Petition for Writ of Certiorari — HollyFrontier Cheyenne Refining, LLC, et al., Petitioners v. Renewable Fuels Association, et al.

Supreme Court briefSep 4, 2020

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No. 20In The

Supreme (tart of % Wnxtib States

HollyFrontier Cheyenne Refining, LLC, HollyFrontier Refining & Marketing, LLC, HollyFrontier Woods Cross Refining, LLC, &

Wynnewood Refining Co., LLC,

Petitioners,

Renewable Fuels Association, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Melissa M. Buhrig

Ryan C. Morris*

CVR Energy, Inc.

Peter C. Whitfield

2277 Plaza Drive

Christopher S. Ross

Suite 500

Sidley Austin LLP

Sugar Land, TX 77479

1501 K Street, N.W.

(281) 207-3200

Washington, D.C. 20005

mmbuhrig@cvrenergy.com (202) 736-8000

rmorris@sidley.com

Counsel for Wynnewood Counsel for HollyFrontier

Refining Co., LLC

Cheyenne Refining, LLC,

HollyFrontier Refining &

Marketing, LLC, and

HollyFrontier Woods Cross

Refining, LLC

September 4, 2020

* Counsel of Record

SEP 10 50,0

isilioSSiS

QUESTION PRESENTED

The Renewable Fuel Standard requires refiners,

blenders, and importers of transportation fuel to blend

increasing amounts of renewable fuels into their prod

ucts each year. Recognizing that this mandate could

harm small refineries, Congress provided that small

refineries facing “disproportionate economic hardship”

could petition EPA for an exemption “at any time.” 42

U.S.C. § 7545(o)(9)(B)(i). The Tenth Circuit, however,

interpreted this provision to add an additional require

ment, namely that a small refinery may obtain an ex

emption only when it has received uninterrupted, con

tinuous extensions of the exemption for every year

since 2011—an interpretation that excludes nearly all

small refineries.

Accordingly, the question presented is:

In order to qualify for a hardship exemption under

§ 7545(o)(9)(B)(i) of the Renewable Fuel Standards,

does a small refinery need to receive uninterrupted,

continuous hardship exemptions for every year since

2011.

(i)

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioners are HollyFrontier Cheyenne Refining,

LLC, HollyFrontier Refining & Marketing, LLC, Hol

lyFrontier Woods Cross Refining, LLC, and Wynnewood Refining Co., LLC. Respondents are Renewable

Fuels Association, American Coalition for Ethanol,

National Growers Association, and National Farmers

Union. The United States Environmental Protection

Agency, who was respondent below, is also a Respond

ent.

HollyFrontier Cheyenne Refining, LLC, HollyFron

tier Refining & Marketing LLC, and HollyFrontier

Woods Cross Refining, LLC are each a wholly owned

subsidiary of HollyFrontier Corporation, a Delaware

corporation publicly traded on the New York Stock Ex

change under the symbol HFC. Other than HollyFron

tier Corporation, no publicly held company holds a

10% or greater interest in HollyFrontier Refining &

Marketing LLC, HollyFrontier Cheyenne Refining,

LLC, or HollyFrontier Woods Cross Refining, LLC.

Wynnewood Refining Company, LLC (“Wynnewood”) is a wholly owned subsidiary of CVR Refining,

LLC, a Delaware limited liability company. CVR Re

fining, LLC is a wholly owned subsidiary of CVR Re

fining, LP, which is an indirect wholly owned subsidi

ary of CVR Energy, Inc., a Delaware corporation pub

licly traded on the New York Stock Exchange under

the Symbol “CVI.”

RELATED PROCEEDINGS

This case arises from a petition for review of final

agency action of the United States Environmental Pro

tection Agency: Renewable Fuels Association, et al. v.

Ill

United States Environmental Protection Agency, No.

18-9533 (10th Cir. Jan. 24, 2020).

No other case is directly related to this one, whether

in state or federal trial or appellate courts, or in this

Court.

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT............................................

RELATED PROCEEDINGS.................................

TABLE OF AUTHORITIES.................................

OPINION BELOW................................................

JURISDICTION....................................................

STATUTORY PROVISION INVOLVED............

INTRODUCTION.................................................

STATEMENT OF THE CASE..............................

I. STATUTORY BACKGROUND.....................

A. Overview of the RFS.................................

B. Small-Refinery Exemptions......................

II. BACKGROUND OF THE CASE..................

A. Factual Background..................................

B. Proceedings Below....................................

REASONS FOR GRANTING THE PETITION...

I. THIS CASE PRESENTS A QUESTION

OF EXCEPTIONAL IMPORTANCE THAT

WARRANTS THIS COURT’S REVIEW

A. Congress Intended The Subsection (B)

Hardship Extension To Be A Safety

Valve, Available At Any Time Throughout

The RFS......................................................

(iv)

TABLE OF CONTENTS—continued

Page

B. The Tenth Circuit’s Interpretation Of

Subsection (B) Is Inconsistent With Con

gressional Intent And This Court’s Statu

tory Interpretation Principles...................

1. The Tenth Circuit’s interpretation of

“extension” is inconsistent with the ap

proach taken by other courts and Con

gress ...........................................................

2. The Tenth Circuit’s ruling is incon

sistent with principles of statutory in

terpretation from this Court and effec

tively renders the subsection (B) hard

ship extension a dead letter..................

II. IMMEDIATE REVIEW IS WARRANTED...

CONCLUSION

TABLE OF CONTENTS—continued

Page

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI

APPENDIX A: Opinion, Renewable Fuels Ass’n

v. U.S. Envtl. Prot. Agency, 948 F.3d 1206

(10th Cir. 2020).................................................

APPENDIX B: Order Denying Petition for Re

hearing or Rehearing En Banc, Renewable

Fuels Ass’n v. U.S. Envtl. Prot. Agency, No.

18-9533 (10th Cir. Apr. 7, 2020).................... 95a

APPENDIX C: Statutory and Regulatory Provi

sions Involved.................................................... 97a

42 U.S.C. § 7545(o)(9)......................................

97a

40 C.F.R. § 80.1441...........................................

99a

Vll

TABLE OF CONTENTS—continued

Page

SUPPLEMENTAL SEALED APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

United States Environmental Protection Agency

Orders Under Review

U.S. Envtl. Prot. Agency, Office of Transp. &

Air Quality, Grant of Request for Extension

of Small Refinery Temporary Exemption

Under the Renewable Fuel Standards Pro

gram for HollyFrontier Cheyenne Refining

LLC’s Cheyenne, WY Refinery......................

U.S. Envtl. Prot. Agency, Office of Transp. &

Air Quality, Grant of Request for Extension

of Small Refinery Temporary Exemption

Under the Renewable Fuel Standards Pro

gram for HollyFrontier Woods Cross Refin

ing LLC’s Woods Cross, Utah Refinery....... 32a

U.S. Envtl. Prot. Agency, Office of Transp. &

Air Quality, Grant of Request for Extension

of Small Refinery Temporary Exemption

Under the Renewable Fuel Standard Pro

gram for Wynnewood Refining Company,

LLC’s Wynnewood, Oklahoma Refinery...... 40a

VIII

TABLE OF AUTHORITIES

CASES

Page

Ali v. Fed. Bureau of Prisons, 552 U.S. 214

(2008)................................................................

Campbell River Timber Co. v. Vierhus, 86

F.2d 673 (9th Cir. 1936)................................

Cent. Bank of Denver, N.A. v. First Interstate

Bank of Denver, N.A, 511 U.S. 164 (1994)....

Credit Suisse Sec. (USA) LLC v. Simmonds,

566 U.S. 221 (2012).......................................

Davis v. Mich. Dep’t of Treasury, 489 U.S.

803 (1989)

3, 13, 15, 21

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)

21, 26

Field v. Mans, 157 F.3d 35 (1st Cir.

1998)

14, 19, 20

Harrison v. PPG Indus., Inc., 446 U.S. 578

(1980)

14, 24

Hermes Consol., LLC v. EPA, 787 F.3d 568

(D.C. Cir. 2015)..............................................

King v. Burwell, 135 S. Ct. 2480 (2015).......

N.Y. Dep’t ofSoc. Servs. v. Dublino, 413 U.S.

405 (1973)........................................................ 3, 22

Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005)..........

Nat’l R.R. Passenger Corp. v. Bos. & Main

Corp., 503 U.S. 407 (1992)...........................

Owasso Indep. Sch. Dist. No. 1 v. Falvo, 534

U.S. 426 (2002)

12, 18

Pa. Co. for Ins. on Lives & Granting Annuities

v. Rothensies, 146 F.2d 148 (3d Cir. 1944)...

SEC v. Zandford, 535 U.S. 813 (2002)......... 3, 26

Sinclair Wyo. Ref. Co. v. EPA, 887 F.3d 986

(10th Cir. 2017)

6, 7, 12, 25, 31

TRW Inc. v. Andrews, 534 U.S. 19 (2001)....

Tyler v. Cain, 533 U.S. 656 (2001).................

TABLE OF AUTHORITIES—continued

Page

United States v. Bishop, 412 U.S. 346

(1973)........................................................

United States v. Donovan, 429 U.S. 413

(1977)........................................................

3, 26

STATUTES AND REGULATIONS

Judicial Redress Act of 2015, Pub. L. No.

114-126, 130 Stat. 282 (2016)......

17U.S.C. § 110...................................

42 U.S.C. § 1314(h)(2)......................

42 U.S.C. § 7411(j)(l)(E)..................

42 U.S.C. § 7545(o)............................

2,4

42 U.S.C. § 7545(o)(l).......................

6, 17

42 U.S.C. § 7545(o)(2)........................

4,5

42 U.S.C. § 7545(o)(3)........................

42 U.S.C. § 7545(o)(5).......................

42 U.S.C. § 7545(o)(9).......................

passim

40 C.F.R. § 80.1401...........................

. 5, 6, 8

40 C.F.R. § 80.1405...........................

40 C.F.R. §§ 80.1405—.1407..............

40 C.F.R. § 80.1406...........................

40 C.F.R. §§ 80.1425—.1426..............

40 C.F.R. § 80.1426...........................

40 C.F.R. § 80.1427...........................

40 C.F.R. § 80.1429...........................

40 C.F.R. § 80.1441...........................

8, 17

40 C.F.R. § 80.1451...........................

75 Fed. Reg. 14,670 (Mar. 26,

2010)................................................. 8, 16, 17, 25

79 Fed. Reg. 42,128 (July 18, 2014)

RULES

Fed. R. Civ. P. 6(b)(1)(B)

Sup. Ct. R. 10...................

TABLE OF AUTHORITIES—continued

OTHER AUTHORITIES

Page

Black’s Law Dictionary (6th ed. 1990)

19, 22

CVR Energy, Inc., Quarterly Report

(10-Q) (Aug. 4, 2020), https://www.sec.

gov/ix?doc=/Archives/edgar/data/l 376139/

000137613920000045/cvi-20200630.htm....

CVR Energy,

Inc., May 2020 IR

Presentation,

https://www.sec.gov/Archives/edgar/data/

1376139/000137613920000036/investorpr

esentationmay2.htm.....................................

Extension, Collins Online English Dictio

nary, https://www.collinsdictionary.com/

dictionary/english/extension (last visited

Sept. 1, 2020)..................................................

Extension, Merriam-Webster.com Dictio

nary, https://www.merriam-webster.com/

dictionary/extension (last visited Sept. 1,

2020).................................................................

Arathy S. Nair & Shradha Singh, U.S.

Refiners’ Biofuel Bills Soar in Oil Market

Slump, Reuters (Aug. 11, 2020), https://

www.reuters.com/article/us-usa-biofuels/

u-s-refiners-biofuel-bills-soar-in-oil-marketslump-idUSKCN257lQ2#:~:text=(Reuters)

%20%2D%20U.S.%20oil%20refiners,in%2

0global%20prices%20and%20demand.... 29, 30

News Release, Mike Enzi, U.S. Senator for

Wyo., Wyoming Delegation: Relief for

Small Refineries Critical for the Jobs,

Communities They Support (July 17, 2019),

https ://www. enzi. senate. gov/public/index.

cfm/2019/7/wyoming-delegation-relieffor-small-refineries-critical-for-the-jobs31

communities-they-support

TABLE OF AUTHORITIES—continued

Page

News Release, Marathon Petroleum Corp.,

Marathon Petroleum Corp. Reports

Second-Quarter 2020 Results (Aug. 3,

2020), https://ir.marathonpetroleum.com/

investor/news-releases/news-details/2020/

Marathon-Petroleum-Corp.-Reports-SecondQuarter-2020-Results/default.aspx...........

5 Oxford English Dictionary (2d ed. 1989)...

Press Release, HollyFrontier Corp., HollyFrontier Announces Expansion of Renew

ables Business (June 1, 2020), https://

www. hollyfrontier. com/investor - relations/

press-releases/Press-Release-Details/2020/

Holly Frontier-Announces - Expansion-ofRenewables-Business/default.aspx

28, 30

Press Release, U.S. Senate Comm, on Env’t

& Pub. Works, Barrasso: Trump Ad

ministration Defends Small Refineries

(Mar. 6, 2020), https://www.epw.senate.gov/

public/index.cfm/2020/3/barrasso-trumpadministration-defends-small-refmeries.... 31

U.S. Dep’t of Energy, Small Refinery

Exemption Study: An Investigation into

Disproportionate Economic Hardship

(Mar. 2011), https://www.epa.gov/sites/

production/file s/2016-12/documents/small refinery-exempt-study.pdf

28, 29

U.S. Energy Info. Admin., Table 5. Refiners’

Total Operable Atmospheric Crude Oil

Distillation Capacity as of January 1, 2020

(2020), https://www.eia.gov/petroleum/

refmerycapacity/table5.pdf..........................

Xll

TABLE OF AUTHORITIES—continued

Page

U.S. Envtl. Prot. Agency, RIN Trades and

Price Information, https://www.epa.gov/

fuels-registration-reporting-and-compliance

-help/rin-trades-and-price-information

(last updated Aug. 10, 2020)......................

U.S. Envtl. Prot. Agency, RFS Small Refin

ery Exemptions, https://www.epa.gov/fuelsregistration-reporting-and-compliancehelp/rfs-small-refinery-exemptions (last

updated Aug. 20, 2020)..............................

Webster’s Third New International Dictio

nary (1986)

14, 19, 20

PETITION FOR A WRIT OF CERTIORARI

HollyFrontier Cheyenne Refining LLC, HollyFrontier Refining & Marketing LLC, HollyFrontier Woods

Cross Refining, LLC, & Wynnewood Refining Co.,

LLC, (the “Refineries”) respectfully petition for a writ

of certiorari to review the decision of the United States

Court of Appeals for the Tenth Circuit.

OPINION BELOW

The Tenth Circuit’s opinion is reported at 948 F.3d

1206 and is reproduced in the appendix to this petition

at Pet. App. la—94a. The underlying EPA orders are

confidential, not reported, and reproduced in a supple

mental, sealed appendix to this petition at Suppl. App.

la-31a, 32a-39a, and 40a-46a

JURISDICTION

The Tenth Circuit entered judgment on January 24,

2020, Pet. App. la, and denied the Refineries’ petitions

for rehearing en banc on April 7, 2020, Pet. App. 95a96a. On March 19, 2020, in light of the ongoing public

health concerns relating to COVID-19, the Court en

tered an order extending the time to file a petition for

a writ of certiorari to 150 days. This Court has juris

diction under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 211(o)(9)(B)(i) of the RFS provides that:

A small refinery may at any time petition the Ad

ministrator for an extension of the exemption un

der subparagraph (A) for the reason of dispropor

tionate economic hardship.

42 U.S.C. § 7545(o)(9)(B)(i). Other relevant provisions

of the RFS, id. § 7545(o), are set forth in statutory ap

pendix D to this petition. See Pet. App. 97a-103a.

INTRODUCTION

In the decision below, the Tenth Circuit declared the

eventual extinction of small-refinery exemptions un

der the RFS. It did so despite Congress’s express

provision that EPA may extend these exemptions to

small refineries “at any time” upon a showing of

disproportionate economic hardship. 42 U.S.C.

§ 7545(o)(9)(B). The Tenth Circuit reached its result

through a contorted interpretation of the RFS, con

cluding that Congress’s use of the term “extension”

means that a small refinery must show that it contin

uously maintained the exemption in each year preced

ing the one for which it requested the extension. Few,

if any, small-refineries can meet this judicially im

posed test, and once a small refinery does not require

EPA to extend it an exemption for a single year, it will

be forever barred from receiving one.

Properly interpreted, the text and structure of the

RFS’s small-refinery hardship exemption demonstrate

that it serves as a safety valve. “[A]t any time” a small

refinery suffers from a disproportionate economic

hardship, EPA may grant an extension of the exemp

tion. Nothing in the statute suggests that Congress

saw fit to remove this protection at some point. To the

contrary, because Congress directed that the burden to

blend renewable fuels into transportation fuel should

increase each and every year, Congress provided an

ongoing means of relief for small refineries contending

with their ever-escalating RFS burdens.

The Tenth Circuit’s decision ignored the plain text

and treated the hardship exemption as a temporary

measure, rather than available at any time. Its deci

sion is inconsistent with fundamental principles of

statutory interpretation and this Court’s precedents.

Among other things, the Tenth Circuit ignored the

“fundamental canon of statutory construction that the

words of a statute must be read in their context and

with a view to their place in the overall statutory

scheme.” Davis v. Mich. Dep’t of Treasury, 489 U.S.

803, 809 (1989). The Tenth Circuit reached its flawed

conclusion by reading the term “extension” in an un

duly narrow fashion, even though dictionaries, courts,

and Congress use the term in ways that vary based on

context.

The inevitable result of this decision will be the elim

ination of a statutory exemption for a class of econom

ically disadvantaged refineries that Congress believed

should be available “at any time.” And because these

exemptions are critical to small refineries, the decision

below poses an existential threat to these businesses,

and will wreak havoc upon the communities they serve

and the thousands of jobs they support.

The decision below upsets an exemption scheme

Congress carefully calibrated to afford relief to small

refineries in limited circumstances. And it will deprive

small refineries of economic relief that Congress spe

cifically authorized. Because the Tenth Circuit’s inter

pretation “negate[s]” the exemptions’ “own stated pur

poses,” it cannot stand. N. Y. Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 419—20 (1973). This Court’s imme

diate review is necessary to resolve an important ques

tion of federal statutory interpretation. See SEC v.

Zandford, 535 U.S. 813, 818 (2002) (granting certiorari

“to review the Court of Appeals’ construction” of a stat

utory phrase); United States v. Donovan, 429 U.S. 413,

422 (1977) (granting certiorari “to resolve ... issues,

which concern the construction of a major federal stat

ute”).

Review is also warranted to eliminate the dire con

sequences to and disparate treatment of small refiner

ies caused by the Tenth Circuit’s decision. The Tenth

Circuit recognized that its construction of the RFS

would force small refineries out of business. But the

court below did not face the very human consequences

that flow from this result—shuttering a small refinery

does not mean just the end of a business entity; it

means the end of refining capabilities, jobs, and re

sources to sustain surrounding communities. Indeed,

the Tenth Circuit’s decision is already causing this

damage. Several small refineries have ended opera

tions since the Tenth Circuit’s decision below, includ

ing one of the petitioning refineries. Critically, these

adverse effects of the decision below extend to only

those small refineries and communities within the

Tenth Circuit. Every other small refinery outside that

Circuit will remain eligible for a hardship exemption,

even if they have not continuously received one. That

type of disparate outcome caused by a decision of a

court of appeals should not be allowed to persist. The

Court should grant the petition.

STATEMENT OF THE CASE

I. STATUTORY BACKGROUND

A. Overview of the RFS

In 2005, and then again in 2007, Congress amended

the Clean Air Act to include the present-day RFS pro

gram. See 42 U.S.C. § 7545(o). This program regulates

the nation’s transportation-fuel industry by requiring

that the fuel sold each year contain a percentage of re

newable fuels, advanced biofuels, cellulosic biofuels,

and biomass-based diesel. Id. § 7545(o)(2)(B)(i)—(ii).

The program achieves this goal by requiring “obligated

parties”—entities that produce or import gasoline and

diesel fuel in the 48 contiguous states or Hawaii—to

blend renewable fuels, such as ethanol, into their

transportation-fuel products. See id. § 7545(o)(3)(B)(ii)(I);

40 C.F.R. § 80.1406.

The RFS establishes nationwide, annual targets

for the volume of renewable fuels that obligated par

ties must blend into their transportation fuels. See

42 U.S.C. § 7545(o)(2)(B)(i)-(ii). Each year, EPA con

verts the annual obligation into a percentage stand

ard, which it codifies by regulation. See id.

§ 7545(o)(3)(B)(ii)(II); 40 C.F.R. § 80.1405. Each obli

gated party uses the percentage standard to determine

its individual RFS obligation based on the volume of

gasoline and diesel it produces that year. 42 U.S.C.

§ 7545(o)(3)(B)(ii)(III); 40 C.F.R. §§ 80.1405-.1407. Be

cause the annual targets established by Congress in

crease year after year, the RFS imposes an ever

greater burden on obligated parties.

These obligated parties demonstrate compliance

with their RFS obligations by retiring “Renewable

Identification Numbers” (“RINs”). See 40 C.F.R.

§§ 80.1401, 80.1425—.1426. A RIN is a unique number

generated to represent a volume of renewable fuel. See

id. § 80.1401. A RIN represents an individual gallon of

renewable fuel and is used for compliance purposes.

See id. When a party purchases a batch of renewable

fuel, it also obtains the RINs that go with that batch.

Once a party blends the renewable fuel into transpor

tation fuel, the RINs are separated. Id. §§ 80.1426(e),

80.1429(b). But an obligated party does not need to

blend renewable fuel itself to satisfy its RFS obliga

tion. Instead, it may obtain RINs from other parties

through a credit-based market erected by Congress

and EPA to enable obligated parties to demonstrate

their RFS compliance. See 42 U.S.C. § 7545(o)(5); 40

C.F.R. §§ 80.1427(a)(6), 80.1451. Thus, obligated par

ties that are unable to satisfy their obligation through

blending alone must retire RINs they have purchased

in this marketplace.

B. Small-Refinery Exemptions

The RFS imposes heavy burdens on obligated par

ties, who must purchase and blend a sufficient amount

of renewable fuel on their own or demonstrate equiva

lent compliance by purchasing market-based RINs.

Congress recognized that this program could prove es

pecially harsh for small refineries, which it defined as

those with an “average aggregate daily crude oil

throughput” of 75,000 barrels per day or less each cal

endar year. See 42 U.S.C. § 7545(o)(l)(K), (o)(9); see

also 40 C.F.R. § 80.1401. This is because small refiner

ies lack the “inherent scale advantages of large refin

eries.” See Sinclair Wyo. Ref. Co. v. EPA, 887 F.3d 986,

989 (10th Cir. 2017); see also Hermes Consol., LLC v.

EPA, 787 F.3d 568, 572 (D.C. Cir. 2015).

For example, small refineries tend to be less inte

grated than their larger counterparts. See Hermes

Consol., 787 F.3d at 572. Larger refineries participate

in more segments of the petroleum supply chain, in

cluding transportation, marketing, distribution, and

sales. Smaller refineries do not have the same reach

and often lack the capital necessary to invest in the

infrastructure for blending renewable fuels on their

own. See id. This deprives them of significant cost sav

ings. Likewise, a small refinery might be located in a

remote geographic area with little local demand, re

quiring it to ship most of its refined product by pipe

lines. Pipelines, however, prohibit transportation of

blended fuels, so these refineries have limited ability

to comply with the RFS through blending short of ac

quiring additional infrastructure downstream of the

refinery. When these constraints limit the small refin

ery’s ability to blend renewable fuel, the refinery must

rely heavily on purchasing RINs to satisfy its annual

obligation. Such costs can strain a small refinery’s al

ready tapped resources.

“[T]o protect these small refineries,” Sinclair, 887

F.3d at 989, Congress enacted an exemption program

that applies in three distinct phases of the RFS. See 42

U.S.C. § 7545(o)(9)(A)-(B). First, under subsection (A),

Congress created an initial “[t]emporary exemption”

that relieved all small refineries of any obligations un

der the RFS from its enactment until 2011. See id.

§ 7545(o)(9)(A)(i). Second, Congress provided that the

initial exemption under subsection (A) could be ex

tended for an additional two years (i.e., until 2013) if

the Department of Energy (“DOE”) found that the RFS

program would impose a “disproportionate economic

hardship” on the refinery. Id. § 7545(o)(9)(A)(ii)(I)-(II).

While the first two phases of this program addressed

the inception of the RFS program, and thus are in

cluded within the subsection entitled “Temporary ex

emption,” the third phase addresses the operation of

the RFS after that inception period, and noticeably ap

pears in a different subsection lacking the term “tem

porary.” In that separate subsection—subsection (B)—

Congress provided that a “small refinery may at any

time petition” EPA “for an extension of the exemption

under subparagraph (A) for the reason of dispropor

tionate economic hardship.” Id. § 7545(o)(9)(B)(i) (em

phasis added). When a small refinery petitions EPA,

EPA must consult with DOE and, in addition to DOE’s

recommendation, consider “other economic factors” to

determine whether that refinery has shown a dispro

portionate economic hardship, and thus, whether EPA

may extend the exemption to that refinery. Id.

§ 7545(o)(9)(B)(ii).

In furtherance of subsection (B), EPA adopted “a

hardship provision” in its regulations under which

“any small refinery may apply for a case-by-case hard

ship at any time on the basis of disproportionate eco

nomic hardship.” 75 Fed. Reg. 14,670,14,737 (Mar. 26,

2010). To qualify, a refinery must meet the statutory

definition of “small”—having an average aggregate

daily crude oil throughput of 75,000 barrels or less—

for the year for which it applies and the prior year. 40

C.F.R. §§ 80.1401, 80.1441(e)(2)(iii).

II. BACKGROUND OF THE CASE

A. Factual Background

The Refineries at issue here own and operate three

individual small refineries within the Tenth Circuit.

HollyFrontier’s Cheyenne and Woods Cross refineries

petitioned EPA for extensions of the hardship exemp

tion for their 2016 RFS obligations. Pet. App. 29a—30a,

32a. And the Wynnewood Refinery sought an exemp

tion for its 2017 RFS obligations. Id. at 34a. Each ap

plication explained the financial and structural factors

that demonstrated disproportionate economic hard

ship. After consulting with DOE and considering other

economic factors, EPA granted each petition and ex

tended the requested exemption to each refinery. Id.

at 30a-36a.

B. Proceedings Below

Several associations representing the renewablefuel industry petitioned the Tenth Circuit for review of

the EPA orders extending exemptions to Cheyenne,

Woods Cross, and Wynnewood. The associations chal

lenged the orders on several grounds. Among other

things, they argued that EPA could only extend the

hardship exemption to a small refinery that had re

ceived a hardship exemption under subsection (B) each

year since the initial temporary exemption under sub

section (A) had expired.

After briefing and argument, the Tenth Circuit

granted the associations’ petitions and vacated EPA’s

orders. Among other things, the court below held that

a small refinery is eligible to receive an extension of

the hardship exemption under subsection (B) only if it

has continuously received such an extension each year

since the beginning of the RFS program. Pet. App.

65a—75a.

The Tenth Circuit rested its conclusion on the pur

ported meaning of the term “extension.” Pet. App. 65a—

68a. It relied on a “common definition” of the word that

it found “apparent” from several online dictionaries.

Id. at 66a. Selecting one of several alternative mean

ings within those dictionaries, the court reasoned that

the word “extension” in § 7545(o)(9)(B) meant “to pro

long” rather than “to grant.” Id. at 66a—67a. “These or

dinary definitions of ‘extension,’ along with common

sense,” according to the court, “dictate that the subject

of an extension must be in existence before it can be

extended.” Id. at 67a. Under this definition, a small re

finery may only seek an extension if it has sought and

obtained an extension of the hardship exemption each

year since the start of the RFS program. Thus, “a small

refinery which did not seek or receive an exemption in

prior years is ineligible for an extension.” Id.

The Tenth Circuit supported this conclusion by

adopting the view that under the RFS, small refineries

should be “funnel[ed] ... toward compliance over time.”

Pet. App. 68a (citing Hermes, 787 F.3d at 578). Thus,

“once a small refinery figures out how to put itself in a

position of annual compliance, that refinery is no

longer a candidate for extending (really ‘renewing’ or

‘restarting’) its exemption.” Id.

The court, moreover, embraced the inescapable re

sult of its conclusion: some small refineries facing dis

proportionate economic hardship will be forced to

shutter due to RFS compliance obligations. According

to the court, the RFS was meant “to be aggressive and

‘market forcing.’” Pet. App. 70a. The court surmised

that small-refinery exemptions were not meant to pro

tect small refineries throughout the life of the RFS pro

gram, but merely to extend “small refineries a sub

stantial amount of time to adapt.” Id. In the Tenth Cir

cuit’s view, “a small refinery in 2016 or 2017 had an

ample opportunity to study and understand any dis

proportionate economic impact likely to be occasioned

by meeting Congressional targets” and “ponder ...

whether it made sense to ... remain in the market.” Id.

So if a small refinery could no longer survive after ex

periencing one year without disproportionate eco

nomic hardship, it was part of Congress’s plan, accord

ing to the court, that these refineries should close if the

RFS mandates imposed a disproportionate economic

hardship on them again. The requirement that an “ex

tension” be available only to a currently exempt small

refinery “limits but preserves the small refinery ex

emption while giving meaning to the remainder of 42

U.S.C. § 7545(o)(9).” Id. at 70a-71a.

With respect to the statement in subsection (B) that

a small refinery may petition for an extension of the

exemption “at any time,” the Tenth Circuit acknowl

edged the “expansive” nature of the word “any.” Pet.

App. 72a. But in its view, “even if a small refinery can

submit a hardship petition at any time, it does not fol

low that every single petition can be granted.” Id. Be

cause the Refineries had not received uninterrupted

extensions of the exemption prior to the year in which

they petitioned, the court concluded that EPA acted

beyond its statutory authority and vacated EPA’s or

ders.

REASONS FOR GRANTING THE PETITION

The question presented is one of exceptional im

portance, and the Court should grant the petition to

prevent a lower court from disrupting Congress’s care

fully crafted exemption program under the RFS. Noth

ing in the text of the RFS suggests that Congress in

tended to phase out hardship exemptions for small re

fineries. To the contrary, Congress provided that such

exemptions would be available “at any time” to a small

refinery that experiences “disproportionate economic

hardship.” The Tenth Circuit, however, turned this on

its head, holding that once a small refinery has a single

year where it does not experience disproportionate eco

nomic hardship, it is forever precluded from receiving

an exemption. This holding will eventually foreclose

all small refineries within the Tenth Circuit from re

ceiving a subsection (B) hardship exemption.

Indeed, since the decision below, small refineries

within the Tenth Circuit have begun to limit or cease

petroleum refining operations or started to close their

doors. The loss of a small refinery does not affect the

company alone; it affects individuals who lose employ

ment and surrounding communities. And if allowed to

stand, the Tenth Circuit’s decision will likely cause

many more closures, with the resulting loss of refining

capabilities, loss of jobs, and damage to surrounding

communities. Even worse, this will affect only those

small refineries within the Tenth Circuit. That court’s

erroneous construction does not extend to all other

small refineries in the contiguous United States,

which remain eligible for small refinery exemptions,

even if they have not continuously received an exten

sion.

This Court’s immediate review is necessary to pre

serve Congress’s goal of protecting American small re

fineries from the often-onerous burdens of the RFS

program. Sinclair, 887 F.3d at 991. And it is necessary

to address the anomalous result that small refineries

in the Tenth Circuit may no longer petition for hard

ship exemptions while refineries elsewhere in the na

tion may.

I. THIS CASE PRESENTS A QUESTION OF

EXCEPTIONAL IMPORTANCE THAT WAR

RANTS THIS COURT’S REVIEW.

The Court should grant the petition because the

Tenth Circuit has interpreted a term in the RFS so restrictively that it “transform [s]” the RFS “into some

thing far beyond what Congress plausibly intended.”

Sinclair, 887 F.3d at 996-97; Owasso Indep. Sch. Dist.

No. 1 v. Falvo, 534 U.S. 426, 436 (2002) (when “Con

gress is not likely to have mandated this result,” it is

error to “interpret the statute to require it.”). Despite

any indication in the statutory text that Congress in

tended to phase out the hardship exemption in subsec

tion (B), the panel interpreted an “extension of the ex

emption” to mean that EPA may grant extensions only

to those small refineries that have continuously re

ceived extensions in all prior years. The eventual effect

of this interpretation will be to foreclose all small re

fineries from receiving any hardship extension under

subsection (B), depriving EPA of a tool for regulatory

relief that Congress meant it to have and potentially

preventing some small refiners—who may, for struc

tural reasons, never be able to blend fuel on their

own—from “remain[ing] in the market.” Pet. App. 70a.

According to the plain terms of the statute, Congress

intended the hardship exemption in subsection (B) to

be a safety valve for small refineries throughout the

life of the RFS program and to be available at any

time. The Tenth Circuit’s construction is inconsistent

with this Court’s precedent on statutory interpreta

tion, particularly the principle that “the words of a

statute must be read in their context and with a view

to their place in the overall statutory scheme.” Davis,

489 U.S. at 809.

A. Congress Intended The Subsection (B)

Hardship Extension To Be A Safety

Valve, Available At Any Time Through

out The RFS.

The text, structure, and purpose of the RFS establish

that Congress intended the subsection (B) hardship

exemption to be an ongoing safety valve available

throughout the RFS program to small refineries dis

proportionately affected by the RFS.

Recognizing that the RFS program may be particu

larly burdensome to small refineries, Congress

adopted a three-phase program for exempting small

refineries from the RFS’s obligations. These three

phases consist of (1) an initial blanket exemption at

the outset of the RFS program, (2) a potential two-year

bridge extension of that exemption, and (3) the ongo

ing safety valve available to individual small refineries

on an as-needed, case-by-case basis. See 42 U.S.C.

§ 7545(o)(9)(A)-(B).

The ongoing availability of the subsection (B) hard

ship exemption is apparent from the face of the provi

sion. It authorizes a small refinery “at any time” to

“petition the Administrator [of EPA] for an extension

of the exemption under subparagraph (A) for the

reason of disproportionate economic hardship.” Id.

§ 7545(o)(9)(B)(i). The phrase “at any time” “suggests

a broad meaning,” because “‘read naturally, the word

‘any’ has an expansive meaning.’” See Ali v. Fed. Bu-

reau of Prisons, 552 U.S. 214, 218-19 (2008) (altera

tions omitted) (quoting United States v. Gonzales, 520

U.S. 1, 5 (1997)). It would be counterintuitive for Con

gress to use this phrase if it intended to limit the hard

ship exemption to small refineries that already had

one, or if it intended to imply a sunset provision for the

exemption. On the contrary, Congress knows how to

incorporate time limits when it creates exemptions

and has done so in other amendments to the Clean Air

Act. See 42 U.S.C. § 7411(j)(l)(E) (setting a maximum

number of years beyond which EPA may not grant a

waiver to a regulated entity). With no statutory hint to

the contrary, “at any time” “must be construed to mean

exactly what it says.” Harrison v. PPG Indus., Inc., 446

U.S. 578, 589 (1980).

That subsection (B) provides an “extension of the ex

emption in subsection (A)” in no way limits the ongoing

availability of a hardship extension on an as-needed

basis. A well-accepted meaning of “extension” is “to

make available” or “to grant.” See, e.g., Field v. Mans,

157 F.3d 35, 43 (1st Cir. 1998) (defining “extension” as

(a) to make something available (grant) and (b) to in

crease the length of time of something); Webster’s

Third New International Dictionary 804 (1986) (defin

ing “extend” as “to make available (as a fund or privi

lege) often in response to an explicit or implied re

quest; GRANT”). That meaning fits comfortably

within subsection (B), making clear that, “at any

time,” EPA can grant or make available the exemption

in subsection (A)—i.e., the “requirements” of the RFS

“shall not apply.”

The structure of the statute reinforces that conclu

sion. Congress placed the subsection (B) hardship ex

emption in its own subsection, instead of including it

with the initial and bridge exemptions. This suggests

that Congress had a distinct purpose in mind for its

safety valve provision. See United States v. Bishop,

412 U.S. 346, 356 (1973) (“[CJontext is important in the

quest for [a] word’s meaning.”). Under the heading

“Temporary exemption,” subsection (A) defines the

terms of “the exemption,” which was initially in place

for all small refineries until 2011. See 42 U.S.C.

§ 7545(o)(9)(A)(i). In this first phase, “[t]he require

ments” of the RFS “shall not apply to small refineries.”

Id. In other words, this is “the exemption,” and the re

mainder of subsection (A) and then subsection (B) de

scribe its application in two other ways—the bridge

and the as-needed extension. The bridge exemption

provided that the initial exemption could be extended

for an additional two years if DOE found that a small

refinery would face a disproportionate economic hard

ship under the RFS. See id. § 7545(o)(9)(A)(ii).

The subsection (B) hardship exemption allows EPA

to extend to a qualifying small refinery “the exemption

under subparagraph (A) for the reason of dispropor

tionate economic hardship.” Id. § 7545(o)(9)(B)(i). This

extension is available “at any time,” and nothing in the

text confines EPA’s ability to extend the hardship ex

emption to a certain period of time. See id.) see also

Davis, 489 U.S. at 809 (“It is a fundamental canon of

statutory construction that the words of a statute must

be read in their context and with a view to their place

in the overall statutory scheme.”).

Indeed, the lack of any time limit stands in stark

contrast to the initial exemptions in subsection (A).

There the initial exemption was available until 2011

and the bridge exemption was available for two more

years. The subsection (B) hardship exemption, on the

other hand, has no comparable limits and is not found

under the subsection entitled “Temporary exemption.”

To the contrary, it provides that a small refinery may

petition EPA at any time when it experiences “dispro

portionate economic hardship.” And it instructs EPA

to consult with DOE and then evaluate “other eco

nomic factors” to determine if an extension is war

ranted. This creates an ongoing instruction to the

agencies to look at a small refinery’s present situation

without reference to past circumstances. Subsection

(A) shows that “Congress knew how to impose” a dead

line “when it chose to do so,” but it chose not to do so

in subsection (B). Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 176

(1994). Thus, as EPA recognized in its initial rulemak

ing related to the small-refinery exemption provisions,

the hardship exemption gives the agency discretion to

“grant an extension ... on a case-by-case basis.” 75

Fed. Reg. at 14,735-36.

The plain text of the statute and the structural divi

sion of the exemption program reflects Congress’s in

tention to address particular periods in which small

refineries might experience difficulty under the RFS.

First, in the nascent years of the RFS program, small

refineries needed blanket relief to prepare their infra

structure and modify their business plans to account

for their new obligations. The initial and bridge ex

emptions account for these early years.

Second, Congress recognized that small refineries

might face ongoing difficulties—perhaps just for a year

or two at a time—throughout the life of the RFS pro

gram. These difficulties would not necessarily fade

over time, especially as Congress increased the annual

volume obligation every year. So the subsection (B)

hardship exemption gives EPA discretion to extend re

lief to individual small refineries on an ongoing basis.

Indeed, Congress’s definition of a “small refinery,”

which looks to a refinery’s throughput “for a calendar

year,” instead of at the time the RFS began, confirms

Congress anticipated that a refinery’s eligibility for ex

emptions could change from year to year. See 42

U.S.C. § 7545(o)(l)(K).1 And as a practical matter, the

variable and often volatile nature of RIN prices might

mean that a small refinery is able to comply with the

RFS in a year where prices are low, but face dispropor

tionate economic hardship the next year when prices

are higher.

The text, structure, and purpose of the subsection

(B) hardship exemption establish that Congress in

tended it to be a safety valve, available “at any time”

to a small refinery experiencing disproportionate eco

nomic hardship. Indeed, it is a particularly important

safety valve because the RFS’s obligations increase

year after year.

B. The Tenth Circuit’s Interpretation Of

Subsection (B) Is Inconsistent With Con

gressional Intent And This Court’s Statu

tory Interpretation Principles.

The Tenth Circuit rejected a plain reading of the

subsection (B) hardship exemption. Instead, it con

cluded that the term “extension” in subsection (B) lim

its EPA to extending exemptions to only those small

refineries that have previously and continuously re

ceived an extension of the exemption from the begin

ning of the RFS program. The lower court’s approach

to interpreting this provision is inconsistent with this

1 EPA initially promulgated rules defining a “small refinery” as

a refinery whose “average aggregate daily crude oil throughput

for calendar year 2006’ did “not exceed 75,000 barrels.” 75 Fed.

Reg. at 14,866 (emphasis added). EPA amended the rule in 2014

to remove the “calendar year 2006” language and “to require that

throughput be no greater than 75,000 barrels in the most recent

full calendar year prior to an application for hardship.” See 79

Fed. Reg. 42,128, 42,152 (July 18, 2014); 40 C.F.R.

§ 80.1441(e)(2)(iii).

Court’s precedents and congressional intent. The effect

of this narrow reading is eventually to render the sub

section (B) hardship exemption a dead letter, eliminat

ing a safety valve specifically designed by Congress.

Because “Congress is not likely to have mandated this

result,” the Tenth Circuit erred by “interpret[ing] the

statute to require it.” Falvo, 534 U.S. at 436.

1. The Tenth Circuit’s interpretation of

“extension” is inconsistent with the

approach taken by other courts and

Congress.

The Tenth Circuit limited the scope of the subsection

(B) hardship exemption by focusing on a single term

and a single definition for that multifaceted term. In

doing so, it failed “to construe statutes,” instead focus

ing on “isolated provisions.” King v. Burwell, 135 S. Ct.

2480, 2489 (2015). However, even if one were to isolate

the term “extension,” the Tenth Circuit’s decision is in

consistent with the approach taken by other courts

and Congress.

The court below recognized only a single, limited def

inition of “extension”—to increase a length of time.

Pet. App. 66a-67a. It reached this conclusion by con

sulting a handful of internet dictionaries and selecting

only the definitions that supported its notion that a

small refinery must have had a continuous, uninter

rupted extension in order to be eligible for a further

extension of the exemption. See id.

The term “extension,” however, is not so limited and

has several other equally applicable meanings. As the

dictionaries cited below reveal, the term has numerous

meanings, not all of which require continuity. For ex

ample, one dictionary defines “extension” as “an en

largement in scope or operation” and “the total range

over which something extends.” Extension, Merriam-

Webster.com Dictionary, https://www.merriam-webster.com/dictionary/extension (last visited Sept. 1,

2020). Yet another defines “extension” as “a develop

ment ... that includes or affects more people, things, or

activities.” Extension, Collins Online English Diction

ary, https ://www. collinsdictionary. com/dictionary/eng

lish/extension (last visited Sept. 1, 2020).

The verb form of the term “extension”—“to extend”—

means simply “to make available (as a fund or privi

lege) often in response to an explicit or implied re

quest; GRANT.” Extend, Webster’s Third New Interna

tional Dictionary, supra, at 804. “Extend” can also

mean “to ... prolong,” see Extend, Black’s Law Diction

ary 583 (6th ed. 1990), or to “widen the range, scope,

area of application of... a law,” see 5 Oxford English

Dictionary 595 (2d ed. 1989).

Indeed, the Tenth Circuit’s approach to the term “ex

tension”—as limited to increasing the time period of

something that has continuously been in existence—is

inconsistent with the approach other courts have

taken to the term, as well as the ways in which Con

gress has used “extension” in other statutes. In con

trast to the court below, the First Circuit has explained

that “[t]here are at least two meanings of the word ‘ex

tension’ that could apply” to a statute. See Field, 157

F.3d at 43. These two definitions are (a) to make some

thing available (grant) and (b) to increase the length of

time of something. See id. The Third and Ninth Cir

cuits have similarly recognized that the word “exten

sion” can also mean “renewal,” as EPA urged before

the Tenth Circuit. See Pa. Co. for Ins. on Lives &

Granting Annuities v. Rothensies, 146 F.2d 148, 152

(3d Cir. 1944) (“The word ‘renewal’ ... has been con

strued as synonymous with extension.”); Campbell

River Timber Co. v. Vierhus, 86 F.2d 673, 674-75 (9th

Cir. 1936) (collecting authorities “including federal de

cisions” showing “that the terms ‘extension’ and ‘re

newal’ may be used interchangeably”).

The First Circuit’s analysis further reflects the ways

that Congress often uses the term “extension” in fed

eral statutes. It is a word whose meaning varies based

on context, and Congress has used it to mean a grant

of something or to make something available to a per

son. For example, in the Privacy Act of 2016, Congress

provided for an “extension of privacy act remedies” to

citizens of certain foreign countries—citizens who had

not in prior years enjoyed those remedies. See Judicial

Redress Act of 2015, Pub. L. No. 114-126, § 2,130 Stat.

282, 282 (2016). In other words, Congress did not in

tend “extension” to limit the availability of remedies to

those who could show an uninterrupted and continu

ous possession of remedies.

In addressing yet other exemptions, Congress has

also used the term “extend” to mean “to make availa

ble” or “to ‘proffer.’” Cf. Field, 157 F.3d at 43; Extend,

Webster’s Third New International Dictionary, supra,

at 804. In the copyright context, for instance, Congress

exempted certain performances from the definition of

provided by this clause shall extend to any liability for

posed on such body or organization.” See 17 U.S.C.

§ 110(6). This use of the term is not about lengthening

or adding to an existing exemption, but about the scope

of the exemption. And Congress took a similar ap

proach in the Social Security laws. See 42 U.S.C.

§ 1314(h)(2)(A)-(B). Likewise, Federal Rule of Civil

Procedure 6(b)(1)(B) allows a court to “extend the

time” to file, in certain circumstances, “after the time

has expired.” Fed. R. Civ. P. 6(b)(1)(B).

The Tenth Circuit’s view that an extension of the ex

emption requires continuity or is unavailable to new

entities is simply inconsistent with Congress’s use of

the term.

2. The Tenth Circuit’s ruling is incon

sistent with principles of statutory in

terpretation from this Court and ef

fectively renders the subsection (B)

hardship extension a dead letter.

The Tenth Circuit’s interpretation of the subsection

(B) hardship exemption, Pet. App. 66a-67a, is also in

consistent with core principles of statutory interpreta

tion from this Court. The “words of a statute must be

read in their context and with a view to their place in

the overall statutory scheme.” Davis, 489 U.S. at 809.

Even if the Tenth Circuit’s reading were permissible,

the “existence of alternative dictionary definitions of’

a key statutory term, “each making some sense” within

a statute is a quintessential indicator “that the statute

is open to interpretation.” Natl R.R. Passenger Corp.

v. Bos. & Main Corp., 503 U.S. 407, 418 (1992); cf. Nat’l

Cable & Telecomms. Ass’n v. Brand XInternet Servs.,

545 U.S. 967, 989 (2005) (explaining that an agency’s

chosen definition receives deference “where a statute’s

plain terms admit of two or more reasonable ordinary

usages”). And in those circumstances, courts must still

“interpret the words ‘in their context and with a view

to their place in the overall statutory scheme,”’ not “in

a vacuum.” Tyler v. Cain, 533 U.S. 656, 662 (2001)

(quoting Davis, 489 U.S. at 809). The Tenth Circuit’s

narrow view of “extension” created an eligibility re

quirement that appears nowhere in the statutory text

and upends the statute’s structure and purpose. See

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 132—33 (2000) (“The meaning—or ambiguity—of

certain words or phrases may only become evident

when placed in context.”),' see also Extend, Black’s Law

Dictionary, supra at 583 (explaining that the “[t]erm

lends itself to great variety of meanings, which must

in each case be gathered from context”).

According to the Tenth Circuit, no small refinery

may receive a subsection (B) hardship exemption un

less it has maintained an exemption since the RFS’s

enactment. In other words, a small refinery must have

petitioned for and obtained a hardship exemption in

each prior year of the RFS to qualify for any further

extension. And once a small refinery does not experi

ence “disproportionate economic hardship” in a given

year, it is forever cut off from receiving any further ex

tensions.

This view of the subsection (B) hardship exemption

disrupts the RFS’s small-refinery and broader statu

tory scheme. And because this interpretation “ne

gate^]” the exemptions’ “own stated purposes,” it can

not stand. Dublino, 413 U.S. at 419-20.

To reach its result, the Tenth Circuit fixated on a

single term and ignored the overall structure and con

text of the small-refinery exemption. As explained, the

small-refinery exemption provisions respond to the

two ways in which the RFS program could burden

small refineries. See supra, 16-17. In subsection (A),

Congress defined a temporary exemption and provided

two specified time periods for an initial blanket period

of its applicability while the RFS program was getting

off the ground. Subsection (B), by contrast, establishes

an ongoing, case-by-case safety valve available to a

small refinery “at any time” upon a specific showing of

disproportionate economic hardship in the year for

which a refinery seeks the exemption—this safety

valve is not temporary.

The court below disregarded the distinction between

subsection (A) and subsection (B), reasoning that the

RFS had a supposed policy that all small refineries

should be “funnel[ed]” into compliance over time. Pet.

App. 68a (citing Hermes, 787 F.3d at 578). This view,

however, not only ignores the structure of the statute

but also its operation. First, the court’s focus on funneling small refineries toward compliance elevates

subsection (A) and ignores subsection (B). Through

subsection (A), Congress expressed the view that small

refineries had specific periods of time to prepare for

RFS obligations. But subsection (B) demonstrates

Congress’s view that this preparatory period would not

be enough and that small refineries may experience

disproportionate economic hardship throughout the

life of the RFS. Second, and relatedly, the RFS as

sesses compliance annually; there is not a single point

at which an obligated party is “in compliance.” Com

pliance depends on a party’s generating and/or pur

chasing sufficient RINs and then retiring those RINs

to EPA, depending on the amount of fuel produced or

imported in a particular year. In recognition of the

hardships that might befall a small refinery in a given

year, Congress made the subsection (B) hardship ex

tension available “at any time.” Nothing suggests Con

gress intended this hardship extension to become un

necessary at some point. “Had Congress intended this

result, it most certainly would have said so.” Credit

Suisse Sec. (USA) LLCv. Simmonds, 566 U.S. 221, 228

(2012).

The Tenth Circuit, nonetheless, used its view of the

purported policy of the RFS to justify its conclusion.

And it even went a step further to conclude that Con

gress intended small refineries to either profit or per

ish under the RFS, surmising that by 2016, small re

fineries had sufficient time to “ponder ... whether it

made sense to ... remain in the market.” Pet. App. 70a.

This subverts the intent of the RFS. That Congress al

lowed small refineries to petition “at any time” demon

strates that it envisioned a much different purpose

for the subsection (B) hardship extension than the

one envisioned by the Tenth Circuit. See 42 U.S.C.

§ 7545(o)(9)(B)(i). The word “any” has an expansive

meaning. See supra, 13-14. Yet, the Tenth Circuit

brushed aside this expression of congressional intent

by reasoning that even if a small refinery may petition

for an extension “at any time,” that does not mean one

can be granted at any time. See Pet. App. 72a. In other

words, the court below thought Congress gave small

refineries a right without a remedy, an entirely hollow

gesture.

Such a construction violates the “‘cardinal principle

of statutory construction’ that ‘a statute ought, upon

the whole, to be so construed that, if it can be pre

vented, no clause, sentence, or word shall be superflu

ous, void, or insignificant.” TRW Inc. v. Andrews, 534

U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S.

167, 174 (2001)). The Tenth Circuit’s ruling excises “at

any time”—and eventually the entire subsection (B)

hardship extension—from the RFS program. In the ab

sence of any indication to the contrary, it was error for

the court to find that this phrase “means anything

other than what it says.” Harrison, 446 U.S. at 589.2

Moreover, the Tenth Circuit’s view that the subsec

tion (B) hardship extension would eventually serve no

purpose is inconsistent with that provision’s purpose.

Congress gave no suggestion that it intended its

2 The Tenth Circuit also ignored the fact that its ruling might

have the perverse effect of encouraging small refineries to peti

tion for an extension merely to maintain continuous receipt of ex

tensions. That incentive cannot be squared with the statute.

safety-valve provision to be welded shut at some point.

On the contrary, the ongoing availability of exemp

tions aligns with Congress’s overall purposes. Con

gress provided a means of relief for small refineries on

an as-needed basis when confronted with “dispropor

tionate” hardship. Cf. Sinclair, 887 F.3d at 989. And,

when implementing the RFS small-refinery exemp

tions in its regulations, EPA recognized that it would

review these petitions “on a case-by-case basis” and

that it “has discretion to determine the length of any

exemption that may be granted in response.” 75 Fed.

Reg. at 14,735-76. This ongoing relief was necessary

in light of refineries’ annually escalating burdens un

der the RFS. Indeed, the Tenth Circuit noted that Con

gress’s “targets were designed to be aggressive and

‘market forcing.’” Pet. App. 70a. But it failed to appre

ciate that Congress’s aggressive targets are precisely

why Congress felt the availability of an ongoing hard

ship exemption was necessary. Congress anticipated

that as the RFS’s burdens increased year after year,

small refineries may experience disproportionate eco

nomic hardship in certain years and require an exten

sion of the exemption in those years. Requiring small

refineries to continuously receive an extension without

interruption in order to qualify for any additional ex

tension disrupts this scheme and the discretion vested

with EPA.

The three-phased structure of the small-refinery ex

emption provisions illustrates how Congress intended

to protect small refineries in the long run. There is no

reason—and certainly none provided by the Tenth Cir

cuit—why Congress would expect to withhold relief

from a small refinery presently suffering a dispropor

tionate economic hardship simply because that refin

ery did not experience similar hardship in a prior year.

By instructing EPA to consult with the DOE and con

sider “other economic factors” for each hardship peti

tion, Congress gave EPA discretion to assess the cir

cumstances a small refinery confronts in a given year.

These circumstances could include a heavier volume

obligation, business disruption in the refinery’s small

market, a spike in RIN prices, or a negative refining

margin, just to name a few. Congress meant to provide

relief when circumstances such as these would pro

voke disproportionate economic hardship; the Tenth

Circuit’s reading of the hardship provision failed to “be

guided to a degree by common sense as to the manner

in which Congress is likely to delegate a policy decision

of such economic and political magnitude to an admin

istrative agency.” Brown & Williamson Tobacco Corp.,

529 U.S. at 133.

II. IMMEDIATE REVIEW IS WARRANTED.

The Tenth Circuit’s flawed interpretation of the sub

section (B) hardship exemption requires this Court’s

immediate review. The ongoing validity of the RFS’s

exemption program is an important question of federal

law, and this Court has not before addressed the RFS’s

small-refinery provisions. See Sup. Ct. R. 10. Addition

ally, the decision below threatens the livelihood of

small refineries in the Tenth Circuit, their employees,

and the communities they serve, and that threat will

create inequities nationwide because small refineries

outside the Tenth Circuit are not subject to the same

interpretation of the hardship exemption.

First, the discrete question of statutory interpreta

tion presented by this petition is one of exceptional im

portance. See Zandford, 535 U.S. at 818 (granting cer

tiorari “to review the Court of Appeals’ construction”

of a statutory phrase); Donovan, 429 U.S. at 422

(granting certiorari “to resolve ... issues, which con-

cern the construction of a major federal statute”)- Con

gress made its purposes clear: exemptions on the basis

of hardship may be extended “at any time” to a small

refinery facing disproportionate economic hardship.

The Tenth Circuit’s opinion upends this purpose by ex

cising this key phrase and adopting a judicially im

posed requirement that has no basis in the statutory

text. The resulting unavailability of the hardship ex

emption to numerous small refineries will result in

their facing hundreds of millions of dollars of RFS com

pliance costs. The court below interpreted the statute

to be something beyond what Congress intended, and

this Court’s review is necessary to preserve Congress’s

intent.

Second, small refineries and the communities they

serve within the Tenth Circuit face dire consequences

as a result of the opinion below. If allowed to stand,

it will soon render the safety-valve provision,

§ 7545(o)(9)(B), a dead letter within that Circuit.

Small refineries rely on that provision in order to stay

in business, but the loss of the exemption is already

affecting small refineries. For instance, until recently,

five refineries were operating in the state of Wyo

ming.3 Each is a small refinery and thus presump

tively eligible to petition for an extension of the hard

ship exemption—until, according to the Tenth Circuit,

each no longer needs one for a single year. Petitioner

Cheyenne Refinery was one of these five small refiner

ies in Wyoming, but the loss of future hardship exten

sions from the decision below, coupled with other fac-

3 U.S. Energy Info. Admin., Table 5. Refiners’ Total Operable

Atmospheric Crude Oil Distillation Capacity as of January 1, 2020

(2020), https://www.eia.gov/petroleum/refinerycapacity/table5.pdf.

As noted, the Cheyenne refinery no longer produces transporta

tion fuel.

tors, has led Cheyenne to cease its petroleum-fuel op

erations, resulting in the loss of hundreds of jobs.4

Thus, the opinion below has and will continue to dis

rupt an industry across the State. Other small refiner

ies in the Tenth Circuit face a similar fate as they en

counter additional hardships.

The “hardship” that a small refinery may encounter

can take a number of forms, ranging from decreased

profitability and unsustainable margins because of

compliance costs to being forced to buy RINs on the

market due to the lack of infrastructure needed to

blend renewable fuels. When assessing a small refin

ery’s petition, DOE considers these factors, as well as

other non-financial factors, such as the local market’s

acceptance of renewable fuels, whether the refinery’s

state has exceptional regulations, and whether the re

finery serves a niche market. See U.S. Dep’t of Energy,

Small Refinery Exemption Study: An Investigation

into Disproportionate Economic Hardship 33-35 (Mar.

2011).5 DOE has also explained that small refineries

“generally lack the revenue streams generated by

crude oil production and national product marketing

to counteract the historic volatility in cash flows from

the refining industry.” Id. at 36. In “some circum

stances,” DOE has found, “a small refinery may face

compliance costs that would significantly impact the

operation of the firm, leading eventually to an inability

to increase efficiency to remain competitive, eventu-

4 See Press Release, HollyFrontier Corp., HollyFrontier Announces

Expansion of Renewables Business (June 1, 2020), https://www.hollyfrontier.com/investor-relations/press-releases/Press-ReleaseDetails/2020/HollyFrontier-Announces-Expansion-of-RenewablesBusiness/default.aspx.

6 https://www.epa.gov/sites/production/files/2016- 12/documents/

small-refmery-exempt-study.pdf.

ally resulting in closure.” Id. In other words, compli

ance costs can compound other factors, transforming

into a disproportionate economic hardship. Accord

ingly, DOE has recognized that the RFS poses a

heightened threat to a small refinery’s viability, and it

accounted for that when addressing the RFS exemp

tions.

Small refineries, including the Refineries here, will

be crippled without the ability to seek a subsection (B)

hardship exemption. The cost of RFS compliance can

amount to hundreds of millions of dollars. Many small

refineries lack the infrastructure needed to blend re

newable fuels on their own, and are therefore entirely

dependent on the RIN market for RFS compliance. In

those circumstances, these refineries must rely on pur

chasing RINs from more-established, integrated obli

gated parties. The RIN market has historically been

volatile, increasing the economic uncertainty that is

already built into the RFS’s ever-increasing obliga

tions.

Without the hardship exemption, small refineries

will have no recourse if circumstances create a dispro

portionate economic hardship. This ongoing business

concern is magnified in light of recent events: RIN

prices have skyrocketed after the Tenth Circuit re

leased its opinion,6 while gasoline prices have cra

tered.7 RIN prices are currently at their highest rate

6 See U.S. Envtl. Prot. Agency, RIN Trades and Price Information,

https://www.epa.gov/fuels-registration-reporting-and-compliancehelp/rin-trades-and-price-information (last updated Aug. 10, 2020)

(apply Fuel (D Code) filter for “D6” and Transfer Year Filter for

2020) (D6 (ethanol) price was $0.07 on January 20, 2020, and

$0.28 on June 15, 2020).

7 See Arathy S. Nair & Shradha Singh, U.S. Refiners’ Biofuel

Bills Soar in Oil Market Slump, Reuters (Aug. 11, 2020), https://

www.reuters.com/article/us-usa-biofuels/u-s-refiners-biofuel-bills-

in two years.8 These harms are so detrimental to small

refineries that small refineries are already reacting.

Marathon Petroleum Corporation announced it would

shutter its small refinery in Gallup, New Mexico,

which is expected to result in layoffs of the refinery’s

220 employees in October 2020.9 And the Cheyenne

Refinery no longer produces petroleum fuels.10 Simi

larly, Wynne wood has had to defer a $117 million pro

ject that would have enhanced its refining of crude oil

and announced a project that, if approved, would re

sult in the reduction of crude oil processing at the re

finery.11 These are precisely the situations in which

the hardship exemption should be available, but no re

lief is possible for the Tenth Circuit’s small refineries.

The Tenth Circuit recognized that its opinion could

lead to small refineries closing. But it dismissed this

reality based on a flawed assumption that small refin

eries should have simply figured out how to comply.

Pet. App. 70a. This ignored not only the statutory

soar-in-oil-market-slump-idUSKCN257lQ2#:~:text=(Reuters)

%20%2D%20U.S.%20oil%20refiners,in%20global%20prices%20

and%20demand.

8 See id.

9 See News Release, Marathon Petroleum Corp., Marathon

Petroleum Corp. Reports Second-Quarter 2020 Results (Aug. 3, 2020),

https://ir.marathonpetroleum.com/investor/news-releases/newsdetails/2020/Marathon-Petroleum-Corp.-Reports-Second-Quarter2020-Results/default.aspx.

10 See HollyFrontier Announces Expansion of Renewables

Business, supra note 4.

11 See CVR Energy, Inc., May 2020IR Presentation, at 23, https://

www.sec.gov/Archives/edgar/data/1376139/000137613920000036/

investorpresentationmay2.htm; CVR Energy, Inc., Quarterly Re

port (10-Q) (Aug. 4, 2020), https://www.sec.gov/ix?doc=/Archives/

edgar/data/1376139/000137613920000045/cvi-20200630.htm.

scheme, but also the harm that a small refinery’s clos

ing will do to the refining capabilities, jobs, and re

sources needed to sustain the surrounding community.

Small refineries often operate in distinct, rural loca

tions, supplying quality jobs and resources to support

local communities. Shuttering a small refinery does

not merely affect that business; it adversely affects the

individuals and communities that rely on it.12 The

Tenth Circuit’s decision, therefore, could have farreaching adverse effects in many pockets of America.

Moreover, the Refineries here and similarly situated

small refineries may be excluded from the hardship ex

emption through no fault of their own. Some small re

fineries actively sought hardship exemptions in prior

years, only to have relief improperly denied by EPA.

As the Tenth Circuit recognized elsewhere, EPA ap

plied an unduly restrictive reading of the RFS in the

past. See Sinclair, 887 F.3d at 997. Accordingly, small

refineries may be denied exemption eligibility not be

cause they reached “compliance,” but because they

were improperly denied an exemption in the past.

Moreover, small refineries did not know that they had

to petition for review in an effort to maintain eligibil

ity. Until the Tenth Circuit’s ruling, there was no basis

to believe petitioning for review was a prerequisite to

12 See, e.g., News Release, Mike Enzi, U.S. Senator for Wyo.,

Wyoming Delegation: Relief for Small Refineries Critical for

the Jobs, Communities They Support (July 17, 2019), https://

www.enzi.senate.gov/public/index.cfm/2019/7/wyoming-delegationrelief-for-small-refineries-critical-for-the-jobs-communities-theysupport; Press Release, U.S. Senate Comm, on Env’t & Pub.

Works, Barrasso: Trump Administration Defends Small

Refineries (Mar. 6, 2020), https://www.epw.senate.gov/public/

index.cfm/2020/3/barrasso-trump-administration-defends-smallrefineries (statement of Sen. Barrasso) (“In communities across

the country, small refineries employ tens of thousands of Ameri

cans and support local economies”).

ensuring a small refinery would remain eligible for

hardship exemptions in the future. Indeed, EPA itself

has not imposed the same eligibility criteria now man

dated by the Tenth Circuit, as demonstrated by its re

vised regulation defining “small refinery,” see supra,

17 n.l, and its history of granting petitions for many

years without regard to prior receipt of the extension.

Now, however, a past denial under EPA’s overly strin

gent standard—or a refinery seeking a new extension

after a period of compliance—will nevertheless erect a

permanent bar against further exemptions.

Third, the decision below will result in disparate

treatment in different Circuits, as small refineries

within the Tenth Circuit will be held to a different

standard than refineries across the rest of the country.

Inequitable treatment based on geographic location

will have significant consequences. All small refineries

face the possibility of economic hardship under the

RFS. Small refineries in any location outside the

Tenth Circuit, however, continue to have recourse un

der the RFS regardless of their exemption history.

They may petition for an extension of the exemption

on the basis of disproportionate economic hardship “at

any time,” as the statute permits. Small refineries in

the Tenth Circuit, by contrast, have no parallel safe

guard if they have not been continually exempted from

the RFS. Instead, when faced with substantial finan

cial difficulties, these refineries face an existential

threat to their business not borne by their counter

parts elsewhere in the country. This patchwork ap

proach is unfair to regulated parties, will create diffi

culties in EPA’s administration of the RFS program,

and highlights the need for this Court’s immediate re

view.

Many small refineries have been able to comply with

the RFS in at least one compliance year, so the reach

of the Tenth Circuit’s decision could be broad. Accord

ing to EPA data on the number of refineries that have

sought and obtained an extension of the hardship ex

emption, no more than seven small refineries received

an extension of the hardship exemption in 2015. See

U.S. Envtl. Prot. Agency, RFS Small Refinery Exemp

tions tbl.2.13 Accordingly, the Tenth Circuit’s decision

will likely have far reaching implications within that

Circuit. Yet, small refineries elsewhere can continue to

enjoy the protections explicitly afforded by Congress.

Such unequal treatment under the RFS should not

stand. Immediate review is warranted to preserve con

gressional intent and to ensure that the RFS’s exemp

tion provisions are applied uniformly across the na

tion.

13 https://www.epa.gov/fuels-registration-reporting-andcompliance-help/rfs-small-refinery-exemptions (last updated

Aug. 20, 2020).

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

Melissa M. Buhrig

Ryan C. Morris*

CVR Energy, Inc.

Peter C. Whitfield

2277 Plaza Drive

Christopher S. Ross

Suite 500

Sidley Austin LLP

Sugar Land, TX 77479

1501 K Street, N.W.

(281) 207-3200

Washington, D.C. 20005

mmbuhrig@cvrenergy.com (202) 736-8000

rmorris@sidley.com

Counsel for Wynnewood Counsel for HollyFrontier

Refining Co., LLC

Cheyenne Refining, LLC,

HollyFrontier Refining &

Marketing, LLC, and

HollyFrontier Woods Cross

Refining, LLC

September 4, 2020

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.