.A. 761) of topics relevant to the annual
credit determination, which, after all, is perfectly
“consistent with [a] preexisting” 1921 determination
78a
that that application was “appropriate” (EPA Br. 70).
EPA’s reasoning (on the procedural point—whether or
not the phrase “applicable . . . as appropriate” requires
it to consider the issue) is, in essence, as startling as
the dean’s. Never mind whether, as a substantive
matter, studying the tort—or exempting blenders—is
actually “appropriate.” Cf. Maj. op. 52. EPA tells us it
need not even address the point—ever again.
EPA’s response does more to hurt than to help its
cause. The agency points us to similarities between the
provision we’ve been discussing, § 7545(o)(3)(B)(ii)(I),
and § 7545(o)(2)(A)(iii)(I), which I’ll call the “compliance provision.” The two echo each other, see Oral
Arg. Tr. 70:19–25, both using the “applicable . . . as
appropriate” formulation.
Annual determination, 42 U.S.C. § 7545(o)(3)(B)(i),
(ii)(I):
[E]ach . . . calendar year[] . . . , the
Administrator
of
the
Environmental
Protection Agency shall determine and
publish in the Federal Register . . . the
renewable fuel obligation . . . . The renewable
fuel obligation . . . shall . . . be applicable to
refineries, blenders, and importers, as
appropriate.
Compliance provision, 42 U.S.C. § 7545(o)(2)(A)(i),
(iii)(I):
Not later than [August 8, 2006], the Administrator shall promulgate regulations . . . .
[T]he regulations . . . shall contain compliance
provisions applicable to refineries, blenders, distributors, and importers, as appropriate . . . .
79a
As EPA reads the two, the agency may define
the point of obligation once—while announcing the
compliance provisions at the outset of the program.
See EPA Br. 66. Congress’s command to make the
annual renewable fuel obligation “applicable . . as
appropriate” is simply, in the agency’s view, a crossreference back to the “applicable . . . as appropriate”
determination made by EPA at the outset in its
adoption of compliance regulations. See, e.g., id. at 6970; Oral Arg. Tr. 70:19-71:15, 72:13-24, 73:16-74:13.
The agency’s reading, however, seems utterly
implausible. When Congress uses “identical words” in
“different parts of the same statute,” we normally infer
that those words carry “the same meaning.” Henson v.
Santander Consumer USA Inc., 137 S. Ct. 1718, 1723
(2017) (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 34
(2005)). So if “applicable . . . as appropriate,” in the
context of setting the compliance regulations, means
(as everyone agrees it means) that EPA is to contemporaneously assess the appropriateness of its decision,
then the same phrase, in the context of setting the
annual renewable fuel obligation, must mean the
same thing: EPA is to make a contemporaneous
assessment of appropriateness—rather than, as the
agency implausibly claims, treat a decision made long
ago as dispositive for the present.
The majority responds—somewhat bafflingly—that
nothing in the phrase “applicable . . . as appropriate”
indicates “when or in what context EPA must make the
appropriateness determination.” Maj. op. 46 (emphasis
added). But that can’t be right. Imagine a daycare
advertises that it will dress kids for recess, “as appropriate.” Would any reasonable speaker of English
really harbor any doubt as to whether there existed
a “particular temporal” connection between the
80a
selection made and the selection’s appropriateness?
Id. at 45. Surely parents would be surprised to learn
that the school’s clothing selection for a snowy,
December day was not “appropriate” in light of the
then-pounding blizzard, but, rather, was “appropriate”
in light of the sunshine from six months earlier, when
the daycare first opened.
In fact, had Congress wanted EPA to readopt a prior
determination, without any contemporaneous analysis as to appropriateness, “it could easily have chosen
clearer language” to do just that. NLRB v. SW General,
Inc., 137 S. Ct. 929, 939 (2017). Related provisions of
the same statute provide examples of such straightforward wording. An obvious possibility would be to
replace “applicable to refineries, blenders, and importers,
as appropriate,” with “applicable to Obligated Parties
(as defined by the Administrator under 42 U.S.C.
§ 7545(o)(2)),” thus using the pattern adopted in
§ 7545(h)(1), (k)(3)(B)(i). Another obvious way of expressing what EPA says Congress meant would have
been to modify “refineries, blenders, and importers”
with the phrase, “in conformity with the compliance
provisions established by the Administrator,” thus
paralleling the approach of § 7545(b)(2). Both formulations, relying on a past participle, easily invite the
construction that EPA prefers—allowing the administrator to rely on a decision made at some unspecified
time in the past. “The fact that [Congress] did not
adopt [any of these] readily available and apparent
alternative[s] strongly supports rejecting [EPA’s] reading.” Knight v. Commissioner, 552 U.S. 181, 188 (2008).
Further, rather than using such easy alternatives,
Congress chose language that, as read by EPA, makes
a mess of virtually all of § 7545(o)(3)(B)(ii). Again,
subclause (I) requires the “renewable fuel obligation”
81a
to “be applicable to refineries, blenders, and importers,
as appropriate.” 42 U.S.C. § 7545(o)(3)(B)(ii)(I). If
Congress had envisioned EPA “identif[ying] the
‘appropriate’ obligated parties” in its exercise of the
compliance provision (§ 7545(o)(2)(A)(iii)(I)), rather
than of this clause, as EPA says it did, see EPA Br. 7,
then subclause (I) would be doing no work at all—
contrary to the “principle of statutory construction
that we must ‘give effect, if possible, to every clause
and word of a statute,”‘ Williams v. Taylor, 529 U.S.
362, 404 (2000) (quoting United States v. Menasche,
348 U.S. 528, 538-39 (1955)).
EPA and the majority respond that subclause (I) is
needed to “clarify[]” that distributors—who can be
subjected to the compliance provisions—“cannot be”
subjected to the renewable fuel obligation. Oral Arg.
Tr. 75:9-12 (emphasis added); see also Maj. op. 47.
Compare 42 U.S.C. § 7545(o)(2)(A)(iii)(I) (providing
that the compliance provisions shall be “applicable to
refineries, blenders, distributors, and importers, as
appropriate” (emphasis added)), with id. §
7545(o)(3)(B)(ii)(I) (providing that the renewable fuel
obligation shall be “applicable to refineries, blenders,
and importers, as appropriate”). But the need for
clarity could be attributed to “most superfluous
language.” SW General, 137 S. Ct. at 941. And if clarity
were actually Congress’s goal, if all Congress wanted
to do in subclause (I) was exclude “distributors” from
the universe of potential obligated parties, Maj. op. 47,
it chose an exceedingly odd way of getting there:
inserting into an annual exercise the task of indicating
what entities are “appropriate” targets for the
renewable fuel obligation. Wouldn’t it have been more
straightforward to just reference EPA’s prior
determination, and then directly state—for the
82a
purpose of clarity—that the renewable fuel obligation
may not apply to “distributors”?
In any case, it’s hard to see what distributor-based
obscurity EPA sees a need for subclause (I) to correct.
Because the renewable fuel obligation concerns only
fuel that is “sold or introduced into commerce in
the United States,” 42 U.S.C. § 7545(o)(2)(A)(i),
(o)(3)(B)(ii)(II) (emphasis added), the obligation applies,
for any gallon of fuel, only once—i.e., when the fuel
enters the American economy upstream, not when
distributors transport the same fuel downstream.
Once the sale or introduction “into” commerce is
complete—once a given unit of fuel is already flowing
through American commerce—that same unit of
fuel cannot be sold or introduced “into” American
commerce again; it’s already there. While one, for
example, might say that a fuel line, which carries fuel
from a car’s tank to its engine, carries fuel “in” the car,
no one would say that it carries fuel “into” the car. So
too, while one might say that a distributor, which
transports fuel from the economy’s refineries to its
retailers, see 40 C.F.R. § 80.2(l); EPA Denial at 9, J.A.
781, transports fuel “in” the economy, no one would
say that it transports (or sells or introduces) fuel “into”
the economy; again, the fuel is already in the relevant
process. Congress itself recognizes the distinction, referring to fuel that is “sold or introduced into commerce,”
42 U.S.C. § 7545(o)(2)(A)(i), (o)(3)(B)(ii)(II) (emphasis
added), and fuel that is “sold or distributed in . . .
commerce,” id. § 7545(u)(4) (emphasis added). Because
distributors do only the latter—they move fuel “in,” not
“into,” commerce—there is nothing for subclause (I) to
clarify. These downstream intermediaries can never
fall within the universe of potentially obligated parties.
83a
My colleagues don’t claim to disagree; at most, they
declare it “non-obvious” that “distributors cannot be
subjected to the point of obligation.” Maj. op. 47. But
what’s “non-obvious” about it, even if we put the plain
meaning of “into commerce in the United States”
aside? That phrase appears throughout the statute—
and can’t possibly include downstream, distributor
transactions. Take the statutory provision concerning
the Energy Information Administration, which says
that the agency must provide EPA with an estimate
of the “volume[] of transportation fuel . . . projected
to be sold or introduced into commerce in the United
States.” 42 U.S.C. § 7545(o)(3)(A). Does Congress really
expect that estimate—and the regulatory burdens “based
on” that estimate, id. § 7545(o)(3)(B)(i), (o)(7)(D)(i)—to
radically fluctuate based on the frequency of transactions among the distributors that happen to line the
distribution network? So if every distributor starts
selling to another distributor, or several of them, the
calculated volume of fuel “sold or introduced into commerce in the United States” would balloon overnight?
I doubt it.
EPA, it seems, shares my skepticism. The agency
itself describes the renewable fuel obligation, not in
terms of downstream intermediaries, like distributors,
but in terms of the initial, upstream players—those
“responsible for introducing [fuel] into the domestic
gasoline pool.” 72 Fed. Reg. at 23,904/1 (emphasis
added). Indeed, when defining the renewable fuel
obligation, EPA speaks not of sales that happen to
occur, distributor-to-distributor, along the supply
chain, but only of initial injections into U.S. commerce
as a consequence of the upstream “produc[tion]” or
“import[ation]” of transportation fuel. 40 C.F.R.
§ 80.1407(a), (b).
84a
What about blenders, asks the majority? Aren’t they
potentially obligated parties, even though they, like
distributors, handle fuels that have already been
“introduce[d]” into U.S. commerce by other upstream
entities, like refineries? Maj. op. 46-47. Yes, of
course, they are. But that’s because blenders—unlike
distributors—are the ones who initially sell or introduce various types of finished transportation fuel “into
commerce in the United States.” E15, for instance, a
blend of 85% gasoline, 15% ethanol, generally enters
“into” American commerce at the hands of a blender—
the entity that actually blends the various components. Just ask EPA, which references the “ethanol
blenders that introduce E15 into commerce.” 76 Fed.
Reg. 44,406, 44,410/3 (July 25, 2011). A distributor, in
contrast—and by definition, whether that’s a “postenactment regulat[ory]” definition, Maj. op. 47, or a
pre-enactment dictionary definition—never introduces
anything “into” commerce. It only distributes (i.e.,
“transports” or “deliver[s]”) finished transportation
fuel, such as E15, from one point to another. See 40
C.F.R. § 80.2(l); Webster’s Third New International
Dictionary 660 (1961) (defining “distribute”). So subclause (I), as EPA reads it, is, in fact, a superfluity,
because the agency could not place the point of
obligation on distributors whether that clause existed
or not.
The muddle generated by EPA’s reading doesn’t end
there. Consider the effect on subclause (III). That
provision provides that the “renewable fuel obligation
. . . shall . . . consist of a single applicable percentage
that applies to all categories of persons specified in
subclause (I).” 42 U.S.C. § 7545(o)(3)(B)(ii)(III). But if
EPA is right, and the point of obligation is determined,
not under subclause (I), but under the compliance
provision, why does Congress take such a circuitous
85a
route to get there—a reference in subclause (III) to
subclause (I), which, in turn, in EPA’s reasoning (but
without linguistic underpinning), refers back to the
compliance provision? Couldn’t Congress in subclause
(III) have just alluded to decisions made by EPA under
the compliance provision directly? Cf., e.g., 42 U.S.C.
§ 7545(o)(4)(A). EPA doesn’t say.
Instead, the agency puts essentially all its eggs in
the compliance provision basket. EPA argues, first and
foremost, that its power to promulgate compliance
provisions is broad and includes the power to set the
point of obligation. And “nothing,” it says, requires it
to “reconsider” that determination. See, e.g., EPA Br.
67-68. My colleagues offer a similar thought, claiming
that Congress knew how to call for a “redo” if that is
what it really wanted. Maj. op. 48. Both arguments,
however, miss the point. When Congress mandates
an annual “determin[ation]” in 42 § 7545(o)(3)(B)(ii),
there is nothing to be redone or reviewed. The determination must happen anew each year, and the
specific instruction to apply that determination “to
refineries, blenders, and importers, as appropriate,”
controls, id. § 7545(o)(3)(B)(ii)(I); any general authorization to promulgate compliance provisions (including,
I’ll assume, license to not “reconsider” them) must
yield to that specific instruction. See SW General, 137
S. Ct. at 941 (“[I]t is a commonplace of statutory
construction that the specific governs the general.”
(alteration in original) (quoting RadLAX Gateway Hotel,
LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012)).
“[B]asic principles of administrative law,” unfortunately for the majority, only further erode EPA’s
position. Maj. op. 52. We “generally ‘presume[] that
Congress expects it statutes to be read in conformity
with the[] [Supreme] Court’s precedents.’” Porter v.
86a
Nussle, 534 U.S. 516, 528 (2002) (second alteration in
original) (quoting United States v. Wells, 519 U.S. 482,
495 (1997)). And those precedents make clear that an
agency, when exercising its congressionally delegated
authority, must “consider [every] important aspect of
the problem.” Motor Vehicle Mfrs. Ass’n of US. v. State
Farm Mutual Ins. Co., 463 U.S. 29, 43 (1983). Failure
to do so “would be arbitrary and capricious.” Id. With
that background in mind, it “would be strange indeed”
if Congress really expected EPA, year in and year out,
to set the renewable fuel standards for the entire
economy, yet allowed the agency—sub silentio—to
do so without considering ever again whether a
“foundational” element of the regulatory program was
“appropriate.” Maj. op. 49.
Retreating from the statutory language, EPA claims
that reading the Act to require it to appropriately
identify the point of obligation each year would be
inconsistent with Congress’s “purpose.” Specifically,
the agency says, it would “reduce the regulatory
certainty required for private parties to plan for
growth.” EPA Br. 72. But EPA’s fears are vastly
overblown. Its concern about upsetting investmentbacked expectations is a reason to not change the point
of obligation; it is not a reason to not consider doing so.
The same goes for my colleagues’ concerns about the
credit trading program, see Maj. op. 50, even if that
program really does require (as my colleagues seem to
assume it does) rock solid stability in the point of
obligation—a dubious proposition, given that credits
are held individual-entity-by-individual-entity, so that
shrinkage or swelling of the number of covered entities
has no impact on the needed computations. EPA’s
duty is to “articulate a satisfactory explanation for its
action,” State Farm, 463 U.S. at 43—an explanation
that must consider the industry’s (including the credit
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traders’) reliance on a prior determination, see, e.g.,
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009) (explaining that it “would be arbitrary and
capricious to ignore” the fact that a “prior policy has
engendered serious reliance interests”); Nat’l Cable &
Telecomms. Ass’n v. FCC, 567 F.3d 659, 670 (D.C. Cir.
2009) (similar). In fact, given the substantial reliance
interests at stake, along with the agency’s prior findings, it seems likely that (in the absence of significantly
changed circumstances or a compelling new analysis)
EPA would be able to make rather short work of the
annual analysis. In most years, the prior analyses and
the reliance interests would probably dictate the
conclusion.
In any event, especially when the alleged downside
of petitioners’ claim is so chimerical, our “role is not to
‘correct’ the [statutory] text so that it better serves
[Congress’s] purposes.” Va. Dep’t of Medical Assistance
Servs. v. U.S. Dep’t of Health & Human Servs., 678
F.3d 918, 926 (D.C. Cir. 2012) (some internal quotation marks omitted) (quoting Engine Manufacturers
Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 1996)).
That is a job for Congress.
For these reasons, I respectfully disagree with the
panel’s conclusion, which grants EPA essentially
unfettered discretion as to when—or even if—it will
consider the appropriateness of the point of obligation.
Indeed, the panel, it seems to me, arrived at its
conclusion only by extending to EPA the type of
“reflexive” deference that the Supreme Court has
recently criticized. Kisor, 139 S. Ct. at 2415 (quoting
Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018)
(Kennedy, J., concurring)). The Court has made clear
that before we may declare a statute genuinely
ambiguous—and, thus, before we, an Article III court,
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may surrender to an executive agency’s (often selfserving) declaration of what the law means—we must
exhaust all the “traditional tools” of statutory construction. Kisor, 139 S. Ct. at 2415 (quoting Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843 n.9 (1984)). Then and only then—
“when that legal toolkit is empty”—may we “wave the
ambiguity flag.” Id.
The majority, however, in apparent haste to bow to
EPA’s admittedly self-serving declaration of what the
law means, see Maj. op. 51 (describing the “burden[s]”
that EPA would rather avoid), doesn’t actually use any
of the tools of statutory construction in an attempt to
discern Congress’s meaning. For example, besides
acknowledging that EPA’s reading of the phrase
“applicable . . . as appropriate” “is not ineluctable,”
Maj. op. 48, the majority has almost nothing to say
about that phrase’s ordinary meaning. Although the
majority declares it “ambiguous,” id. at 49, my
colleagues do not offer a single example of the phrase
being used in the way EPA desires—where the duty to
make a selection, “as appropriate,” (somehow) permits
the decisionmaker wholly to ignore the contemporaneous context of his selection. But see supra pp. 5, 7
(offering examples where EPA’s interpretation makes
no sense). The majority’s treatment of the presumption of consistent usage isn’t much better. It says that
there are multiple “permissible” ways to ascribe the
same meaning to the same words, but doesn’t offer
any, see Maj. op. 46—all the while overlooking an
obvious interpretation that satisfies the presumption
(i.e., EPA must consider the factors that are relevant
at the time of its decision), see supra pp. 6-7. Finally,
the majority writes off the canon against surplusage
without actually finding that the language at issue
isn’t superfluous. The majority avers that a finding
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of superfluity “rests on a complicated series of
inferences,” Maj. op. 47, but that’s not unusual, or
reason to shy away from wading through the muddle.
Complex regulatory schemes “can sometimes make
the eyes glaze over. But hard interpretive conundrums,
even relating to complex rules, can often be solved.”
Kisor, 139 S. Ct. at 2415. To solve such conundrums,
however, we must embrace the canons of interpretation as the useful tools that they are for discerning
Congress’s meaning, not as pests to be dodged and
swatted away in our rush to deference. Here, when
those tools are properly applied, we can discern
Congress’s meaning—which “is the law and must be
given effect.” Chevron, 467 U.S. at 843 n.9.
Nonetheless, I concur in the judgment. As we
explain today with regard to claims brought by the
Alon Petitioners, EPA adequately explained, at
around the time it set the annual obligation for 2017,
why it was not “appropriate” (in light of the facts as
they then existed) to change the point of obligation.
See Maj. op., Part IV.B. Although that explanation
arose in the context of a petition for rulemaking—and
was thus subject to a more deferential form of
arbitrary and capricious review—I would hold here
(for the same reasons that we give in Part IV.B of the
majority opinion) that EPA’s reasoning was sufficient
even under the deference level that demands more of
the agency.
The difference in our standard of review between an
appeal from the agency’s annual determination under
§ 7545(o)(3)(B)(i), (ii)(I), on the one hand, and an
agency’s conventional duty to entertain a petition for
a rulemaking to revise an existing regulation, on the
other, is in practice fairly slight. Under both understandings, the agency is bound to give suitable weight
90a
to reliance interests, and indeed to the general
advantage of regulators’ not rocking too many boats. A
party challenging the status quo faces some sort of
burden in either context—to point to new facts, or to
new discoveries of facts, or to previously unnoticed
flaws in the agency’s analysis, etc. There is, to be sure,
a subtle difference in the deference level, but deference
levels themselves build in a good deal of subjectivity. I
nonetheless write separately because I see Congress
as having imposed a specific, if modest, duty, on the
agency, and having thereby provided an explicit
avenue for review. That explicitness seems to me
designed to, and likely to, concentrate the mind of the
administrator—a congressional choice that we should
honor.
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APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
————
No. 17-1258
————
Consolidated with 18-1027, 18-1040, 18-1041
————
AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent,
SMALL RETAILERS COALITION, et al.,
Intervenors.
————
On Petitions for Review of an Action of the
United States Environmental Protection Agency
————
Argued February 20, 2019
Decided September 6, 2019
————
Thomas A. Lorenzen and Samara L. Kline argued
the causes for Obligated Petitioners. Suzanne Murray
argued the cause for petitioner-intervenor Small Retailers
Coalition. With them on the briefs were Julie R.
Domike, Michael J. Scanlon, Richard S. Moskowitz,
Robert J. Meyers, Elizabeth B. Dawson, Megan H.
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Berge, Lisa M. Jaeger, Brittany M. Pemberton, and Clara
Poffenberger. Evan A. Young entered an appearance.
Bryan M. Killian argued the cause for petitioner
National Biodiesel Board. With him on the briefs was
Douglas A. Hastings.
Devorah Ancel argued the cause for Environmental
Petitioners. With her on the briefs was Eric Huber.
Benjamin R. Carlisle, Attorney, and Michael R.
Eitel, Senior Trial Attorney, U.S. Department of
Justice, argued the causes for respondent. With them
on the brief were Jeffrey H. Wood, Acting Assistant
Attorney General, Jonathan D. Brightbill, Deputy
Assistant Attorney General, and David P. W. Orlin,
Attorney, U.S. Environmental Protection Agency.
Thomas Allen Lorenzen argued the cause for intervenors in support of respondent responding to National
Biodiesel Board. With him on the brief were Robert A.
Long Jr., Kevin King, Stacy Linden, Richard S.
Moskowitz, Robert J. Meyers, and Elizabeth B.
Dawson. David Y. Chung and John P. Wagner entered
appearances.
Seth P. Waxman, David M. Lehn, Saurabh Sanghvi,
Claire H. Chung, Robert A. Long, Jr., Kevin King,
Matthew W. Morrison, Bryan M. Stockton, Bryan M.
Killian, and Douglas A. Hastings were on the brief
for intervenors Growth Energy, et al. in support of
respondent.
Matthew W. Morrison, Bryan M. Stockman, Seth P.
Waxman, David M. Lehn, Saurabh Sanghvi, Claire H.
Chung, Bryan M. Killian, and Douglas A. Hastings
were on the brief for intervenors Renewable Fuels
Association, et al. in support of respondent.
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Before: HENDERSON, TATEL, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: The Clean Air Act’s Renewable Fuel
Program mandates that certain amounts of renewable
fuel must be introduced into the U.S. fuel supply each
year. In late 2017, the EPA promulgated its final 2018
Rule, which, as in previous years, established overall
targets for the fuel market and imposed individual
compliance obligations on fuel refineries and importers.
These consolidated cases concern various challenges to
the 2018 Rule. Several petitioners maintain it is too
strict, others allege it is too lax, and still others argue
that the EPA failed to follow proper procedures in its
promulgation. We conclude that all these challenges
lack merit, except for one: that the EPA violated its
obligations under the Endangered Species Act by
failing to determine whether the 2018 Rule may affect
endangered species or critical habitat. We therefore
grant the petition for review filed by the Gulf
Restoration Network and Sierra Club and remand the
2018 Rule without vacatur for the EPA to comply with
the Endangered Species Act. We deny all other
petitions for review.
I. Background
A. The Renewable Fuel Program
Enacted in 2005 and amended in 2007, the Renewable
Fuel Program (the “Program” or “RFS Program”),
alternatively called the Renewable Fuel Standard,
was designed “[t]o move the United States toward
greater energy independence and security” and “to
increase the production of clean renewable fuels.”
Energy Independence and Security Act of 2007, Pub.
L. No. 110-140, pmbl., 121 Stat. 1492, 1492; see also
94a
id. §§ 201–210 (amending the Program); Energy Policy
Act of 2005, Pub. L. No. 109-58, § 1501, 119 Stat. 594,
1067-76 (enacting the Program). To accomplish these
goals, the Program regulates suppliers through “applicable volume[s]”—mandatory and annually increasing
quantities of renewable fuels that must be “introduced
into commerce in the United States” each year—and
tasks the EPA Administrator with “ensur[ing]” that those
annual targets are met. 42 U.S.C. § 7545(o)(2)(A)(i). As
we explained in Americans for Clean Energy v. EPA,
“[b]y requiring upstream market participants . . . to
introduce increasing volumes of renewable fuel into
the transportation fuel supply, Congress intended the
Renewable Fuel Program to be a ‘market forcing
policy’ that would create ‘demand pressure to increase
consumption’ of renewable fuel.” 864 F.3d 691, 705 (D.C.
Cir. 2017) (first quoting Renewable Fuel Standard
Program: Standards for 2014, 2015, and 2016 and
Biomass-Based Diesel Volume for 2017, 80 Fe
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