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

(Court of tbr TUnxtib 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

APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI

Melissa M. Buhrig

Ryan C. Morris*

Peter C. Whitfield

CVR Energy, Inc.

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

TABLE OF CONTENTS

Page

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

(i)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 18-9533

Renewable Fuels Association; American

Coalition for Ethanol; National Corn Growers

Association; National Farmers Union,

Petitioners,

United States Environmental Protection Agency,

Respondent,

and

HollyFrontier Cheyenne Refining, LLC;

HollyFrontier Refining and Marketing, LLC;

HollyFrontier Woods Cross Refining, LLC;

Wynnewood Refining Company, LLC,

Intervenors-Respondents.

The American Fuel and Petrochemical

Manufacturers,

Amicus Curiae.

Petition for Review from an Order of the

Environmental Protection Agency

(EPA No. 1-3876)

Filed January 24, 2020

Before: BRISCOE, KELLY, and LUCERO,

Circuit Judges.

OPINION

BRISCOE, Circuit Judge:

THE CLEAN AIR ACT, RENEWABLE

FUELS, AND SMALL REFINERIES......... 1215

LEGISLATIVE AND EXECUTIVE HIS

TORY....................................................... 1215

REGULATIONS AND POST-ENACT

MENT HISTORY................................... 1219

THE EXEMPTION EXTENSION PE

TITIONS ................................................ 1226

CHEYENNE................................... 1227

WOODS CROSS............................. 1228

WYNNEWOOD.............................. 1229

II. THE BIOFUELS COALITION’S STAND

ING TO SUE.................................................. 1230

III. OTHER JURISDICTIONAL ISSUES......... 1239

TIMELINESS........................................ 1239

RIPENESS............................................. 1241

IV. THE BIOFUELS COALITION’S STATU

TORY CONSTRUCTION CHALLENGES... 1242

EXTENSION OF EXEMPTION........... 1243

TEXTUAL ANALYSIS................... 1244

THE 2014 SMALL REFINERY

RULE.............................................. 1249

DISPROPORTIONATE ECONOMIC

HARDSHIP............................................ 1252

HARDSHIP FROM COMPLIANCE.... 1253

THE BIOFUELS COALITION’S ADDI

1254

TIONAL CHALLENGES

VI. MOTIONS........................

VII. CONCLUSION...............

1257

1258

In the mid-2000s, Congress launched an effort to

amend the Clean Air Act (“CAA”) to try to reduce the

nation’s dependence on fossil fuels. The resulting leg

islation set ambitious targets for replacing specified

volumes of crude oil fuel with renewable fuels. The

legislation created several exemptions from this “bio

fuels” mandate, including a temporary exemption for

small refineries if compliance in a given year would

impose disproportionate economic hardship. The

United States Environmental Protection Agency

(“EPA” or “agency”) is charged with implementing the

legislation, and the agency has promulgated numer

ous regulations for that purpose.

At issue here are three EPA orders granting exten

sions of the small refinery exemption. Those orders

were not made available to the public, for reasons

later explained. The orders are being challenged by a

group of renewable fuels producers who say they

found out about the extensions through news articles

or public company filings. We refer to these producers

collectively as the Biofuels Coalition, and their peti

tion to this court raises several important questions.

The EPA opposes the Biofuels Coalition’s appeal. So

do the three recipients of the small refinery exten

sions, who have been granted leave to intervene.

As a preliminary matter, we conclude that the Bio

fuels Coalition has standing to sue. Constituents of

the Biofuels Coalition have established an injury in

fact in the form of lower prices, lower revenues, or in

creased competition with respect to the renewable

fuels those constituents market and sell. For stand

ing purposes, this injury is fairly traceable to the

EPA’s decisions to grant extensions of the three small

refinery exemptions in question. A favorable judicial

decision is likely to redress at least some of this inju

ry, assuming, as we must, that the EPA will continue

to follow Congress’s directive to implement and flesh

out the renewable fuels program.

We also conclude that this court otherwise has ju

risdiction over the matter. This case does not involve

a challenge to a nationally-applicable agency rule,

which challenge could only be heard in the United

States Court of Appeals for the District of Columbia

Circuit. The Clean Air Act contains a 60-day filing

deadline with jurisdictional implications, but that

deadline is triggered when final agency action ap

pears in the Federal Register. The EPA never pub

lished the extension orders at issue. And although

members of the Biofuels Coalition were not invited to

participate in the proceedings that generated the or

ders, the record is sufficient (and the controversy is

ripe) for judicial resolution.

On the merits, we agree in part with two of the Bio

fuels Coalition’s three statutory construction argu

ments. The amended Clean Air Act allows the EPA to

grant an “extension” of the small refinery exemp

tion - not a stand-alone “exemption” - in response to

a convincing petition. The statute limits exemptions

to situations involving “extensions,” with the goal of

forcing the market to accept escalating amounts of

renewable fuels over time. None of the three small

refineries here consistently received an exemption in

the years preceding its petition. The EPA exceeded its

statutory authority in granting those petitions be

cause there was nothing for the agency to “extend.”

Further, one of the EPA’s reasons for granting the

petitions was to address disproportionate economic

hardship caused by something other than compliance

with the renewable fuels mandate. That, too, was be

yond the agency’s statutory authority. The Biofuels

Coalition additionally claims that the EPA read the

word “disproportionate” out of the statute, but we re

ject that argument.

Once we move from the topic of statutory authority,

we disagree with almost all of the Biofuels Coalition’s

assertions that the EPA acted arbitrarily and capri

ciously in granting the extension petitions. We hold

that the agency did abuse its discretion, however, by

failing to address the extent to which the three refin

eries were able to recoup their compliance costs by

charging higher prices for the fuels they sell. The

EPA has studied and staked out a policy position on

this issue. One of the refineries expressly raised the

issue in its extension petition. It was not reasonable

for the agency to ignore it.

THE CLEAN AIR ACT, RENEWABLE FUELS

AND SMALL REFINERIES

As background for our textual analysis, we briefly

summarize the legislative and executive history of

the pertinent amendments to the Clean Air Act,

along with the law’s provisions relating to small re

fineries. We summarize EPA regulations and post

enactment legislative and executive branch pro

nouncements concerning these small refinery provi

sions as well. We then describe the orders issued by

the EPA granting the three small refinery extension

petitions at the heart of this case.

LEGISLATIVE AND EXECUTIVE HISTORY

Congress changed the “Renewable Content of Gaso

line” when it amended the Clean Air Act through the

Energy Policy Act of 2005 (“Energy Policy Act”), Pub.

L. No. 109-58, 119 Stat. 594. The Energy Policy Act

directed the EPA to promulgate regulations to ensure

that gasoline sold or introduced into commerce in the

United States included rising amounts of renewable

fuel, going from four billion gallons in 2006 to seven

and a half billion gallons in 2012. Id.

§§ 1501(o)(2)(A)-(B). Renewable fuel targets for 2013

and beyond were to be determined later. Id.

§ 1501(o)(2)(B)(ii). The statute also created a “Credit

Program” under which fuel refiners, blenders, or im

porters could buy or sell compliance credits. Id.

§ 1501(o)(5). The Energy Policy Act contained a

“Temporary Exemption” until calendar year 2011 for

small refineries, defined as those “for which the aver

age aggregate daily crude oil throughput for a calen

dar year (as determined by dividing the aggregate

throughput for the calendar year by the number of

days in the calendar year) does not exceed 75,000

barrels.” Id. §§ 1501(o)(l)(D), 1501(o)(9)(A)(i). The

statute instructed the EPA to extend this exemption

for at least two years for any small refinery identified

in an upcoming study by the Department of Energy

(“DOE”) as suffering “disproportionate economic impact

required

comply[.]”

Id.

§§ 1501 (o) (9) (A) (ii) (I)—(II).

Congressional reports on the proposals that became

the Energy Policy Act foreshadowed these provisions.

A House report stated that H.R. 1640 would increase

the volume of renewable fuels from 3.1 billion gallons

in 2005 to 5.0 billion gallons in 2012, and “would al

low refineries, blenders, and importers to accumulate

and trade credits[.]” H.R. Rep. No. 109-215, pt. 1, at

221, 270 (2005). A Senate report stated that a “major

provision” of S. 10 would increase the volume of re

newable fuels from four billion gallons in 2006 to

eight billion gallons in 2012, with provisions relating

to “participation by small refiners” and “a fuel pro

ducer credit and trading program.” S. Rep. No. 10978, at 2, 18—19 (2005). The reports from both cham

bers discussed the overall policy objectives of the leg

islation. See id. at 1, 6 (“The widening gap between

supply and demand, accompanied by reliance on for

eign sources to close that gap, has created profound

concerns in the Congress over the nation’s energy se

curity. ... Coupled with those concerns is the recogni

tion that meeting demand must be accomplished in

an environmentally sound manner.”); H.R. Rep. No.

109-215, pt. 1, at 169 (“Energy security is critical in a

world of growing demand and regional political insta

bility. Dependence on any single source of energy, es

pecially from a foreign country, leaves America vul

nerable to price shocks and supply shortages.”).

President George W. Bush signed the Energy Policy

Act into law. He stated that the bill “will strengthen

our economy, and it will improve our environment,

and it’s going to make this country more secure.” Re

marks on Signing the Energy Policy Act of 2005 in

Albuquerque, New Mexico, 41 Weekly Comp. Pres.

Doc. 1262 (Aug. 8, 2005), reprinted in 2005

U.S.C.C.A.N. S17, S19. The President observed that

“[t]he bill also will lead to a greater diversity of fuels

for cars and trucks. The bill includes tax incentives

for producers of ethanol and biodiesel. The bill in

cludes a flexible, cost-effective renewable fuel stand

ard that will double the amount of ethanol and bio

diesel in our fuel supply over the next 7 years.” Id. at

1264—65, S22. The President added that “[ujsing eth

anol and biodiesel will leave our air cleaner. And eve-

ry time we use a home-grown fuel, particularly these,

we’re going to be helping our farmers and, at the

same time, be less dependent on foreign sources of

energy.” Id. at 1265, S22.

Congress expanded the provisions of the Energy

Policy Act relating to renewable fuels - and further

amended the Clean Air Act - through the Energy In

dependence and Security Act of 2007 (“Energy Inde

pendence and Security Act”), Pub. L. No. 110-140,

121 Stat. 1492. Those changes and others are now re

flected in section 7545(o) of Title 42. The current ver

sion of the statute increases renewable fuel obliga

tions in at least four categories: (1) renewable fuel,

defined as “fuel that is produced from renewable bio

mass and that is used to replace or reduce the quanti

ty of fossil fuel present in a transportation fuel,” is

targeted to rise from four billion gallons in 2006 to 36

billion gallons in 2022, 42 U.S.C. §§ 7545(o)(l)(J),

7545(o)(2)(B)(i)(I); (2) advanced biofuel, generally de

fined as renewable fuel “other than ethanol derived

from corn starch” with lifecycle greenhouse gas emis

sions at least 50 percent less than baseline,1 is tar

geted to rise from 0.6 billion gallons in 2006 to 21 bil

lion gallons in 2022, id.

§§ 7545(o)(l)(B),

7545(o)(2)(B)(i)(II); (3) cellulosic biofuel, defined as

renewable fuel “derived from any cellulose, hemicellulose, or lignin that is derived from renewable bio

mass” with lifecycle greenhouse gas emissions at

least 60 percent less than baseline, is targeted to rise

from 0.1 billion gallons in 2010 to 16 billion gallons in

2022, id. §§ 7545(o)(l)(E), 7545(o)(2)(B)(i)(III); and (4)

1 The statute defines “baseline lifecycle greenhouse gas emis

sions” as “the average lifecycle greenhouse gas emissions,” as

determined by the EPA, for “gasoline or diesel (whichever is be

ing replaced by the renewable fuel) sold or distributed as trans

portation fuel in 2005.” 42 U.S.C. § 7545(o)(l)(C).

biomass-based diesel (“BBD”), defined with certain

exceptions as renewable fuel that is “biodiesel” with

lifecycle greenhouse gas emissions at least 50 percent

less than baseline, was targeted to rise from 0.5 bil

lion gallons in 2009 to one billion gallons in 2012,

with volumes in later years to be set by the EPA in

consultation with the DOE. Id. §§ 7545(o)(l)(D),

7545(o)(2)(B)(i)(IV), 7545(o)(2)(B)(ii).

As amended, this portion of the Clean Air Act con

tains additional provisions on greenhouse gas emis

sions. For renewable fuel produced from new facilities

commencing production after December 19, 2007, the

law states that such fuel must achieve “at least a 20

percent reduction in lifecycle greenhouse gas emis

sions compared to baseline lifecycle greenhouse gas

emissions.” Id. § 7545(o)(2)(A)(i). Several emissions

are each identified as a “greenhouse gas,” and the

EPA is authorized to include, after notice and com

ment, “any other anthropogenically-emitted gas” de

termined “to contribute to global warming.” Id.

§ 7545(o)(l)(H). The term “lifecycle greenhouse gas

emissions,” in turn, is defined to include the aggre

gate quantity of emissions “related to the full fuel

lifecycle” where “the mass values for all greenhouse

gases are adjusted to account for their relative global

warming potential.” Id.

The statute directs the EPA to issue regulations to

ensure that the requirements of the law are met. Id.

§ 7545(o)(2)(A)(iii). The statute also directs the EPA,

after receiving an estimate of renewable fuel volumes

from the Energy Information Administration (“EIA”)

by October 31 of each year from 2005 through 2021,

to “determine and publish in the Federal Register” by

November 30 of each year the renewable fuel obliga

tions for the upcoming year. Id. §§ 7545(o)(3)(A)-(B).

The EPA expresses these obligations in terms of a

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“volume percentage” of transportation fuel sold or in

troduced into commerce in the United States. Id.

§§ 7545(o)(3)(B)(ii)(I)-(III). As discussed in more de

tail below, this process involves transforming aggre

gate volumes from the EIA into individual compliance

obligations. The EPA estimates what percentage of

the overall fuel supply each of the four renewable fuel

types specified in the statute should constitute, and

requires designated entities to replicate those per

centages on an individual basis. The law states that

yearly renewable fuel obligations are “applicable to

refineries, blenders, and importers, as appropriate [.]”

Id. § 7545(o)(3)(B)(ii).

The Energy Independence and Security Act contin

ued the credit program established by the Energy

Policy Act. The current version of the statute envi

sions the generation of credits for refined, blended, or

imported gasoline with greater-than-required quanti

ties of renewable fuel; for the use or transfer to an

other person of such credits; and for carrying forward

a renewable fuel deficit in certain circumstances (a

deficit that must be addressed “in the calendar year

following the year in which the renewable fuel deficit

is created”). Id. §§ 7545(o)(5)(A)-(B), (D). The law

states that a credit “shall be valid to show compliance

for the 12 months as of the date of generation.” Id.

§ 7545(g)(5)(C).

The Energy Independence and Security Act also

continued to make available a small refinery exemp

tion. The definition of “small refinery” still looks to

whether a refinery has average aggregate daily crude

oil throughput for a calendar year of 75,000 barrels or

less. 42 U.S.C. § 7545(o)(l)(K). The “Temporary ex

emption” was again written to apply to small refiner

ies until 2011, with a minimum extension of the ex

emption of two years for any such refinery deter-

11a

mined to be subject to a disproportionate economic

hardship by a DOE study to be conducted no later

than 2008. Id. §§ 7505(o)(9)(A)(i)-(ii). Small refineries

continue to be able to petition the EPA “at any time”

for

extension of this

exemption.

Id.

§ 7545(o)(9)(B)(i). The EPA is obligated to “make ad

justments” when determining the renewable fuel vol

ume percentages for an upcoming calendar year to

“account for the use of renewable fuel during the pre

vious calendar year by small refineries that are exempt[.]” Id. § 7545(o)(3)(C)(ii).

Several supporters of the Energy Independence and

Security Act in the Senate highlighted that the bill

substantially increased renewable fuel requirements

to promote energy independence and environmental

stewardship. In the words of one legislator:

To help reduce our dependence on imported oil,

and on oil consumption, this bill strengthens the

renewable fuels standard. It sets clear bench

marks for higher levels of production of biofuels

made from corn as well as other feedstocks, in

cluding soybean oil, switchgrass, and other

sources of energy that will be developed in the

future. With this bill we will shift some of our

energy reliance from the oilfields of the Middle

East to the corn fields of the Midwest. The bill

will ratchet up the schedule for the use of renew

able fuels in our cars and trucks from the level of

7.5 billion gallons by 2012, as passed in the 2005

Energy Bill, to 15 billion gallons by 2015 and 36

billion gallons by 2022. That represents a major

advance in our commitment to renewable, home

grown fuels that reduce emissions, mitigate

global warming, and improve farmer income.

153 Cong. Rec. S15421, S15429 (daily ed. Dec. 13,

2007) (statement of Sen. Durbin); see also id. at

12a

S15428 (statement of Sen. Johnson) (commenting

that “[t]his bipartisan bill builds on the success of the

Energy Policy Act of 2005, which authorized the first

nationwide renewable fuel standard, RFS,” that the

bill will ramp up “the amount of ethanol and cellulosic ethanol produced in this country so that by 2020

the United States will produce a minimum of 36 bil

lion gallons of renewable fuels,” and that “[w]e are

going to produce more fuel from renewable resources

and over the long-term decrease the amount of fossil

fuels we need to import from unstable regions of the

globe”); id. (statement of Sen. Cardin) (“H.R. 6 raises

the annual requirement for the amount of renewable

fuels used in cars and trucks to 36 billion gallons by

2022. H.R. 6 makes a historic commitment to develop

cellulosic ethanol by requiring that the United States

produce 21 billion gallons of advanced biofuels, like

cellulosic ethanol. Homegrown renewable fuels will

replace the equivalent of all the oil we import from

the Middle East today.”); 153 Cong. Rec. S15004,

S15008 (daily ed. Dec. 7, 2007) (statement of Sen.

Reid) (“This legislation makes an unprecedented

commitment to American-grown biofuels by increas

ing the renewable fuels standard to 36 billion gallons

by the year 2022, which will not just reduce our ad

diction to oil but create American jobs as well.”).

Certain members of the House of Representatives

likewise embraced the view that the substantial in

crease in renewable fuel utilization envisioned by the

Energy Independence and Security Act would pro

duce geopolitical and environmental benefits. 153

Cong. Rec. H16659, H16744-45 (daily ed. Dec. 18,

2007)

(statement

Rep.

Jackson-Lee)

(“[T]ransitioning from foreign oil to ethanol will pro

tect our environment from dangerous carbon and

greenhouse gas emissions. With its commitment to

13a

American biofuels, the legislation calls for a signifi

cant increase in the Renewable Fuels Standard. It

encourages the diversification of American energy

crops thus ensuring that biodiesel and cellulosic

sources are key components in America’s drive to be

come energy independent.”); id. at H16749 (state

ment of Rep. Udall) (“And it will increase the Renew

able Fuels Standard (RFS), which sets annual re

quirements for the amount of renewable fuels pro

duced and used in motor vehicles. The new RFS has

specific requirements for the use of biodiesel and cel

lulosic sources to ensure that these ethanol sources

also advance along with corn-based ethanol. Fur

thermore, the bill includes critical environmental

safeguards to ensure that the growth of homegrown

fuels helps to reduce carbon emissions.”); 153 Cong.

Rec. H14434, H14437 (daily ed. Dec. 6, 2007) (state

ment of Rep. Conyers) (“The legislation before us to

day also reduces our dependence on foreign oil. The

initiative includes a historic commitment to Ameri

can biofuels that will fuel our cars and trucks.”); id.

at H14439 (statement of Rep. Engel) (stating that the

legislation makes “an historic commitment to Ameri

can grown biofuels,” including an RFS “which will en

sure that a percentage of our nation’s fuel supply will

be provided by the domestic production of biofuels,”

providing a pathway “for reduced consumer fuel pric

es, increased energy security, and growth in our na

tion’s factories and farms”).

The substantial increase in renewable fuel targets

in the Energy Independence and Security Act also

prompted some objections to the legislation. See, e.g.,

153 Cong. Rec. E2589, E2589-90 (daily ed. Dec. 17,

2007) (statement of Rep. Herger) (“H.R. 6 seeks to

raise the current ethanol requirement by a factor of

five. Such a dramatic increase, combined with grow-

14a

ing demand for corn-fed meat products the world

over, will likely result in even higher food prices for

U.S. consumers.”); 153 Cong. Rec. S15421, S15422—23

(daily ed. Dec. 13, 2007) (statement of Sen. Inhofe)

(“The renewable fuels standard increase is going to

mandate an increase from 7 V2 to 15. That is of corn

ethanol. Then other bio increases are more than

that. ... [T]he livestock and the poultry people ... are

very distressed because of the increase in the cost of

feedstock. This is going to make it that much worse.

There are other problems with that too, with etha

nol’s effect on food prices: economic sustainability,

transportation infrastructure needs, the water usage

in that process.”); 153 Cong. Rec. H14434, 14441 (dai

ly ed. Dec. 6, 2007) (statement of Rep. Goodlatte)

(“This legislation would dramatically expand the Re

newable Fuels Standard (RFS) by increasing it to 36

billion gallons by 2022. This initiative is extremely

ambitious .... The RFS provisions create an unrealis

tic mandate for advanced biofuels technology that

doesn’t yet exist and creates hurdles for the develop

ment of second generation biofuels ....”).

The objections did not carry the day, and President

George W. Bush signed the Energy Independence and

Security Act into law. The President noted that when

he endorsed the Energy Policy Act two years earlier,

he understood “we needed to go even further.” State

ment by President George W. Bush Upon Signing

H.R. 6 (Dec. 19, 2007), reprinted in 2007

U.S.C.C.A.N. S25. He said the Energy Independence

and Security Act was “a major step toward reducing

our dependence on oil, confronting global climate

change, expanding the production of renewable fuels

and giving future generations of our country a nation

that is stronger, cleaner and more secure.” Id. He de

clared that “[t]he bill I sign today takes a significant

15a

step because it will require fuel producers to use at

least 36 billion gallons of biofuel in 2022. This is

nearly a fivefold increase over current levels. It will

help us diversify our energy supplies and reduce our

dependence on oil. It’s an important part of this legis

lation, and I thank the members of Congress for your

wisdom.” Id. at S26.

REGULATIONS AND POST-ENACTMENT

HISTORY

The EPA has issued a number of regulations to im

plement the renewable fuels program. Although the

statute refers to “refineries, blenders, and importers”

in connection with yearly percentage volume re

quirements, 42 U.S.C. § 7545(o)(3)(B)(ii), the EPA

confines “obligated parties” to refiners and importers.

40 C.F.R. § 80.1406(a)(1). The EPA has published the

equations used to calculate the annual renewable fuel

percentage standards, id. § 80.1405(c), along with the

formulas used to determine individual Renewable

Volume Obligations (“RVOs”) as to the four categories

of renewable fuels. Id. § 80.1407(a). In general, an

RVO for an obligated party is determined by applying

an annual percentage requirement to the amount of

non-renewable fuel produced or imported by that par

ty, and then adding any deficit carryover from the

previous year. Id.

The EPA administers credits using a device known

as a Renewable Identification Number (“RIN”). Id.

§ 80.1401. The regulations describe how RINs are

generated and assigned to batches of renewable fuel

by producers and importers. Id. § 80.1426. Each party

required to meet an RVO must demonstrate that it

has “retired for compliance purposes” a sufficient

number of RINs. Id. § 80.1427(a)(1). This involves

“separating” RINs by blending the renewable fuel

with petroleum-based fuel, id. § 80.1429, at which

16a

point the RINs may be “transferred any number of

times.” Id. § 80.1428(b)(3). RINs created by blending

or purchase typically may only be used to demon

strate compliance “for the calendar year in which

they were generated or the following calendar year.”

Id. § 80.1427(a)(6)(i). RINs used to show compliance

in one year usually “cannot be used to demonstrate

compliance in any other year.” Id. § 80.1427(a)(6)(ii).

A RIN is considered “expired” if not used during the

year of its creation or the year after, and “an expired

RIN will be considered an invalid RIN and cannot be

used for compliance purposes.” Id. § 80.1428(c).

The EPA has regulations pertaining to the small re

finery exemption as well. The regulations recognized

an exemption in 2010 for each entity that met “the

definition of small refinery” for “calendar year 2006.”

Id. § 80.1441(a)(1). The regulations stated that this

exemption “shall be extended” for at least two years if

a DOE study determined compliance would impose

disproportionate

economic

Id.

hardship.

§ 80.1441(e)(1). The regulations indicate that a small

refinery may petition for “an extension” of the exemp

tion “at any time,” and that such a petition must

“specify the factors that demonstrate a disproportion

ate economic hardship;” provide a detailed discussion

regarding “the hardship the refinery would face in

producing” compliant transportation fuel; and identi

fy “the date the refiner anticipates that compliance

with the requirements can reasonably be achieved[.]”

Id. § 80.1441(e)(2)(i). In 2014, the EPA amended the

regulations to change the definition of a small refin

ery (the “2014 Small Refinery Rule”):

In order to qualify for an extension of its small

refinery exemption, a refinery must meet the def

inition of “small refinery” in § 80.1401 for the

most recent full calendar year prior to seeking an

17a

extension and must be projected to meet the def

inition of “small refinery” in § 80.1401 for the

year or years for which an exemption is sought.

Failure to meet the definition of small refinery

for any calendar year for which an exemption

was granted would invalidate the exemption for

that calendar year.

Id. § 80.1441(e)(2)(iii).

At least since 2010, see id. § 80.1405(a), the EPA

has published lengthy documents setting yearly re

newable fuel standards and explaining how the pro

gram works. These documents acknowledge that the

program originated with the Energy Policy Act and

was modified by the Energy Independence and Secu

rity Act. E.g., Renewable Fuel Standard Program:

Standards for 2018 and Biomass-Based Diesel Vol

ume for 2019 (“EPA 2018 Standards”), 82 Fed. Reg.

58,486, 58,487 (Dec. 12, 2017). They also acknowledge

that the stated goals of the Energy Independence and

Security Act included moving the country toward

“greater energy independence and security [and] to

increase the production of clean renewable fuels.” Id.

(brackets in original). “The fundamental objective of

the RFS provisions under the CAA is clear: To in

crease the use of renewable fuels in the U.S. trans

portation system every year through at least 2022 in

order to reduce greenhouse gases (GHGs) and in

crease energy security.” Renewable Fuel Standard

Program: Standards for 2014, 2015 and 2016 and Bi

omass-Based Diesel Volume for 2017 (“EPA 20142016 Standards”), 80 Fed. Reg. 77,420, 77,421 (Dec.

14, 2015).

The EPA in recent years has announced volume re

quirements that are “lower than the statutory tar

gets,” but the agency contends these targets “never

theless will ensure these renewable fuels will contin-

18a

ue to play a critical role as a complement to our petro

leum-based fuels.” EPA 2018 Standards, 82 Fed. Reg.

at 58,487. Starting no later than 2015, for instance,

the EPA indicated that “challenges have made the

volume targets established by Congress for 2014,

2015, and 2016 beyond reach.” EPA 2014-2016

Standards, 80 Fed. Reg. at 77,422. The EPA thus de

cided to apply “the tools Congress provided to make

adjustments to the statutory volume targets in recog

nition of the constraints that exist today,”2 while at

the same time retaining standards sufficient to “drive

growth in renewable fuels, particularly advanced bio

fuels which achieve the lowest lifecycle GHG emis

sions.” Id. at 77,423; see also Renewable Fuel Stand

ard Program: Standards for 2017 and Biomass-Based

Diesel Volume for 2018, 81 Fed. Reg. 89,746, 89,747

(Dec. 12, 2016) (“The standards we are setting are de

signed to achieve the Congressional intent of increas

ing renewable fuel use over time in order to reduce

lifecycle GHG emissions of transportation fuels and

increase energy security, while at the same time ac

counting for real-world challenges that have slowed

progress toward these goals.”).

The EPA’s stated aim in harmonizing real-world

constraints with aggressive statutory renewable fuel

targets is to maintain the RFS program “as a market

forcing policy.” EPA 2014-2016 Standards, 80 Fed.

2 The statute contains several qualifications and waiver provi

sions. See, e.g., 42 U.S.C. § 7545(o)(2)(B)(ii) (describing factors to

be analyzed when setting renewable fuel volumes); id.

§ 7545(o)(4) (identifying circumstances where greenhouse gas

reduction percentages may be adjusted); id. §§ 7545(o)(7)(A)-(C),

(F) (allowing waivers based on severe harm to the economy or

environment, or on inadequate domestic supply); id.

§§ 7545(o)(7)(D)—(E) (setting forth conditions under which vol

umes of cellulosic biofuel and biomass-based diesel must or may

be reduced).

19a

Reg. at 77,423. In the EPA’s words, “[t]he objective of

the program is to introduce increasing volumes of re

newable fuels, with a focus on cellulosic and other

advanced renewable fuels, into the marketplace.

Congress made the decision that this is an appropri

ate policy objective, and put in place a program to

achieve that policy goal.” Id.-, see also id. (“The fact

that Congress chose to mandate increasing and sub

stantial amounts of renewable fuel clearly signals

that it intended the RFS program to create incentives

to increase renewable fuel supplies and overcome

constraints in the market.”). The EPA has observed

that (1) “Congress set targets that envisioned growth

at a pace that far exceeded historical growth and pri

oritized that growth as occurring principally in ad

vanced biofuels;” and (2) “[i]t is apparent, therefore,

that Congress intended changes to the extent and

pace of growth of renewable fuel use that would be

unlikely to occur absent the new program.” Id. at

77,432.

The EPA has also reviewed how overall targets are

translated into individual compliance requirements

for obligated parties. According to the EPA:

Under the RFS program, EPA is required to de

termine and publish annual percentage stand

ards for each compliance year. The percentage

standards are calculated to ensure use in trans

portation fuel of the national “applicable vol

umes” of the four types of biofuels (cellulosic bio

fuel, BBD, advanced biofuel, and total renewable

fuel) that are set forth in the statute or estab

lished by EPA in accordance with the Act’s re

quirements. The percentage standards are used

by obligated parties (generally, producers and

importers of gasoline and diesel fuel) to calculate

their individual compliance obligations. Each of

20a

the four percentage standards is applied to the

volume of non-renewable gasoline and diesel that

each obligated party produces or imports during

the specified calendar year to determine their

individual volume obligations with respect to the

four renewable fuel types. The individual volume

obligations determine the number of Renewable

Identification Numbers (RINs) of each renewable

fuel type that each obligated party must acquire

and retire to demonstrate compliance.

EPA 2018 Standards, 82 Fed. Reg. at 58,488. The

EPA maintains that “[t]he percentage standards are

set so that if every obligated party meets the percent

ages by acquiring and retiring the appropriate num

ber of RINs, then the amount of renewable fuel, cellulosic biofuel, BBD, and advanced biofuel used will

meet the applicable volume requirements on a na

tionwide basis.” Id. at 58,522.

As to small refineries, the EPA’s standard-setting

documents confirm that “Congress provided a tempo

rary exemption” which could be extended beyond

2010 “based either on the results of a required DOE

study, or based on an EPA determination of ‘dispro

portionate economic hardship’ on a case-by-case basis

in response to small refinery petitions.” EPA 2018

Standards, 82 Fed. Reg. at 58,523; see also Regula

tion of Fuels and Fuel Additives: 2013 Renewable

Fuel Standards (“EPA 2013 Standards”), 78 Fed. Reg.

49,794, 49,821 (Aug. 15, 2013) (“Congress provided

two ways that small refineries can receive a tempo

rary extension of the exemption beyond 2010.”). As

stated by the EPA, Congress “spoke directly to the

relief that EPA may provide for small refineries,” and

“limited that relief to a blanket exemption through

December 31, 2010, with additional extensions if the

criteria specified by Congress are met.” Regulation of

21a

Fuels and Fuel Additives: Changes to Renewable

Fuel Standard Program, 75 Fed. Reg. 14,670, 14,736

(Mar. 26, 2010).

The DOE issued a small refinery study in 2009. The

study “did not find that small refineries would face a

disproportionate economic hardship under the RFS

program.” Regulation of Fuels and Fuel Additives:

2012 Renewable Fuel Standards (“EPA 2012 Stand

ards”), 77 Fed. Reg. 1,320, 1,339 (Jan. 9, 2012) (foot

note omitted). The EPA understood that the conclu

sions of the 2009 DOE study “were based in part on

the expected robust availability of RINs and EPA’s

ability to grant relief on a case-by-case basis.” Id. at

1,339-40. The EPA explained that as a result of the

2009 study, “beginning in 2011 small refiners and

small refineries were required to participate in the

RFS program as obligated parties,” and “there was no

small refiner/refinery volume adjustment to the 2011

standard as there was for the 2010 standard.” Id. at

1,340.

A report from the Senate Committee on Appropria

tions criticized the DOE’s 2009 study. The report

stated that “[t]he Committee understands the study

contained inadequate small refinery input, did not

assess the economic condition of the small refining

sector, take into account regional factors or accurate

ly project RFS compliance costs.” S. Rep. No. 111-45,

at 109 (2009). The Committee generally directed the

DOE to “reopen and reassess the Small Refineries

Exemption Study,” and specifically directed the DOE

to “seek and invite comment from small refineries on

the RFS exemption hardship question, assess RFS

compliance impacts on small refinery utilization rates

and profitability, evaluate the financial health and

ability of small refineries to meet RFS requirements,

study small refinery impacts and regional dynamics

22a

by [Petroleum Administration for Defense District,

or] PADD, and reassess the accuracy of small refinery

compliance costs through the purchase of renewable

fuel credits.” Id. (brackets added). A House confer

ence report added that “[t]he conferees support the

study requested by the Senate on RFS and expect the

Department to undertake the requested economic re

view.” H.R. Rep. No. 111-278, at 126 (2009).

The DOE issued a revised small refinery study in

2011. The EPA in 2012 wrote that “DOE recently re

evaluated the impacts of the RFS program on small

entities and concluded that 21 small refineries would

suffer a disproportionate hardship if required to par

ticipate in the program. As a result, these refineries

will be exempt from being obligated parties for a min

imum of two additional years, 2011 and 2012.” EPA

2012 Standards, 77 Fed. Reg. at 49,821 (footnotes

omitted). The EPA currently says on its website that

“[f|or 2011 and 2012, 24 small refineries were granted

an exemption” under 42 U.S.C. § 7545(o)(9)(A)(ii). See

RFS Small Refinery Exemptions, https://www.epa.gov/ '

fuels-registration-reporting-and-compliancehelp/rfssmall-refinery-exemptions (“Small Refinery Exemp

tions, EPA Website,” last visited January 17, 2020).

The EPA cites the 2019 data from this website with

approval in its appellate brief. EPA Respondent’s Br.

at 12 n.l.

As directed, one of the steps the DOE took to revisit

the issue of disproportionate economic hardship was

to survey small refineries. Small Refinery Exemption

Study: An Investigation into Disproportionate Eco

nomic Hardship (“2011 DOE Study”), U.S. Depart

ment of Energy (Mar. 2011, redacted), Administrative

Record volume 1 (“REC1”) at 483, 489-90. With those

survey results in hand, the DOE concluded that

“[d]isproportionate economic hardship must encom-

23a

pass two broad components: a high cost of compliance

relative to the industry average, and an effect suffi

cient to cause a significant impairment of the refinery

operations.” Id. at 495. The DOE created scoring ma

trixes to reflect these two categories. Id. at 495, 52328. The first matrix contains scoring for “Dispropor

tionate Structural Impact Metrics” (with categories

for access to capital/credit, other business lines be

sides refining and marketing, local market ac

ceptance of renewables, percentage of diesel produc

tion, and exceptional state regulations) and “Dispro

portionate Economic Impact Metrics” (with categories

for relative refining margin measure, renewable fuel

blending as a percentage of production, operation in a

niche market, and RINs net revenue or cost). Id. at

525-27. The second matrix contains scoring for “Via

bility Metrics” (with categories for compliance costs

eliminating efficiency gains, individual special

events, and compliance costs being likely to lead to a

shutdown). Id. at 528; see also Addendum to the

Small Refinery Exemption Study: An Investigation

into Disproportionate Economic Hardship, U.S. De

partment of Energy (May 2014), REC1 at 583-85 (ex

plaining scoring changes with respect to the viability

matrix).

In late 2015, Congress provided an explanatory

statement on the 2016 Consolidated Appropriations

Act concerning the DOE’s scoring system. Noting that

the DOE’s 2011 study set forth “two broad compo

nents” for disproportionate economic hardship — “a

high cost of compliance relative to the industry aver

age disproportionate impacts” and “an effect suffi

cient to cause significant impairment of the refinery

operations viability” - the explanatory statement

provided that if the Secretary of Energy “finds that

either of these two components exists, the Secretary

24a

is directed to recommend to the EPA Administrator a

50 percent waiver of RFS requirements for the peti

tioner.” 161 Cong. Rec. H9693, H10105 (daily ed. Dec.

17, 2015). The explanatory statement further provid

ed that a small refinery with profits sufficient to cov

er RFS compliance costs might nonetheless be subject

to a disproportionate economic hardship:

[T]he dramatic rise in RIN prices has amplified

RFS compliance and competitive disparities, es

pecially where unique regional factors exist, in

cluding high diesel demand, no export access,

and limited biodiesel infrastructure and produc

tion. In response to recent petitions, the Secre

tary determined that the RFS program would

impose a disproportionate economic and struc

tural impact on several small refineries. Despite

this determination, the Secretary did not rec

ommend, and EPA did not provide, any RFS re

lief because it determined the refineries were

profitable enough to afford the cost of RFS com

pliance without substantially impacting their vi

ability. The Secretary is reminded that the RFS

program may impose a disproportionate econom

ic hardship on a small refinery even if the refin

ery makes enough profit to cover the cost of com

plying with the program. Small refinery profita

bility does not justify a disproportionate regula

tory burden where Congress has explicitly given

EPA authority, in consultation with the Secre

tary, to reduce or eliminate this burden.

Id.

A 2016 Senate report on appropriations for various

agencies contained similar observations. The Senate

report commented that “[i]n response to several re

cent petitions,” the EPA had “determined that com

pliance with the RFS would have a disproportionate

25a

economic impact on a small refinery, but denied

hardship relief because the small refinery remained

profitable notwithstanding the disproportionate eco

nomic impact.” S. Rep. No. 114-281, at 70 (2016). The

report indicated that “[t]his is inconsistent with con

gressional intent because the statute does not con

template that a small refinery would only be able to

obtain an exemption by showing that the RFS pro

gram threatens its viability. Congress explicitly au

thorized the Agency to grant small refinery hardship

relief to ensure that small refineries remain both

competitive and profitable.” Id.; see also id. (intimat

ing that “small entities cannot remain competitive

and profitable if they face disproportionate structural

or economic metrics such as limitations on access to

capital, lack of other business fines, disproportionate

production of diesel fuel, or other site specific fac

tors”). In a separate explanatory statement on an

agreement regarding appropriations amendments,

the House echoed that “[t]he agreement includes the

directive contained in Senate Report 114-281 related

to small refinery relief.” 163 Cong. Rec. H3327,

H3884 (daily ed. May 3, 2017) (statement of Rep.

Frelinghuysen).

Beginning in 2016, the EPA began granting more

petitions to extend the small refinery exemption. Ta

ble 2 on the EPA’s website indicates that while the

agency granted 23 of 41 extension petitions from

2013-2015 (reflecting an approval rate of approxi

mately 56%, as two petitions were declared ineligible

or withdrawn), the agency granted 85 of 94 extension

petitions from 2016-2018 (reflecting an approval rate

of approximately 90%, as five petitions were declared

ineligible or withdrawn):

26a

Compli- Number Number Number Number Number Number

ance

Year Petitions Grants Denials Petitions Petitions Pending

Received Issued Issued Declared With- Petitions

Ineligible drawn

2013

2014

2015

2016

2017

2018

2019

Small Refinery Exemptions, EPA Website (data as of

January 16, 2020); see also Renewable Fuel Standard

Program: Standards for 2019 and Biomass-Based

Diesel Volume for 2020 (“EPA 2019 Standards”), 83

Fed. Reg. 63,704, 63,707 (Dec. 11, 2018) (stating that

in response to comments suggesting increased disclo

sure of “data related to the RIN market,” the EPA

“made additional information available through our

public website,” including “the number of small refin

ery exemption petitions received, granted, and denied

by year”). The EPA granted 19 of 20 small refinery

extension petitions in 2016, 35 of 36 eligible and

maintained petitions in 2017, and 31 of 37 eligible

and maintained petitions in 2018. Small Refinery Ex

emptions, EPA Website.

As the number of granted petitions began to rise, so

too did the amount of fuel exempted from the amend

ed Clean Air Act’s renewable fuels targets. Table 1 on

the EPA’s website reveals not only that exempted

volumes of gasoline and diesel went from approxi

mately 2 billion gallons in 2013 to a peak of 17 billion

gallons in 2017 (with more than 13 billion exempted

gallons in 2018), but also that exempted RVOs went

from approximately 190 million RINs in 2013 to an

27a

apex of 1.8 billion RINs in 2017 (with more than 1.4

billion exempted RINs in 2018):

Compliance

Year

2013

2014

2015

2016

2017

2018

2019

Estimated Volumes of

Estimated Renewable

Gasoline and Diesel Volume Obligations (RVO)

Exempted

(million gallons)

(million RINs)

1,980

2,300

3,070

7,840

17,050

13,420

190

210

290

790

1,820

1,430

Id. (rounded to the nearest 10 million gallons or

RINs).

If any small refinery petitions to extend the tempo

rary exemption are granted after the announcement

of the applicable percentage standards for a given

year, the EPA does not modify the standards to ac

count for the exemptions. The EPA has followed this

policy at least from 2011 through 2018, reasoning

that “the Act is best interpreted to require issuance of

a single annual standard in November that is appli

cable in the following calendar year, thereby provid

ing advance notice and certainty to obligated parties

regarding their regulatory requirements.” Regulation

of Fuels and Fuel Additives: 2011 Renewable Fuel

Standards (“EPA 2011 Standards”), 75 Fed. Reg.

76,790, 76,804 (Dec. 9, 2010). The EPA says that

“[p]eriodic revisions to the standards to reflect waiv

ers issued to small refineries or refiners would be in

consistent with the statutory text, and would intro

duce an undesirable level of uncertainty for obligated

parties.” Id.; see also EPA 2018 Standards, 82 Fed.

Reg. at 58,523 (“EPA is maintaining its approach that

any exemptions for 2018 that are granted after the

final rule is released will not be reflected in the per-

28a

centage standards that apply to all gasoline and die

sel produced or imported in 2018.”)- The EPA recog

nizes that “any exemption for a small refinery will

result in a proportionally higher percentage standard

for remaining obligated parties,” and that “this will

affect the degree to which individual obligated parties

can acquire sufficient RINs for compliance through

blending ethanol into gasoline that they produce.”

EPA 2011 Standards, 75 Fed. Reg. at 76,805.

THE EXEMPTION EXTENSION PETITIONS

The EPA is required to consider DOE studies and

other economic factors when assessing small refinery

petitions. 42 U.S.C. § 7545(o)(9)(B)(ii). Operating

within this framework, the EPA received and evalu

ated the three extension petitions at issue in this

case. HollyFrontier Cheyenne Refining LLC (“Chey

enne”) submitted a petition in March 2017. Adminis

trative Record volume 2 (“REC2”) at 589-610. Hol

lyFrontier Woods Cross Refining LLC (“Woods

Cross”) submitted a petition in September 2017. Id.

at 648-63. Wynnewood Refining Company, LLC

(“Wynnewood”) submitted a petition in January 2018.

Id. at 686-731. The petitions for these three refiner

ies (“the Refineries”) are discussed in more detail be

low.

As a prelude, we describe how information identi

fied by the parties as confidential has been handled.

As noted infra in § II, the Refineries requested confi

dentiality when they submitted their extension peti

tions to the EPA. The parties continued on appeal to

seek confidential treatment of certain business in

formation. In a series of orders, this court provision

ally granted the parties’ request for a protective or

der, along with the parties’ requests to file particular

briefs and record materials under seal. In each of

those orders, the court explained that it retained dis-

29a

cretion to revisit the issues. At the court’s prompting,

the Refineries later indicated whether they objected

to the disclosure of several specific facts.

The court is honoring most - but not all — of the Re

fineries’ confidentiality objections. The court is also

maintaining the confidential status of any previouslysealed document. The court has kept in mind 5 U.S.C.

§ 552(b)(4), which contains a disclosure exemption for

privileged or confidential “trade secrets and commer

cial or financial information,” as well as 40 C.F.R.

§ 2.208, which states that “business information is

entitled to confidential treatment” if various re

quirements are met. Any instance in this opinion in

which the court parts company with the parties on

confidentiality is based both on these standards and

on the “strong presumption” under the common law

“in favor of public access.” United States v. Pickard,

733 F.3d 1297, 1302 (10th Cir. 2013) (citation omit

ted); see also Colony Ins. Co. v. Burke, 698 F.3d 1222,

1241 (10th Cir. 2012) (commenting that this pre

sumption “may be overcome where countervailing in

terests heavily outweigh the public interests in ac

cess”) (citation and internal quotation marks omit

ted).

CHEYENNE

According to the petition submitted on behalf of

Cheyenne in 2017, the refinery employs approximate

ly 300 people in Wyoming. REC2 at 590. Because it

was identified in the DOE’s 2011 study as being sub

ject to disproportionate economic hardship, Cheyenne

was granted an extension of the small refinery ex

emption through 2012. Id. Cheyenne did not apply for

or did not receive an extension of the exemption in

2013 and 2014. Id. at 638 n.13. Cheyenne applied to

extend the exemption in 2015, but the EPA denied

the petition. Id. at 590, 638 n.13. On appeal, this

30a

court granted an unopposed motion by the EPA to va

cate the denial and remand the matter to the agency

for further proceedings consistent with Sinclair Wyo.

Refining Co. v. EPA, 874 F.3d 1159 (10th Cir. 2017).

The parties have not discussed the subsequent pro

ceedings, but we assume for purposes of this opinion

that Cheyenne’s 2015 petition was granted on re

mand. See infra § II (summarizing post-SmcZair

events in the context of redressability).

Cheyenne contended in its 2017 petition that re

newable fuel compliance in 2016 would impose dis

proportionate economic hardship. Cheyenne empha

sized that it focused on diesel (normally blended with

less renewable fuel than gasoline) and otherwise had

limited blending abilities, in contrast to some “larger,

more competitive refineries.” REC2 at 592-93. Chey

enne argued that “[t]he cost of RIN purchases and the

poor economics of biodiesel blending threaten the vi

ability of the Cheyenne refinery[.]” Id. at 593. Chey

enne described the expenses it believed would arise

out of RFS compliance in 2016, consisting of blending

costs and RIN purchase costs. Id. at 593, 596. Chey

enne averred that it had no other business lines be

sides refining and marketing, that it had an operat

ing loss and an asset impairment in 2016, that it had

relatively thin margins over the past three years, and

that it did not operate in a niche market. Id. at 59597.

The DOE applied its scoring criteria and recom

mended denying Cheyenne’s request for an extension

of the small refinery exemption in 2016. Id. at 62728. The DOE gave Cheyenne “a score of 0.9 in the

structural and economic metric and a score of 0.0 in

the viability metric.” Id. at 628. The DOE concluded

that “the HollyFrontier Cheyenne refinery had posi

tive refining margins and RFS compliance would not

31a

appear, based on the data we analyzed, to threaten

the refinery’s economic viability.” Id.

The EPA declined to follow the DOE’s recommenda

tion and granted Cheyenne’s petition. Id. at 614, 62946. The EPA acknowledged that “it has been found

that a refinery does not experience disproportionate

economic hardship simply because it may need to

purchase a significant percentage of its RINs for

compliance from other parties, even though RIN pric

es have increased since the DOE study, because the

RIN prices lead to higher sales prices obtained for the

refineries’ blendstock, resulting in no net cost of com

pliance for the refinery.” Id. at 634 n.5 (emphasis in

original). The EPA also acknowledged that the DOE

did not find “disproportionate economic and structur

al impacts and the Cheyenne Refinery.” Id. at 645.

After summarizing Cheyenne’s financial history,

however, id. at 637-42, the EPA determined that the

refinery “would suffer a disproportionate economic

hardship if it had to comply with the RFS obligations

for 2016 and should be granted full relief.” Id. at 646.

In granting the petition, the EPA reasoned that “for

a refinery like the Cheyenne Refinery, its dispropor

tionate economic hardship may be the result of other

economic factors, including a difficult year for the in

dustry as a whole.” Id. at 645. The EPA found that

Cheyenne’s financial performance showed the refin

ery would disproportionately suffer “from compliance

with RFS obligations.” Id. The EPA discussed Chey

enne’s financial performance in 2016, Cheyenne’s

cash flow from 2014-2016, Cheyenne’s net refining

margin in 2016, and Cheyenne’s three-year average

net refining margin. Id. at 640, 645.

In the process of adjudicating Cheyenne’s petition,

the EPA acknowledged it was generally altering its

methodology. The agency stated “[i]n prior decisions,

32a

EPA considered that a small refinery could not show

disproportionate economic hardship without showing

an effect on ‘viability,’ but we are changing our ap

proach.” Id. at 636 n.10. The agency explained that

“[wjhile a showing of a significant impairment of re

finery operations may help establish disproportionate

economic hardship, compliance with RFS obligations

may impose a disproportionate economic hardship

when it is disproportionately difficult for a refinery to

comply with its RFS obligations - even if the refin

ery’s operations are not significantly impaired.” Id. at

636 n.10, 646 n.41.

WOODS CROSS

The 2017 petition submitted on behalf of Woods

Cross stated that the refinery has 285 employees and

70 full-time contractors in Utah. Id. at 648-49. The

petition asserted neither that Woods Cross was iden

tified as being subject to disproportionate economic

hardship in the DOE’s 2011 study, nor that Woods

Cross previously sought or received other extensions

of the small refinery exemption. Id. at 648—53. Woods

Cross declared that compliance with RFS in 2016

would impose disproportionate economic hardship be

cause the refinery has no other lines of business and

cannot blend the full amount of required renewable

fuel, because “there is still some resistance to the ac

ceptance of biodiesel” in Woods Cross’s market, and

because buying RINs “adds a heavy financial burden

to the refinery and renders it economically inefficient

relative to its competition.” Id. at 649-52. Woods

Cross described what it believed its compliance costs

for 2016 would be, tallying up RIN purchases and

blending costs. Id. at 652.

The DOE recommended granting Woods Cross’s pe

tition in part. Id. at 678-79. The DOE gave Woods

Cross “a score of 1.9 in the structural and economic

33a

metric and a score of 0.0 in the viability metric.” Id.

at 679. The DOE found that Woods Cross “did not

have negative refining margins while making signifi

cant refinery investments, thus RFS compliance

would not appear, based on the data we analyzed, to

threaten the refinery’s economic viability.” Id. Be

cause Woods Cross scored above 1.0 in the first met

ric, the DOE suggested that EPA consider a “50 per

cent exemption from the 2016 RFS[.]” Id.

The EPA granted Woods Cross’s petition and

awarded a full extension of the small refinery exemp

tion, rather than a partial extension of the exemp

tion. Id. at 665, 680-85. The EPA noted this court

held in Sinclair that the agency’s previous viability

requirement for “disproportionate economic hardship”

was “at odds with Congress’s statutory command.” Id.

at 681-82 (citation omitted); see also Sinclair, 887

F.3d at 988 (“[T]he EPA has exceeded its statutory

authority under the CAA in interpreting the hardship

exemption to require a threat to a refinery’s survival

as an ongoing operation.”). The agency recounted,

however, that “prior to this ruling, EPA had already

changed its approach for the 2016 small refinery peti

tions issued in May 2017.” REC2 at 682. The agency

clarified that it had determined disproportionate eco

nomic hardship “can exist on the basis of adverse

structural conditions alone. A difficult year for the

refining industry as a whole may exacerbate econom

ic problems for small refineries that face dispropor

tionate impacts.” Id.; see also id. (stating that the

“industry-wide downward trend” of lower net refining

margins “can result in tangible effects on small refin

eries with adverse structural conditions”).

The EPA concluded that in combination with other

factors, unfavorable structural conditions for Woods

Cross warranted “100% relief.” Id. at 682, 684. The

34a

EPA drew attention to limitations on the refinery’s

blending capabilities, and addressed Woods Cross’s

net refining margins and financial performance in

2015 and 2016. Id. at 684. This analysis led the EPA

to decide that “the Woods Cross Refinery will experi

ence [disproportionate economic hardship] that can

be relieved in whole or in part by removing its RFS

obligations for 2016.” Id. (brackets added).

WYNNEWOOD

The petition submitted on behalf of Wynnewood in

2018 described that refinery as having more than 300

employees and more than 250 full-time contractors in

Oklahoma. Id. at 688. The petition stated that

Wynnewood received an extension of the blanket ex

emption in 2011 and 2012, but “has not received

hardship relief since 2012.” Id. at 687. Wynnewood

described what it believed RFS compliance costs

would be, and compared those costs to the refinery’s

other operating expenses. Id. at 688-89, 694. In light

of the refinery’s financial performance in 2017,

Wynnewood claimed the RFS compliance costs would

impose disproportionate economic hardship. Id. at

689.

The Wynnewood petition addressed all of the fac

tors in the DOE’s scoring matrixes. As to structural

and economic factors, Wynnewood presented argu

ments concerning (1) access to capital or credit; (2)

other lines of business; (3) the market for the rele

vant blended renewable fuels; (4) the refinery’s pro

portion of diesel fuel; (5) the refinery’s net refining

margins in 2015 and 2016, along with a three-year

average margin; (6) the presence or absence of a

niche market; and (7) the possibility of “passing

through” RIN expenses to customers. Id. at 689-96.

As to viability, Wynnewood again referenced the met

ric of average net refining margin, and gave the EPA

35a

an assessment of competitiveness and profitability.

Id. at 696.

Similar to Woods Cross, the DOE recommended “a

50 percent exemption from the 2017 RFS” for

Wynnewood. Id. at 736. The DOE scored Wynnewood

on structural, economic, and viability metrics. Id. The

DOE stated that “the refinery has positive refining

margins and RFS compliance would not appear,

based on the data we analyzed, to threaten the refin

ery’s economic viability.” Id. Nonetheless, based on

structural and economic factors, the DOE suggested

that the EPA grant a partial extension of the small

refinery exemption. Id.

The EPA granted Wynnewood’s petition and fully

extended the exemption for 2017. Id. at 733, 737-41.

The EPA explained that “[i]n previous year decisions,

DOE and EPA considered that [disproportionate eco

nomic hardship] exists only when a refinery experi

ences both disproportionate impacts and viability im

pairment.” Id. at 738 (brackets added). The EPA con

tinued that in response to concerns that the threshold

for establishing disproportionate economic hardship

was “too stringent,” Congress clarified that such

hardship “can exist if DOE finds that a small refinery

is experiencing either disproportionate impacts or vi

ability impairment.” Id. (emphasis in original). Once

again, the EPA stated that hardship “can exist on the

basis of adverse structural conditions alone,” and a

difficult year “may exacerbate economic problems for

small refineries that face disproportionate impacts[.]”

Id. at 738-39.

The EPA thus decided that unfavorable structural

conditions and other factors justified “100% relief’ for

Wynnewood. Id. at 739-41. The EPA focused on

Wynnewood’s financial performance in 2016 and the

first three quarters of 2017, coupled with Wynne-

36a

wood’s net refining margins. Id. at 741. The EPA con

cluded by stating that Wynnewood would experience

disproportionate economic hardship which “can be

relieved in whole or in part by removing its RFS obli

gations for 2017.” Id.

II.

THE BIOFUELS COALITION’S STANDING

TO SUE

Although the EPA does not challenge the Biofuels

Coalition’s standing to sue, the Refineries do. Ad

dressing those arguments requires an understanding

of the four organizations that make up the Biofuels

Coalition. The first organization is the Renewable

Fuels Association (“RFA”), a trade association for the

ethanol industry. Geoff Cooper Declaration (“Cooper

Decl.”) U 2. RFA members include “companies that

manufacture and market ethanol fuel to blenders and

marketers of gasoline, as well as companies that pro

vide goods and services (such as process technologies

and raw feedstocks) to ethanol producers.” Id.

Through its President and Chief Executive Officer,

RFA avers that its members “operate facilities in 24

states, from California to New York, and are respon

sible for the production of almost a third of the etha

nol sold in the United States.” Id. Uf 2-3. The second

organization is the American Coalition for Ethanol

(“ACE”), another ethanol advocacy group. Brian Jen

nings Declaration (“Jennings Decl.”) If 2. It also

counts as members both producers and other compa

nies that support the industry. Id. 1 2 & Ex. A.

Through its Chief Executive Officer, the organization

attests that “[m]any of ACE’s members” produce eth

anol, and “[o]ther members grow crops, primarily

corn, that are used in the production of renewable

fuels.” Id. 1HI 7-8.

The other two Biofuels Coalition members are simi

lar, but even more focused on feedstocks. The third

37a

organization is the National Farmers Union (“NFU”),

an advocacy group for “family farmers, ranchers and

rural communities[.]” Roger Johnson Declaration

(“Johnson Decl.”) If 2. According to the group’s Presi

dent, “NFU’s members include family farmers and

growers of crops such as corn and soybeans[.]” Id.

1ft 2-4. NFU further declares that “[c]orn is used to

produce most of the non-advanced portion of renewa

ble fuels (conventional renewable fuel), and soybeans

are used to produce biomass-based diesel.” Id. t 5.

The fourth organization is the National Corn Growers

Association (“NCGA”). NCGA’s Chief Executive Of

ficer declares that the association “represents more

than 40,000 dues-paying corn farmers nationwide

and more than 300,000 corn growers who contribute

to NCGA through the corn programs (known as

‘checkoff programs) in their states.” Jon Doggett Dec

laration (“Doggett Decl.”) If If 1-3, 5. NCGA reiterates

that “[c]orn is used as a feedstock to make ethanol[.]”

Id. f 6.

The Constitution specifies that the “judicial Power

of the United States” extends only to “Cases” and

“Controversies.” U.S. Const, art. Ill, §§ 1-2. Standing

to sue “is a doctrine rooted in the traditional under

standing” of those terms. Spokeo, Inc. u. Robins,---U.S.

136 S. Ct. 1540, 1547, 194 L.Ed.2d 635

(2016). The doctrine “requires federal courts to satisfy

themselves that the plaintiff has alleged such a per

sonal stake in the outcome of the controversy so as to

warrant his invocation of federal-court jurisdiction.”

Summers v. Earth Island Inst., 555 U.S. 488, 493,

129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (citation and in

ternal quotation marks omitted, emphasis in origi

nal). By limiting the category of litigants empowered

to maintain a federal lawsuit, the law of Article III

standing “serves to prevent the judicial process from

38a

being used to usurp the powers of the political

branches, and confines the federal courts to a proper

ly judicial role.” Spokeo, 136 S. Ct. at 1547 (citations

and internal quotation marks omitted).

The “irreducible constitutional minimum” of stand

ing is threefold. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992). “The plaintiff must have (1) suffered an injury

in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Spokeo,

136 S. Ct. at 1547. An injury in fact must be not only

“concrete and particularized,” but also “actual or im

minent,” as opposed to “conjectural” or “hypothetical.”

Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citations and

internal quotation marks omitted). “Although the

‘traceability’ of a plaintiffs harm to the defendant’s

actions need not rise to the level of proximate causa

tion, Article III does require proof of a substantial

likelihood that the defendant’s conduct caused the

plaintiffs injury in fact.” Habecker v. Town of Estes

Park, Colo., 518 F.3d 1217, 1225 (10th Cir. 2008) (ci

tation and internal quotation marks omitted). And

“[t]o demonstrate redressability, a party must show

that a favorable court judgment is likely to relieve the

party’s injury.” WildEarth Guardians v. Pub. Seru.

Comm’n of Colo., 690 F.3d 1174, 1182 (10th Cir.

2012) (citation omitted).

“The party invoking federal jurisdiction bears the

burden of establishing” standing. Lujan, 504 U.S. at

561, 112 S.Ct. 2130. Each element “must be support

ed in the same way as any other matter on which the

plaintiff bears the burden of proof, i.e., with the man

ner and degree of evidence required at the successive

stages of the litigation.” Id. On a direct appeal from

an administrative decision, the complainant “must

39a

produce evidence on each element of standing as if it

were moving for summary judgment in district court.”

N. Laramie Range Alliance v. FERC, 733 F.3d 1030,

1034 (10th Cir. 2013). If a counterparty contests

these facts, the complainant will not enjoy “the bene

fit of any inference” and must discharge its burden

under a preponderance-of-the-evidence standard. Id.

(citation omitted). The evidence must show that the

complainant “had standing when it filed its petition

for review.” Id.

An association seeking to invoke federal court ju

risdiction must make a further showing. The associa

tion must demonstrate that “its members would oth

erwise have standing to sue in their own right;” “the

interests it seeks to protect are germane to the organ

ization’s purpose;” and “neither the claim asserted

nor the relief requested requires the participation of

individual members in the lawsuit.” Hunt v. Wash.

State Apple Advert. Comm’n, 432 U.S. 333, 343, 97

S.Ct. 2434, 53 L.Ed.2d 383 (1977). Because the Refin

eries in this case do not challenge the latter two com

ponents, we focus on the core elements of standing,

keeping in mind that “the gist of the question” is

whether members of the Biofuels Coalition “have

such a personal stake in the outcome of the contro

versy as to assure that concrete adverseness which

sharpens the presentation of issues upon which the

court so largely depends for illumination.” Massachu

setts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167

L.Ed.2d 248 (2007) (citation and internal quotation

marks omitted). We also recognize that “when the

plaintiff is not himself the object of the government

action or inaction he challenges, standing is not pre

cluded, but it is ordinarily substantially more difficult

to establish.” Summers, 555 U.S. at 494, 129 S.Ct.

1142 (citation and internal quotation marks omitted).

40a

The Biofuels Coalition principally relies on an affi

davit and a report from RFA’s chief economist to

prove standing. Scott Richman Declaration (“Richman Decl.”) If If 1—5. The economist provides his esti

mation, in gallons, of total renewable fuel obligations

for Cheyenne and Woods Cross in 2016 and Wynnewood in 2017. Id. If 10. He then identifies, as a per

centage, what the extensions granted to the Refiner

ies represent in terms of all exempted volumes. Scott

Richman Report (“Richman Report”) at 3, 12-13, 17.

He observes that the EPA reinstated the RINs Chey

enne and Woods Cross had previously retired for

compliance purposes in 2016, and he appears to as

sume the agency simply relieved Wynnewood of its

RIN retirement obligation in 2017. Richman Decl.

f f 12, 23. He then opines that the Refineries can “use

these reinstated RINs in many ways,” including sell

ing the RINs to other obligated parties or using the

RINs to satisfy RVOs for other refineries owned by

the same corporate parent. Id. If If 13, 23. He main

tains that the Refineries’ sale or use of these RINs to

establish compliance inflicts “economic harm” on

members of the Biofuels Coalition, because obligated

parties use such RINs “instead of blending ethanol or

obtaining RINs representing additional blending

from other parties.” Id. Iff 9, 23.

RFA’s economist bases this conclusion on an indus

try-wide analysis of the effects of the 48 small refin

ery exemption extensions granted overall for 2016

and 2017, as well as the effects of the three exemp

tion extensions at issue in this case. Id. ff 5, 18, 21.

He observes that there are approximately 2.59 billion

carryover RINs available to meet 2019 renewable fuel

volume requirements, and he attributes most of these

carryover RINs to the 48 extensions. Id. f 15 & n.6

(citing an earlier publication of the EPA 2019 Stand-

41a

ards, 83 Fed. Reg. at 63,709); Richman Report at 9 &

n.10 (same). This, according to the economist, has

“contributed to reduced demand and lower per-gallon

prices for ethanol. These factors have resulted in low

er revenues received by RFA’s ethanol producing

members.” Richman Decl. If 5; Richman Report at 1.

In particular, he states that extensions in the aggre

gate have caused the ethanol “blend rate,” or etha

nol’s average inclusion in the nation’s gasoline sup

ply, to fall by 162 million gallons from February 2018

to August 2018. Richman Decl. 1f 16; Richman Report

at 1, 9-11, 24—25. Valuing ethanol at $1.45 per gallon

during this time period, he asserts that the drop in

the blend rate resulted in an estimated $233 million

revenue reduction for the industry and an estimated

$68 million revenue reduction for RFA members.

Richman Decl. If 17; Richman Report at 16—17. For

this same time period, he calculates estimated reve

nue reductions for the industry overall and for RFA

members due to the Refineries’ extensions. Richman

Decl. If 18; Richman Report at 17.

RFA’s economist claims these numbers are con

servative. He reasons that the foregoing numbers un

derstate the economic injury to the Biofuels Coalition

because “the reduction in demand has forced RFA

members and other producers to sell ethanol at lower

prices than that which they would receive” had small

refinery extensions not been granted. Richman Decl.

1 19; Richman Report at 17-19. He attests that etha

nol prices would have been $0.08 per gallon higher in

February 2018 absent these extensions, and $0.34 per

gallon higher by June 2018 “given the continued ef

fect on consumption^]” Richman Decl. 1f 20; Richman

Report at 2-3, 19. “Without adjusting for any possible

increase in production due to increased consumption

that would have occurred” in the absence of the 48

42a

small refinery extensions, he argues, from February

to August 2018 the annualized impact on industry

revenues was $4 billion and the annualized impact on

RFA members’ revenues was $1.2 billion. Richman

Report at 19-20. He closes by attributing a substan

tial amount of “unrealized value” across the indus

try - and a specific amount of “unrealized value” for

RFA members - to the Refineries’ exemptions. Richman Decl. If 21; Richman Report at 3, 20-21.

The Refineries do not meaningfully dispute that

this evidence is sufficient to establish an injury in

fact, the first prong of the test for Article III standing.

“For standing purposes, a loss of even a small amount

of money is ordinarily an ‘injury.’ ” Czyzewski v. Jevic

Holding Corp.

U.S.

, 137 S. Ct. 973, 983,

197 L.Ed.2d 398 (2017); see also Carpenters Indus.

Council v. Zinke, 854 F.3d 1, 5 (D.C. Cir. 2017) (“Eco

nomic harm to a business clearly constitutes an inju

ry-in-fact. And the amount is irrelevant. A dollar of

economic harm is still an injury-in-fact for standing

purposes.”). The financial losses claimed by the Bio

fuels Coalition fit this description. The alleged losses

are concrete in that they are quantified in dollars.

The alleged losses are particularized in that they af

fect each Biofuels Coalition member who produces

ethanol or ethanol feedstocks.

Certain Biofuels Coalition members also have cog

nizable injuries as competitors. Probable economic

injury resulting from governmental actions which “al

ter competitive conditions” can constitute an injury in

fact. Clinton v. City of N.Y., 524 U.S. 417, 432-33, 118

S.Ct. 2091, 141 L.Ed.2d 393 (1998) (citation omitted).

Put another way, “economic actors suffer constitu

tional injury in fact when agencies lift regulatory re

strictions on their competitors or otherwise allow in

creased competition.” Nat’l Biodiesel Bd. v. EPA, 843

43a

F.3d 1010, 1015 (D.C. Cir. 2016) (citation and inter

nal quotation marks omitted); see also Citizens for

Responsibility & Ethics in Washington v. Trump, 939

F.3d 131, 143 (2d Cir. 2019) (explaining that competi

tor standing “relies on economic logic to conclude that

a plaintiff will likely suffer an injury-in-fact when the

[defendant] acts in a way that increases competition

or aids the plaintiffs competitors”) (citation omitted,

brackets in original).

The record reflects at least some degree of competi

tion between the Refineries and certain members of

the Biofuels Coalition. The former produce or market

conventional fuels, and the latter produce or market

alternative fuels. One of the goals of the RFS pro

gram is to replace crude oil with biofuel, see supra § I,

and alternatives like ethanol displace the traditional

components of petroleum-based fuel. See, e.g., Decla

ration of Scott Mundt ]j 5 (“RFS requires refiners to

use specified volumes of renewable fuel, such as eth

anol, to reduce the quantity of petroleum-based

transportation fuel.”); 2011 DOE Study, REC1 at 504

(“Ethanol serves to displace other blending compo

nents of gasoline.”); HollyFrontier Corporation 2015

Form 10-K at 27 (Feb. 24, 2016), REC1 at 41 (stating

on behalf of the parent entity for Cheyenne and

Woods Cross that “we compete with other industries

that provide alternative means to satisfy the energy

and fuel requirements of our industrial, commercial

and individual consumers,” and “[t]he more success

ful these alternatives become” the greater the impact

on “pricing and demand for our products and profita

bility”). The EPA’s decision to extend the small refin

ery exemption relieves the Refineries from having to

pay for blending or RINs associated with renewable

fuels, including the types of fuel generated by Biofu-

44a

els Coalition members. See supra § I.C.1-3. There is

injury in fact.

The Refineries dispute the second Article III stand

ing requirement, namely, whether the losses claimed

by the Biofuels Coalition are “fairly traceable” to the

EPA’s decisions to grant the three petitions at issue.

Cheyenne, Woods Cross, and Wynne wood each argue

that there is no evidence showing any individual ex

tension of the small refinery exemption harmed any

individual Biofuels Coalition member. For example,

Cheyenne and Woods Cross insist that their exempt

ed RINs constitute only a tiny fraction of the total

RFS obligation. The Refineries also contend that

RFA’s economist did not analyze whether any one ex

tension resulted in lower ethanol sales or prices for

any one producer, and that RFA’s economist at best

has identified correlation between (rather than prov

ing causation for) ethanol demand and carryover

RINs.

These arguments are colorable, but we conclude

that the “fairly traceable” requirement is satisfied. In

Massachusetts, a coalition of States, local govern

ments, and private organizations alleged that the

EPA abdicated its responsibility to regulate certain

greenhouse emissions from new motor vehicles under

the Clean Air Act. 549 U.S. at 504, 127 S.Ct. 1438.

Although “[t]he harms associated with climate

change” were “serious and well recognized,” id. at

521, 127 S.Ct. 1438, the EPA challenged the coali

tion’s standing to sue by asserting that any decision

not to regulate emissions from new vehicles contrib

uted “insignificantly to petitioners’ injuries,” and reg

ulating said emissions would be a drop in the world

wide bucket and immaterial to mitigating “global

climate change.” Id. at 521, 523—24, 127 S.Ct. 1438.

45a

The Supreme Court did not accept this line of reason

ing:

The EPA overstates its case. Its argument rests

on the erroneous assumption that a small incre

mental step, because it is incremental, can never

be attacked in a federal judicial forum. Yet ac

cepting that premise would doom most challeng

es to regulatory action. Agencies, like legisla

tures, do not generally resolve massive problems

in one fell regulatory swoop. They instead whit

tle away at them over time, refining their pre

ferred approach as circumstances change and as

they develop a more nuanced understanding of

how best to proceed.

Id. at 524, 127 S.Ct. 1438 (citation omitted). Massa

chusetts thus held “[wjhile it may be true that regu

lating motor-vehicle emissions will not by itself re

verse global warming, it by no means follows that we

lack jurisdiction to decide whether EPA has a duty to

take steps to slow or reduce it.” Id. at 525, 127 S.Ct.

1438 (emphasis in original); see also Consumer Data

Indus. Ass’n v. King, 678 F.3d 898, 902 (10th Cir.

2012) (“[T]he Supreme Court concluded that Massa

chusetts had standing to challenge the EPA’s refusal

to regulate greenhouse-gas emissions despite the at

tenuated causal chain linking agency non-action to

potential environmental damage.”).

The causal chain linking the EPA’s grants of the

Refineries’ extension petitions to potential economic

damage to the Biofuels Coalition is no more attenuat

ed. How much of an economic loss each Biofuels Coa

lition member may have sustained as a result of the

EPA’s decision to grant a given refinery petition is

certainly debatable, and the amount of any such loss

may be impossible to precisely quantify. But the evi

dence presented is sufficient to show for standing

46a

purposes that Biofuels Coalition members who pro

duce ethanol or feedstocks suffered some injury —

even if each individual member’s loss is small — which

is fairly traceable to increasing the number of unre

tired RINs. Paired with economic principles suggest

ing that lessened demand for a product will reduce

the price, RFA’s affidavit in this case is enough, in

part because the record otherwise does not establish

that all of the injury to Biofuels Coalition members is

“th[e] result [of] the independent action of some third

party not before the court.” Lujan, 504 U.S. at 56061, 112 S.Ct. 2130 (citation omitted, brackets in orig

inal).

We recognize that markets are often complicated,

and nothing in today’s opinion should be construed as

holding that the analysis of RFA’s economist is unim

peachable. When evaluating standing, however, “[t]he

judicial task of determining causation can be impre

cise” because courts must make a “predictive judg

ment” about a “notoriously difficult issue” based on a

pre-trial record. Carpenters, 854 F.3d at 6; see also id.

(stating that “[c]ommon sense and basic economics”

may be relevant to assessing causation in this con

text). It is “well settled” for these purposes that “peti

tioners need not prove a cause-and-effect relationship

with absolute certainty; substantial likelihood of the

alleged causality meets the test.” Nat. Res. Def.

Council v. NHTSA, 894 F.3d 95, 104 (2d Cir. 2018)

(citation omitted); see also Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 134 n.6, 134

S.Ct. 1377, 188 L.Ed.2d 392 (2014) (reiterating that

“[p]roximate causation is not a requirement of Article

III standing”). “This is true even in cases where the

injury hinges on the reactions of third parties” to an

agency’s conduct. Nat. Res. Def. Council, 894 F.3d at

104.

47a

Additionally, more than just general competitive

harm is fairly traceable to the extensions of the three

small refinery exemptions at issue. Those extensions

not only remove a large compliance burden from the

Refineries, but also specifically relate to products

(ethanol and ethanol feedstocks) that Biofuels Coali

tion members sold and continue to sell. Several courts

have found causation for purposes of standing when

government action results in concrete and particular

ized changes to a competitive relationship. See, e.g.,

Nat’l Biodiesel Bd., 843 F.3d at 1015-16 (holding,

based on the facts in a competitor standing case, that

it was “self-evident” the complainants established “in

jury, causation, and redressability”); Int’l Bhd. of

Teamsters v. U.S. Dep’t of Transp., 724 F.3d 206,

211-12 (D.C. Cir. 2013) (holding, based on the facts

in a competitor standing case, that “[t]he causation

and redressability requirements of Article III are eas

ily satisfied”).

The Refineries challenge redressability as well, the

third component of the test for Article III standing.

Pointing out that the RINs reinstated by the EPA

were only valid in 2016 and 2017, Cheyenne and

Woods Cross argue that vacating the EPA’s grants of

those petitions will not benefit the Biofuels Coalition

now. Wynnewood joins in by arguing that it was un

necessary to “reinstate” any 2017 RINs at all for that

refinery. The Refineries also contend that there is no

statutory basis for the EPA to force them to retire dif

ferent RINs in excess of RFS obligations for future

years, and even if there were, it would be speculative

to conclude this small set of RINs would meaningfully

affect ethanol prices or otherwise change the finan

cial fortunes of individual Biofuels Coalition mem

bers. This is especially true, the Refineries assert,

given the Biofuels Coalition’s allegation that there

48a

are already billions of cheap carryover RINs in the

market.

Significantly, however, we have also taken cues

from Massachusetts on redressability. We stated in

Consumer Data that “[t]he Supreme Court has reject

ed interpretations of the rule that demand complete

redressability, stressing that a plaintiff need show

only that a favorable decision would redress ‘an inju

ry,’ not ‘every injury.’ ” 678 F.3d at 902 (emphasis in

original, quoting Larson v. Valente, 456 U.S. 228, 243

n.15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982)). Referenc

ing Massachusetts, we found that “[rjedressability

was satisfied” because “the risk of harm would be re

duced to some extent if petitioners received the relief

they seek.” Id. (citation and internal quotation marks

omitted, emphasis in original). Even more pointedly,

we rejected the argument that a favorable decision

must redress at least one injury completely:

[T]he State cites no authority for this theory, and

neglects to account for Massachusetts v. EPA

where the Court adopted the contrary conclu

sion — standing is proper where a favorable deci

sion would relieve “some extent” of an injury. In

deed, if the law required that the requested relief

afford complete redress, the Supreme Court

would not have allowed Massachusetts to pro

ceed against the EPA, as there was no guarantee

a favorable decision would mitigate against fu

ture environmental damage, must less redress it

completely.

Id. at 905 (citation omitted, brackets added). We rec

ognized the same principle in Chamber of Commerce

of the U.S. v. Edmondson, 594 F.3d 742 (10th Cir.

2010), concluding that “the harms alleged by the

Chambers will likely be ‘reduced to some extent’ by

an injunction running against the Attorney General.”

49a

Id. at 757-58 (citations omitted); see also id. at 757

n.16 (“An opposite holding would contravene Su

preme Court precedent so as to require complete redressability.”).

We pause to address the Refineries’ point that a fa

vorable order will not affect the market or redress

any economic harm because all of the reinstated or

exempted RINs were for 2017 or earlier compliance

years. While it is true that a given RIN may be car

ried over only to the next compliance year, see, e.g.,

40 C.F.R. § 80.1427(6)(i), that RIN may have ongoing

effects as a result of the carryover process. A RIN

generated in year one but used in year two reduces

the amount of blending that must be done or the

number of RIN purchases that must be made in the

second year. This process then repeats itself year to

year. In year two, for instance, any excess blending

accomplished or excess RINs acquired may be carried

over for compliance purposes to year three. The EPA

appears to have implicitly acknowledged these ripple

effects by noting in its proposed standards for 2019

that “[w]hile EPA cannot predict how obligated par

ties will comply in 2018 or the amount of additional

small refinery hardship exemptions that may be

granted in the future, the 2016 and 2017 exemptions

have directly increased the number of carryover RINs

that will likely be available for compliance with the

2019 standards.” Renewable Fuel Standard Program:

Standards for 2019 and Biomass-Based Diesel Vol

ume for 2020, 83 Fed. Reg. 32,024, 32,030 (proposed

July 10, 2018).

Moreover, although we do not decide today the na

ture or scope of the EPA’s remedial powers, we con

clude that vacating or invalidating the extensions of

the Refineries’ exemptions is “likely” to lead to EPA

action addressing the contested 2016-2017 RINs,

50a

thus at least partially redressing the Biofuels Coali

tion’s alleged harms. In addition to authorizing civil

penalties, see 42 U.S.C. § 7545(d)(1), the amended

Clean Air Act conveys to federal courts the power to

award injunctive and “other appropriate” relief for

specified violations of the statute or accompanying

regulations. See id. § 7545(d)(2). The statute then di

rects the EPA to promulgate regulations to “ensure”

that gasoline sold “contains the applicable volume of

renewable fuel.” Id. § 7545(o)(2)(A)(i). Among other

things, those regulations prohibit creating or trans

ferring “a RIN that is invalid,” 40 C.F.R.

§ 80.1460(b)(2), failing to acquire sufficient RINs or

using invalid RINs “to meet the person’s RVOs,” id.

§ 80.1460(c)(1), and causing another person to com

mit these and other violations. Id. § 80.1460(d).

On more than one occasion, the EPA has requested

legal action seeking after-the-fact retirements of

RINs. Two examples are highlighted on the EPA’s

website. See Civil Enforcement of the Renewable Fuel

Standard Program, https://www.epa.gov/enforcement/

civil-enforcement-renewable-fuel-standard-program

(last visited January 17, 2020). In United States v.

NGL Crude Logistics, LLC, No. 2:16-cv-1038-LRR

(N.D. Iowa), a complaint filed in 2016 “at the request

of the Administrator” sought to require the defendant

to retire approximately 36 million invalid RINs from

2011 to “offset the harm caused by the violations.”

NGL Crude Logistics Docket No. 21 at 1, 9-13, 23.

The parties entered into a consent decree that ac

complished just that, with the defendant retiring the

RINs in 2018—2019. Id. Docket No. 247 at 1, 6—7. In

United States v. Chemoil Corp., No. 4:16-cv-05538PJH (N.D. Cal.), the complaint filed at the EPA’s re

quest sought to require the defendant to retire ap

proximately 73 million RINs to comply with RVOs

51a

from 2011-2013. Chemoil Corp. Docket No. 1 at 10,

14. That case was also resolved via a consent decree,

with the defendant retiring 65 million RINs in 20162017. Id. Docket No. 7 at 4, 10. The purpose of these

illustrations is not to comment on the legal merits of

the cases, but instead to demonstrate the likelihood

of the EPA taking further action to offset the effects

of any 2016-2017 refinery RINs that are vacated or

deemed invalid by court order.

Post-Sinclair events reinforce this conclusion. After

holding that an existential threat to a refinery’s ex

istence was not the sine qua non of “disproportionate

economic hardship,” this court vacated two agency

orders denying hardship relief and granted the EPA’s

request for a voluntary remand and vacatur with re

spect to a third. Producers of Renewables United for

Integrity Truth & Transparency v. EPA, 778 F. App’x

1, 2-3 (D.C. Cir. 2019). On remand, the EPA granted

extensions of these Wyoming refinery exemptions,

and ordered a form of prospective relief:

The three Wyoming refineries had by then

demonstrated compliance with the 2014 and

2015 standards by retiring RINs for those years,

and those RINs had since expired. The EPA thus

decided that, in order to provide the refineries

with “meaningful relief’ from their since-excused

compliance, it would “replac[e]” the retired, ex

pired RINs with an equal number of newly mint

ed 2018 RINs.

Id. at 3 (quotation marks and brackets in original). A

petitioner challenged the EPA’s RIN-replacement or

ders, and the D.C. Circuit transferred the case to this

court. Id. at 3-4. Again, we raise this matter not to

pre-judge the merits of Producers of Renewables, as

those merits will be evaluated by a different panel of

this court. We highlight the case solely to show a like-

52a

lihood that the EPA will not sit on its hands if prior

refinery RINs are invalidated.

The competitor standing doctrine likewise informs

redressability. The EPA’s decisions to lift renewable

fuel requirements by extending the small refinery ex

emption convey an advantage to the Refineries linked

to the principal economic activity of certain Biofuels

Coalition members (generating, marketing, and sell

ing ethanol). Courts invoking competitor standing ob

serve that redressability is “closely related to the

question of causation,” and when the complainants

are subjected to some form of ongoing harm, “it logi

cally follows that relief would redress their injury at least to some extent, which is all that Article III

requires.” Citizens for Responsibility & Ethics in

Washington, 939 F.3d at 147; see also United States v.

Students Challenging Regulatory Agency Procedures

(SCRAP), 412 U.S. 669, 689 n.14, 93 S.Ct. 2405, 37

L.Ed.2d 254 (1973) (declining to limit standing to

“those who have been ‘significantly’ affected by agen

cy action,” and noting that “an identifiable trifle is

enough for standing to fight out a question of princi

ple”) (citation omitted).

Because standing defines and limits the power of

the judicial branch, it does not exist for the conven

ience of the parties. Standing must be based on spe

cific facts satisfying all required legal elements, just

as our determination that the Biofuels Coalition has

standing is based on the facts presented here. Still,

the implications of the Refineries’ position cannot be

overlooked. This case is unusual because it involves

decisions to grant three small refinery extension peti

tions, as opposed to just one. There is evidence in the

record that these three Refineries collectively account

for a non-trivial amount of exempted renewable fuel.

This case also involves multiple third-party produc-

53a

ers, acting through the trade associations or advocacy

groups that constitute the Biofuels Coalition. There is

evidence that these producers collectively account for

a non-trivial amount of ethanol and ethanol feed

stocks. If these complainants lack a “fairly traceable”

and “redressable” injury vis-a-vis these Refineries, it

is hard to imagine ones that would. In other words, if

the Refineries are correct on the issue of standing,

then EPA decisions to reduce renewable fuel obliga

tions under the Clean Air Act by granting extensions

of the small refinery exemption may be effectively

unreview able.

This threat is heightened by the manner in which

extension petitions are granted. Small refineries un

derstandably do not want to publicize otherwise re

stricted financial information. So the refineries re

quest that their petitions be kept confidential. E.g.,

REC2 at 598, 653, 687; see also supra § I.C (surveying

some of the legal bases for confidentiality designa

tions). Given these confidentiality concerns, the EPA

normally does not publish decisions granting small

refinery petitions, in the Federal Register or any

where else. See Sinclair, 887 F.3d at 992 (“Nor do

third parties have access to the decisions, since the

EPA does not publicly release its decisions because

they contain confidential business information.”).

This makes it difficult for outsiders to determine

when petitions have been filed and granted. Members

of the Biofuels Coalition claim that they only found

out about the agency’s decisions in this matter

through Reuters articles and public company disclo

sure documents like Forms 10-K. Cooper Decl. If 12;

Jennings Decl. ]f 5; Johnson Deck f 8; Doggett Deck

f 8. Yet without participation by third parties, it is

difficult to see how EPA decisions granting small re

finery petitions will ever be subject to appellate re-

54a

view. A small refinery that receives an extension of

its renewable fuels exemption has no incentive to ap

peal. Nor does the EPA have any incentive to appeal

its own decision.

Excepting these EPA small refinery decisions from

judicial review aimed at ensuring statutory compli

ance would be troublesome. “Congress rarely intends

to prevent courts from enforcing its directives to fed

eral agencies.” Mach Mining, LLC v. EEOC, 575 U.S.

480, 135 S. Ct. 1645, 1651, 191 L.Ed.2d 607 (2015).

The Administrative Procedure Act (“APA”) “creates a

basic presumption of judicial review [for] one suffer

ing legal wrong because of agency action.” Weyerhae

user Co. v. U.S. Fish & Wildlife Serv.

U.S.

139 S. Ct. 361, 370, 202 L.Ed.2d 269 (2018) (citation

and internal quotation marks omitted, brackets in

original). The Supreme Court has long characterized

the presumption favoring judicial review as “strong,”

and it can be rebutted only upon a showing that

“Congress wanted an agency to police its own con

duct.” Mach Mining, 135 S. Ct. at 1651 (citation omit

ted). No such showing has been made here, as noth

ing in the amended Clean Air Act directly “precludes

review” of EPA decisions granting small refinery peti

tions, and “federal courts routinely assess” these

types of adjudications under APA provisions such as

5 U.S.C. § 706(2). Weyerhaeuser, 139 S. Ct. at 370,

371. Accepting the Refineries’ standing arguments

would largely negate this presumption and preclude

any judicial review of orders granting extensions of

the small refinery exemption.

III. OTHER JURISDICTIONAL ISSUES

The Refineries present several other challenges to

jurisdiction. In addition to contesting jurisdiction

based on the 2014 change in the EPA’s definition of

“small refinery,” see infra § IV.A.2, the Refineries

55a

separately contend that the Biofuels Coalition was

required to, but did not, file this action within 60

days of the issuance of the EPA orders granting the

Refineries’ hardship petitions. The Refineries main

tain as well that the Biofuels Coalition, notwith

standing its status as a non-party to agency proceed

ings on the Refineries’ hardship applications, was re

quired to present its arguments to the EPA before

seeking judicial review. The EPA contests jurisdiction

based on the 2014 Small Refinery Rule, but does not

join either of the Refineries’ other two jurisdictional

arguments.

TIMELINESS

The Clean Air Act generally requires challenges to

final agency actions to be filed “within sixty days

from the date notice of such promulgation, approval,

or action appears in the Federal Register[.]” 42 U.S.C.

§ 7607(b)(1). “The deadline in § 7607(b)(1) is jurisdic

tional.” Utah v. EPA, 765 F.3d 1257, 1258 (10th Cir.

2014). Because “Congress waived sovereign immunity

through § 7607(b)(1),” the 60-day deadline “serves a

jurisdictional function” by restricting this congres

sional waiver. Id. at 1260. The relevant EPA regula

tion states that “[ujnless the Administrator otherwise

explicitly provides in a particular promulgation, ap

proval, or action, the time and date of such promulga

tion, approval or action” for purposes of § 7607(b)(1)

“shall be at 1:00 p.m. eastern time (standard or day

light, as appropriate) on (a) for a Federal Register

document, the date when the document is published

in the Federal Register, or (b) for any other docu

ment, two weeks after it is signed.” 40 C.F.R. § 23.3.

The history of § 23.3 is instructive. The main rea

son the EPA proposed this provision and related pro

visions was “to bring greater fairness to so-called

‘races to the courthouse.’ ” 50 Fed. Reg. 7,268 (Feb.

56a

21, 1985). Litigants looked for what they perceived as

friendly courts regarding the interpretation of certain

statutes. They then sought “by various means to be

the first to be informed of an Agency action and then

to be the first to file a petition for review in one of the

[friendliest of the] twelve United States courts of ap

peals.” Id. (brackets added). The Clean Air Act, by

providing for “exclusive judicial review in the D.C.

Circuit of EPA’s nationally-applicable regulations,”

eliminated “a great many racing opportunities,” but

not all of them, and other statutes contained no pro

visions to reduce racing. Id. In promulgating the new

rules, the agency sought to “eliminate the worst

abuses associated with races to the courthouse under

those EPA-administered statutes that allow racing

and under which races are reasonably likely to oc

cur.” Id.

One commenter objected to the new rules on the

ground that “affected persons may have no notice of

the action” and be deprived of due process. Id. at

7,269. The EPA addressed that concern by noting

that “[m]ost potential litigants interested in actions

covered by the regulations will have actual notice of

non-Federal Register documents.” Id. As to litigants

with notice, the EPA observed that the rule “will have

the beneficial effect of establishing a fixed trigger for

commencing the judicial review process.” Id. Liti

gants without notice were not part of any race to the

courthouse, and thus were not addressed by the rule:

“The commenter’s concern - that someone entitled to

seek judicial review, and who has no notice of the ac

tion, will later be barred from obtaining review by a

preclusive judicial review provision — addresses a

matter not within the scope of this rulemaking. Any

such claim can be raised in judicial proceedings if it

arises in practice.” Id.

57a

The Refineries assert that the reference to “any

other document” in the text of § 23.3 trumps any pre

amble, but there is no conflict between the two. The

rule provides that agency actions reflected in the

Federal Register become final at 1:00 p.m. eastern

time on the date of publication, and agency actions

reflected in other documents become final two weeks

after publication. The rule is silent as to whether this

principle of finality applies to agency actions effected

by “other document[s]” when parties are without no

tice. It does not say parties without notice are, or are

not, subject to the rule. Instead, it leaves that issue to

be “raised in judicial proceedings if it arises in prac

tice.” 50 Fed. Reg. at 7,269.

Filling this silence by construing § 23.3 to foreclose

appeals by parties without notice would be irrational.

What possible purpose would be served by such an

interpretation, other than to immunize unpublished

agency actions from third party scrutiny? The agen

cy’s justification for promulgating the rule in the first

instance — setting a fixed trigger for commencing the

judicial review process - does not apply to parties

without notice who cannot participate in any race to

the courthouse. As a result, the Refineries’ proposed

interpretation of § 23.3 is not just inconsistent with

the strong presumption favoring judicial review of

agency action. See supra § II. It is also in tension with

the enduring principle that if a literal interpretation

would “lead to absurd results, or be contrary to the

evident meaning of the act taken as a whole, it should

be rejected.” Heydenfeldt u. Daney Gold & Silver Min

ing Co., 93 U.S. 634, 638, 23 L.Ed. 995 (1876).

We summarize our ruling as follows: The 60-day

deadline in 42 U.S.C. § 7607(b)(1) did not render the

Biofuels Coalition’s petition untimely. Because agen

cy orders granting the Refineries’ hardship petitions

58a

were not published in the Federal Register, the statu

tory clock never started.3 The EPA regulation imple

menting the statute states that documents other than

those published in the Federal Register become final

two weeks after they are signed, but the text and the

preamble demonstrate that the regulation does not

address parties without notice of such “other docu

ments.” The Refineries’ attempt to invoke the statu

tory cut-off is misguided.

RIPENESS

The Refineries’ other argument is couched in terms

of ripeness. Although federal courts have a “virtually

unflagging” obligation to hear and decide cases with

in their jurisdiction, Lexmark, 572 U.S. at 126, 134

S.Ct. 1377 (citations omitted), the ripeness doctrine is

intended “to prevent the courts, through avoidance of

premature adjudication, from entangling themselves

in abstract disagreements over administrative poli

cies, and also to protect the agencies from judicial in

terference until an administrative decision has been

formalized and its effects felt in a concrete way by the

challenging parties.” Nat’l Park Hosp. Ass’n v. Dep’t

of Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155

L.Ed.2d 1017 (2003) (citation omitted). “Determining

whether administrative action is ripe for judicial re

view requires us to evaluate (1) the fitness of the is

sues for judicial decision and (2) the hardship to the

3 The statute also permits a party seeking review “based sole

ly on grounds arising after such sixtieth day” to submit a peti

tion “within sixty days after such grounds arise.” 42 U.S.C.

§ 7607(b)(1). Here, however, there is no way to hold that the Bio

fuels Coalition’s petition is based exclusively on grounds arising

60 days after any publication in the Federal Register (thus trig

gering the “after-arising” 60-day filing period), because no publi

cation ever took place.

59a

parties of withholding court consideration.” Id. at

808, 123 S.Ct. 2026.

The “fitness for judicial decision” criterion favors

review. Relevant considerations include whether “the

issue is a purely legal one,” whether “the agency deci

sion in dispute was final,” whether the court would

“benefit from further factual development of the is

sues presented,” and whether “judicial intervention

would inappropriately interfere with further adminis

trative action[.]” Wyoming v. Zinke, 871 F.3d 1133,

1141-42 & n.2 (10th Cir. 2017) (citations and internal

quotation marks omitted). No one disputes that the

refinery orders constitute final agency actions. The

core statutory interpretation issues are predominant

ly legal. Combined with the public record, the exist

ing agency record is sufficient to decide the fact-based

issues that have been presented on appeal. The EPA’s

position is crystallized in three written orders grant

ing the refinery petitions. There is no indication that

the EPA intends to reconsider those orders, so judi

cial review will not interfere with any ongoing or con

templated administrative activity.

The “hardship to the parties” criterion favors re

view as well. We have afforded substantial weight to

the hardship element when complainants face “signif

icant costs, financial or otherwise,” if their disputes

are deemed unripe for adjudication, and when the re

spondent has “taken some concrete action” that im

pairs or threatens to impair the petitioner’s interests.

Utah v. U.S. Dep’t of Interior, 535 F.3d 1184, 1197-98

(10th Cir. 2008). All of those factors are present here.

The EPA has taken concrete action by granting the

Refineries’ extension petitions. Exempting the Refin

eries from RFS compliance impairs the interests of

Biofuels Coalition members by increasing competition

and reducing the value of products those members

60a

market and sell. The alleged harm suffered by Biofu

els Coalition constituents will worsen if judicial re

view is delayed or denied.

The Refineries cite authorities discussing the bene

fits of allowing an administrative agency to consider

the precise question raised, adding that a litigant

waives any argument not so presented. The cases in

dicate that parties “generally must structure their

participation so that it alerts the agency to the par

ties’ position and contentions, in order to allow the

agency to give the issue meaningful consideration.”

Forest Guardians u. U.S. Forest Serv., 495 F.3d 1162,

1170 (10th Cir. 2007) (citations and internal quota

tion marks omitted). The cases also explain that the

waiver rule ensures “simple fairness” to the agency

and other affected litigants, while providing a court

“with a record to evaluate complex regulatory is

sues!)]” ExxonMobil Oil Corp. v. FERC, 487 F.3d 945,

962 (D.C. Cir. 2007) (citation omitted).

This general presentment requirement does not

cause the case at hand to be unripe. Biofuels Coali

tion members received no notice of and no invitation

to participate in the proceedings culminating in the

refinery extension orders. Biofuels Coalition members

were thus precluded from raising administrative ar

guments in opposition to the refinery extensions, and

the EPA cannot be forced to conduct a brand new

hearing. This court is powerless to require adminis

trative procedures in addition to those set forth in the

APA, Vt. Yankee Nuclear Power Corp. v. Nat. Res.

Def. Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197,

55 L.Ed.2d 460 (1978), which beyond its plain text

imposes only “a general ‘procedural’ requirement of

sorts by mandating that an agency take whatever

steps it needs to provide an explanation that will en

able the court to evaluate the agency’s rationale at

61a

the time of decision.” Pension Benefit Guar. Corp. v.

LTV Corp., 496 U.S. 633, 654, 110 S.Ct. 2668, 110

L.Ed.2d 579 (1990). Even if the refinery orders and

the existing administrative record in theory could be

more tailored to each argument giving rise to this ap

peal, they in practice provide adequate facts and a

sufficient explanation of the EPA’s reasoning to per

mit judicial review.

IV. THE BIOFUELS COALITION’S STATUTORY

CONSTRUCTION CHALLENGES

The Biofuels Coalition contends that the EPA ex

ceeded its statutory authority in at least three re

spects by granting the Refineries’ petitions. First, the

Biofuels Coalition asserts that the EPA failed to hon

or the statutory requirement of an “extension,” con

fusing an extension of an exemption with a plainvanilla exemption. Second, the Biofuels Coalition ar

gues that the EPA robbed the phrase “disproportion

ate economic hardship” of its intended meaning by

focusing on structural factors and eschewing a com

parative analysis to determine which hardships are

disproportionate. Third, the Biofuels Coalition says

the EPA neglected to require that any disproportion

ate economic hardship was caused by compliance

with RFS obligations.

These arguments rise or fall with the provisions in

42 U.S.C. § 7545(o)(9). For reference, those provisions

state in relevant part:

(9) Small refineries

(A) Temporary exemption

(i) In general

The requirements of paragraph (2) shall not

apply to small refineries until calendar year

2011.

62a

(ii) Extension of exemption

(I) Study by Secretary of Energy

Not later than December 31, 2008, the Sec

retary of Energy shall conduct for the Admin

istrator a study to determine whether compli

ance with the requirements of paragraph (2)

would impose a disproportionate economic

hardship on small refineries.

(II) Extension of exemption

In the case of a small refinery that the Sec

retary of Energy determines under subclause

(I) would be subject to a disproportionate eco

nomic hardship if required to comply with

paragraph (2), the Administrator shall extend

the exemption under clause (i) for the small

refinery for a period of not less than 2 addi

tional years.

(B) Petitions based on disproportionate

economic hardship

(i) Extension of exemption

A small refinery may at any time petition the

Administrator for an extension of the exemp

tion under subparagraph (A) for the reason of

disproportionate economic hardship.

(ii) Evaluation of petitions

In evaluating a petition under clause (i), the

Administrator, in consultation with the Secre

tary of Energy, shall consider the findings of

the study under subparagraph (A)(ii) and other

economic factors.

(iii) Deadline for action on petitions

63a

The Administrator shall act on any petition

submitted by a small refinery for a hardship

exemption not later than 90 days after the date

of receipt of the petition.

42 U.S.C. §§ 7545(o)(9)(A)-(B) (emphasis in original).

Plain and unambiguous statutory language must be

enforced “according to its terms,” because we assume

“the ordinary meaning of that language accurately

expresses the legislative purpose.” Hardt v. Reliance

Standard Life Ins. Co., 560 U.S. 242, 251, 130 S.Ct.

2149, 176 L.Ed.2d 998 (2010) (citation and internal

quotation marks omitted). To decide whether the lan

guage of a statute is plain, “we must read the words

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

overall statutory scheme.” King v. Burwell,

U.S.-----, 135 S. Ct. 2480, 2489, 192 L.Ed.2d 483 (2015)

(citation and internal quotation marks omitted). A

statute generally should be interpreted “so that effect

is given to all its provisions, so that no part will be

inoperative or superfluous, void or insignificant.” Ru

bin v. Islamic Republic of Iran, — U.S.------ , 138 S.

L.Ed.2d

(2018) (citation and

Ct. 816, 824,

internal quotation marks omitted). The goal is to

view the law “as a symmetrical and coherent regula

tory scheme” and to “fit, if possible, all parts into an

harmonious whole.” FDA u. Brown & Williamson To

bacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146

L.Ed.2d 121 (2000) (citations and internal quotation

marks omitted); see also Graham Cty. Soil & Water

Conservation Dist. v. United States ex rel. Wilson, 559

U.S. 280, 290, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010)

(indicating that a court’s duty is “to construe statutes,

not isolated provisions”) (citation and internal quota

tion marks omitted).

64a

EXTENSION OF EXEMPTION

The APA states that a reviewing court shall “hold

unlawful and set aside agency action, findings and

conclusions” found to be “in excess of statutory juris

diction, authority, or limitations, or short of statutory

right[.]” 5 U.S.C. § 706(2)(C). The APA further states

that “ [t] o the extent necessary to decision and when

presented, the reviewing court shall decide all rele

vant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or

applicability of the terms of an agency action.” Id.

§ 706. When reviewing an agency’s legal determina

tion, the court generally applies the standard of re

view articulated by the Supreme Court in Chevron v.

Natural Resources Defense Council, 467 U.S. 837, 104

S.Ct. 2778, 81 L.Ed.2d 694 (1984). See id. at 842-44,

104 S.Ct. 2778 (asking “whether Congress has direct

ly spoken to the precise question at issue,” and if not,

“whether the agency’s answer is based on a permissi

ble construction of the statute”).

There are times, however, when Chevron is inappli

cable. “[Legislative rules and formal adjudications

are always entitled to Chevron deference, while less

formal pronouncements like interpretive rules and

informal adjudications may or may not be entitled to

Chevron deference.” Sinclair, 887 F.3d at 990 (cita

tion omitted); see also United States v. Mead Corp.,

533 U.S. 218, 229-30, 121 S.Ct. 2164, 150 L.Ed.2d

292 (2001) (“It is fair to assume generally that Con

gress contemplates administrative action with the

effect of law when it provides for a relatively formal

administrative procedure tending to foster the fair

ness and deliberation that should underlie a pro

nouncement of such force.”). In Sinclair, we deter

mined that “Congress did not intend the EPA’s inter

pretation of ‘disproportionate economic hardship’ to

65a

have the ‘force of law.’ ” 887 F.3d at 993. And we con

cluded that informal adjudications of petitions to ex

tend the small refinery exemption were not subject to

Chevron deference. Id. at 992; see also id. (noting,

among other things, that such adjudications lack

“trial-like procedures” and “the benefit of notice-andcomment”).

When Chevron does not apply, “we follow the anal

ysis set forth in Skidmore v. Swift & Co., 323 U.S.

134, 65 S.Ct. 161, 89 L.Ed. 124 (1944).” Id. at 991

(parallel citations omitted). Skidmore review means

that the weight provided to an administrative judg

ment “will depend upon the thoroughness evident in

[the agency’s] consideration, the validity of its reason

ing, its consistency with earlier and later pronounce

ments, and all those factors which give it power to

persuade, if lacking power to control.” 323 U.S. at

140, 65 S.Ct. 161 (brackets added). Put another way,

an administrative ruling under Skidmore may “claim

the merit of its writer’s thoroughness, logic, and ex

pertness, its fit with prior interpretations, and any

other sources of weight.” Mead, 533 U.S. at 235, 121

S.Ct. 2164.

TEXTUAL ANALYSIS

For the Biofuels Coalition’s first statutory argu

ment, we begin with the text referring to an “Exten

sion of Exemption.” The small refinery exemption

subject to an extension in this section of the amended

Clean Air Act is expressly identified as “Temporary”

in subpart (A). 42 U.S.C. § 7545(o)(9)(A). That tempo

rary exemption for small refineries initially lasted

until calendar year 2011. Id. § 7545(o)(9)(A)(i). Con

gress decided this temporary exemption could be ex

tended past 2010 for a given small refinery if compli

ance, as determined by a DOE study, would impose

disproportionate

economic

hardship.

Id.

66a

§ 7545(o)(9)(A)(ii). In subpart (B), Congress decided

that this temporary exemption could also be extended

past 2010 for a small refinery if compliance, as adju

dicated by the EPA in response to that refinery’s peti

tion, would impose disproportionate economic hard

ship. Id. § 7545(o) (9) (B) (i)-(ii).

A common definition of “extension” that meshes

with this statutory scheme is apparent. Several dic

tionaries include a definition of “extension” to the ef

fect of “an increase in length of time,” especially “an

increase in time allowed under agreement or conces

sion.” Extension, Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary (last vis

ited January 17, 2020); see also Extension, Collins

Online Dictionary, https://www.collinsdictionary.com/

dictionary/english (“Collins,” last visited January 17,

2020) (“An extension is an extra period of time for

which something lasts or is valid, usually as a result

of official permission.”); Extension, Dictionary.com

Online Dictionary, https://www.dictionary.com/browse

(“Dictionary.com,” last visited January 17, 2020)

(“[A]n additional period of time given one to meet an

obligation[.]”). Similar dictionaries contain a related

definition of “extension”: “[T]he fact of reaching,

stretching, or continuing; the act of adding to some

thing in order to make it bigger or longer.” Extension,

Cambridge Online Dictionary, https://dictionary.

Cambridge. or g/us/dictionary/english

(“Cambridge,”

last visited January 17, 2020); see also Extension,

Dictionary.com (“[T]hat by which something is ex

tended or enlarged; an addition[.]”); Extension, Lexico

Online Dictionary, https://www.lexico.com/en/definition

(“Lexico,” last visited January 17, 2020) (“A part that

is added to something to enlarge or prolong it.”).

These dictionaries also indicate that the definition of

“extend” includes “to add to something in order to

67a

make it bigger or longer.” Extend, Cambridge; see also

Extend, Merriam-Webster (“[T]o cause to be longer:

Prolong[.]”) (capitalization omitted).

These ordinary definitions of “extension,” along

with common sense, dictate that the subject of an ex

tension must be in existence before it can be extend

ed. For example, if someone interested in current

events subscribes to a news service in years one

through five, allows the subscription to lapse in years

six and seven, and goes back to the news service in

year eight, we usually do not say that year eight was

an “extension” of the subscription from years one

through five. Rather, we say that the person renewed

or restarted his or her subscription in year eight.

Likewise, if someone seeks and obtains permission in

years one through five to shop at a members-only re

tailer, does not seek or is denied membership in years

six and seven, but seeks and obtains membership in

year eight, we typically do not say that the return to

the retailer in year eight was an “extension” of the

membership. We say, instead, that the person re

newed or restarted his or her membership in year

eight.

Paired with the rest of the amended Clean Air Act,

therefore, common definitions of “extension” mean

that a small refinery which did not seek or receive an

exemption in prior years is ineligible for an extension,

because at that point there is nothing to prolong, en

large, or add to. Congress chose to provide an “Exten

sion of exemption” for disproportionate economic

hardship, based either on the results of the DOE

study or on a meritorious petition. Congress did not

provide an unlimited “Exemption” to every small re

finery identified in the DOE study or with a meritori

ous petition. See Advocate Health Care Network v.

Stapleton,

U.S.

137 S. Ct. 1652, 1659, 198

68a

L.Ed.2d 96 (2017) (observing that “[w]hen legislators

did not adopt ‘obvious alternative’ language, ‘the nat

ural implication is that they did not intend’ the alter

native”) (citation omitted). Congress presumably used

the term “extension” for a reason, and we should be

hesitant to strip that word of significant meaning. See

TRW, Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441,

151 L.Ed.2d 339 (2001) (restating that “[i]t is a cardi

nal principle of statutory construction that a statute

ought, upon the whole, to be so construed that, if it

can be prevented, no clause, sentence, or word shall

be superfluous, void, or insignificant”) (citation and

internal quotation marks omitted).

This interpretation of “extension” funnels small re

fineries toward compliance over time. The statute

contemplates a “temporary” exemption for these enti

ties “with an eye toward eventual compliance with

the renewable fuels program for all refineries.” Her

mes Consolidated, LLC v. EPA, 787 F.3d 568, 578

(D.C. Cir. 2015). All small refineries were the benefi

ciaries of a blanket exemption from 2006 through

2010. According to the EPA, 24 of these small refiner

ies received extensions of their exemptions in the af

termath of the 2011 DOE study. See supra § I.B. That

number should have tapered down from 2013 for

ward, because the only small refineries from this

group which continued to be eligible for extensions

were ones that submitted meritorious hardship peti

tions each year. This reading of “extension” means

that 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.

The EPA and the Refineries place significant

weight on more recent Congressional pronounce

ments emphasizing the significance or breadth of the

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small refinery exemption. See supra § I.B. The Su

preme Court has discouraged the use of “|p]ostenactment legislative history (a contradiction in

terms),” stating that such history “is not a legitimate

tool of statutory interpretation.” Bruesewitz v. Wyeth

LLC, 562 U.S. 223, 242, 131 S.Ct. 1068, 179 L.Ed.2d

1 (2011). “Real (pre-enactment) legislative history is

persuasive to some because it is thought to shed light

on what legislators understood an ambiguous statu

tory text to mean when they voted to enact it into

law. But post-enactment legislative history by defini

tion could have had no effect on the congressional

vote.” Id. (citations and internal quotation marks

omitted). Bruesewitz assigned no value to “a Commit

tee Report by a later Congress,” id. at 241, 131 S.Ct.

1068, consistent with other precedent. See, e.g., Bar

ber v. Thomas, 560 U.S. 474, 486, 130 S.Ct. 2499, 177

L.Ed.2d 1 (2010) (“[W]hatever interpretive force one

attaches to legislative history, the Court normally

gives little weight to statements, such as those of the

individual legislators, made after the bill in question

has become law.”) (emphasis in original); Graham,

559 U.S. at 297-98, 130 S.Ct. 1396 (refusing to rely

on a letter written by the primary sponsors of a bill

“13 years after the amendments were enacted,” as the

letter had “scant or no” interpretive value).

We need not decide whether the post-enactment

history proffered by the EPA and the Refineries is off

limits, because even if we consider those materials,

they do not change the outcome. The post-enactment

materials do not discuss the definition of “extension.”

Moreover, assuming arguendo that certain legislators

thought the small refinery exemption was important,

the ones who enacted the law also made clear that

the renewable fuel targets reflected in the Energy

Policy Act and the Energy Independence and Security

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Act were essential to promoting biofuel production,

energy independence, and environmental protection.

See supra §§ I.A—B; see also American Fuel & Petro

chemical Mfrs. v. EPA, 937 F.3d 559, 568 (D.C. Cir.

2019) (confirming that the RFS program was intend

ed to “move the United States toward greater energy

independence and security” and “increase the produc

tion of clean renewable fuels”) (citation omitted).

Those targets were designed to be aggressive and

“market forcing.” See supra §§ I.A-B; see also Ameri

cans for Clean Energy v EPA, 864 F.3d 691, 710 (D.C.

Cir. 2017) (“[T]he Renewable Fuel Program’s increas

ing requirements are designed to force the market to

create ways to produce and use greater and greater

volumes of renewable fuel each year.”). To balance all

of those policy concerns, Congress gave small refiner

ies a substantial amount of time to adapt, commenc

ing the RFS program with a blanket exemption that

for some refineries ended up lasting seven years.

A small refinery in 2006 was in a much different

position than a small refinery in 2016 or 2017. A

small refinery in 2006 did not have a meaningful op

portunity to consider in advance whether or how it

could comply with renewable fuel obligations. In con

trast, a small refinery in 2016 or 2017 had many

years to ponder operational issues and compliance

costs, including whether it made sense to enter into

or remain in the market in light of the statute’s chal

lenging renewable fuels mandate. The EPA has long

required each small refinery submitting an extension

petition to consider and explain when the refinery

will achieve compliance. 40 C.F.R. § 80.1441(e)(2)(i).

So a small refinery in 2016 or 2017 had an ample op

portunity to study and understand any dispropor

tionate economic impact likely to be occasioned by

meeting Congressional targets. Construing the word

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“extension” to require prior exemptions — as a predi

cate to prolongment or enlargement - limits but pre

serves the small refinery exemption while giving

meaning to the remainder of 42 U.S.C. § 7545(o)(9).

Understanding “extension” to require a predicate

“exemption” is not new. Through at least the first

quarter of 2016, the EPA itself limited “extensions” to

only those small refineries that qualified for the orig

inal blanket exemption. To illustrate, in April 2016,

the EPA denied a petition submitted by Dakota Prai

rie Refining, LLC (“Dakota Prairie”) to extend the

small refinery exemption in calendar year 2015. Peti

tion for Review, Dakota Prairie Refining, LLC u.

EPA, No. 16-2692, at 8 of 17 (8th Cir. June 13, 2016)

(“Dakota Prairie Appellate Petition”).4 The EPA ex

plained that “ [consistent with the plain language of

the CAA and in furtherance of Congressional intent,

EPA promulgated regulations that allow only small

refineries that previously had received the initial ex

emption to qualify for an extension of that exemp

tion.” Id. Hence, “EPA interprets and implements

these provisions as allowing those small refineries

qualifying for the statutory temporary exemption as

now eligible for an extension of that exemption.” Id.

The EPA explained the rationale for this construc

tion in its April 2016 Dakota Prairie denial letter.

The EPA recognized that “this approach is not only

consistent with the plain language of the statute and

regulations, but also reflects the fact that newer

small refineries have the ability to consider whether

they believe the establishment of the RFS program

4 The Dakota Prairie petition for appellate review attaches

the EPA’s April 14, 2016 denial letter. The petition and its at

tachments are available on PACER, and those materials are cit

ed in footnote 4 on page 23 of the EPA’s appellate brief in this

case.

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and its requirements will cause economic hardship

before beginning operations.” Id. at 8—9 of 17. Fur

thermore, said the EPA, “this approach avoids two

possible negative consequences associated with any

refinery exemption — an increase in obligations for

non-exempt facilities or the use of less renewable fuel

than EPA anticipated when it established the appli

cable percentage standards.” Id. at 9 of 17. The EPA

then put these principles into practice, stating that

“[b]ased on the above, EPA is denying Dakota Prai

rie’s request to evaluate its petition for a one-year

small refinery exemption for its 2015 RFS obliga

tions.” Id.

The EPA and the Refineries contend that “exten

sion” cannot be so interpreted because the statute al

lows a small refinery to tender a hardship petition “at

any time.” 42 U.S.C. § 7545(o)(9)(B)(i). Common defi

nitions of “any” are indeed expansive. See, e.g., Any,

Dictionary.com (“[W]hatever or whichever it may

be[.]”); Any, Lexico (equating “any time” with “[a]t

whatever

Merriam-Webster

time”);

Any,

(“[U]nmeasured or unlimited in amount, number, or

extent[.]”). But even if a small refinery can submit a

hardship petition at any time, it does not follow that

every single petition can be granted. By that logic,

the EPA could grant a 2019 petition seeking a small

refinery exemption for calendar year 2009 - more

than a decade after the fact. The EPA would also be

empowered to grant a re-submitted extension petition

for an earlier year even though the agency had previ

ously denied that very petition. And aside from these

hypothetical examples, EPA data show that the ap

proach followed by the agency from 2016-forward has

opened up a gaping and ever-widening hole in the

statute. The number of petitions filed by small refin

eries has gone up substantially, and the EPA has

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granted nearly every hardship application. See supra

§ I B.

In any event, a more delimited interpretation in

which an “extension” requires a predicate exemption

works hand-in-hand with the phrase “at any time.”

As noted, the EPA must issue annual RFS percent

ages by November 30 of the prior year. 42 U.S.C.

§ 7545(o)(3)(A)-(B). Because they can submit peti

tions “at any time,” small refineries seeking to extend

their hardship exemptions are not limited by this No

vember 30 deadline. This is a significant statutory

concession. As explained by the D.C. Circuit:

The problem is that while the EPA must promul

gate annual percentage standards by November

30 each year, refineries may petition for an ex

emption

“at

any

time,”

U.S.C.

§ 7545(o)(9)(B)(i), and the EPA has no mecha

nism to adjust renewable fuel obligations to ac

count for exemptions granted after each year’s

percentage standards are finalized. As a result,

because the EPA cannot ensure that non-exempt

obligated parties compensate for the renewablefuel shortfall created by belated exemptions,

those gallons of renewable fuel simply go unpro

duced.

American Fuel, 937 F.3d at 571 (emphasis in origi

nal). The EPA raises the percentage standards for

non-exempt parties in a given year by subtracting

from its calculations the transportation fuel contribu

tions of small refineries that were granted exemp

tions before the EPA established the percentage

standards in question. Id. at 588 (citing 40 C.F.R.

§ 80.1405(c)). “This solution, however, is only partial:

the EPA does not currently account for small refinery

exemptions granted after it promulgates percentage

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standards for that year - so-called retroactive exemp

tions.” Id. (emphasis in original).

In short, it confers a substantial benefit upon small

refineries and it maintains a coherent regulatory

scheme to interpret “at any time” to exempt hardship

petitioners from the EPA’s annual percentages dead

line. The EPA does not have a mechanism to fully

compensate for volumes exempted as a result of laterfiled or later-granted small refinery petitions, and the

tool the EPA does have imposes concomitant burdens

on non-exempt obligated parties. See id. at 571

(“When calculating percentage standards for any giv

en year, the EPA accounts for any small refineries

that have received exemptions by requiring non

exempt obligated parties to produce proportionally

more.”). Interpreting the phrase “at any time” in this

manner allows the word “extension” to maintain its

ordinary meaning and to meaningfully promote the

aims of the statute. The contrary interpretation sug

gested in this lawsuit by the EPA and the Refineries

does not.

Although our charge is to evaluate only the EPA’s

adjudication of the three refinery petitions, we draw

theoretical support from Americans for Clean Energy,

864 F.3d 691. One of the issues in that case was the

meaning of the statutory waiver provision based on

supply.”

U.S.C.

“inadequate

domestic

§ 7545(o)(7)(A). The EPA attempted to defend a read

ing of that provision which was held inconsistent

with the letter of the law and the spirit of Congress’

“market forcing policy.” 864 F.3d at 710. The EPA’s

proposed interpretation permitted the agency to un

duly “bring the volume requirements down,” and “[n]o

argument” supported “that goal-defying (much less

that text-defying) statutory construction.” Id. (cita

tion omitted); see also id. at 712 (commenting that

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the EPA’s interpretation turned “the Renewable Fuel

Program’s ‘market forcing’ provisions on their head”).

The D.C. Circuit observed that even if it were per

suaded by the agency’s policy arguments for lowering

renewable fuel volume requirements, “those argu

ments could not overcome the statute’s plain lan

guage, which is our primary guide to Congress’ pre

ferred policy. If the regime is indeed flawed, it is up

to Congress and the President to ‘reenter the field’

and fix it.” Id. (citations and first set of internal quo

tation marks omitted).

Because an “extension” requires a small refinery

exemption in prior years to prolong, enlarge, or add

to, the three refinery petitions in this case were improvidently granted. Wynnewood last received a

hardship exemption in 2012. See supra § I.C.3. There

is no evidence in the record that Woods Cross ever

qualified for a hardship exemption, much less in the

years preceding the refinery’s most recent application

to suspend compliance. See id. § I.C.2. Although

Cheyenne presumably received an exemption in 2015,

its original exemption expired no later than 2013. See

id. § I.C.l. At most, these Refineries sought to renew

or restart their exemptions in 2016 or 2017. The

amended Clean Air Act did not authorize the EPA to

grant the petitions.

THE 2014 SMALL REFINERY RULE

The EPA and the Refineries contend that we lack

jurisdiction to address the foregoing issue as a result

of the 2014 amendment to the regulatory definition of

“small refinery.” The Clean Air Act generally pro

vides that although challenges to final agency actions

which are “locally or regionally applicable” must be

filed “in the United States Court of Appeals for the

appropriate circuit,” challenges to final agency ac

tions identified by the EPA as “based on a determina-

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tion of nationwide scope or effect” must be filed “in

the United States Court of Appeals for the District of

Columbia[.]” 42 U.S.C. § 7607(b). The statute also

generally specifies that any petition for review under

this subsection must be filed within 60 days from the

date notice of such promulgation, approval, or action

appears in the Federal Register. Id.', see also supra

§ III.A. The EPA and the Refineries assert that the

Biofuels Coalition is effectively challenging the 2014

Small Refinery Rule, and the 60-day window for any

such challenge (which could only be heard in the D.C.

Circuit) closed long ago.

The EPA communicated the basis for the 2014

Small Refinery Rule in a document entitled “Regula

tion of Fuels and Fuel Additives: RFS Pathways II,

and Technical Amendment to the RFS Standards and

E15 Misfueling Mitigation Requirements.” 79 Fed.

Reg. 42,128 (July 18, 2014). The EPA explained that

in 2010, the agency specified in the definition of

“small refinery” that the 75,000 barrels per day

(“bpd”) threshold determination “should be calculated

based on information from calendar year 2006.” Id. at

42,152. By 2014, however, the agency believed it was

inappropriate that “refineries satisfying the 75,000

bpd threshold in 2006 should be eligible for exten

sions to their small refinery RFS exemption if they no

longer meet the 75,000 bpd threshold.” Id. According

ly, the EPA proposed modifying the definition of

“small refinery” so that the 75,000 bpd threshold ap

plied “in 2006 and in all subsequent years.” Id. The

EPA also proposed specifying that “in order to qualify

for an extension of its small refinery exemption,” a

refinery had to qualify as a “small refinery” for “all

full calendar years between 2006 and the date of

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submission of the petition for an extension of the ex

emption.” Id.5

The EPA received two comments supporting these

proposed modifications, but ultimately decided to is

sue a different final rule. Id. at 42,152, 42,163. The

EPA stated that “[a]fter further consideration of this

matter,” it understood the agency’s initial proposal

“could unfairly disqualify a refinery from eligibility

for small refinery relief based only on a single year’s

production since 2006.” Id. at 42,152. The EPA

thought it would be improper to treat differently “two

refineries whose recent operating conditions were

equivalent” if “one refinery exceeded 75,000 bpd in a

single year as much as 8 years ago.” Id. The agency

therefore modified the final rule “to require that

throughput be no greater than 75,000 barrels in the

most recent full calendar year prior to an application

for hardship.” Id. The EPA emphasized that its “pri

mary concern” was “treating refineries with similar

performance the same,” and argued that the new

changes “reasonably implement the statutory defini

tion of ‘small refinery,’ which indicates that the

75,000 barrel aggregate daily crude oil throughput is

for ‘a calendar year,’ but does not specify which cal

endar year should be the focus of inquiry.” Id.

While there may be overlap between the definition

of a “small refinery” and the definition of an “exten

sion,” the two issues are not the same. Qualifying as

a “small refinery” is a necessary but not sufficient

condition for an extension. In addition to meeting the

definition of a “small refinery,” a petitioner must

5 The EPA’s original proposal appears at 78 Fed. Reg. 36,042

(proposed June 14, 2013). See id. at 36,063-64 (“[W]e propose

modifying the definition of small refinery so that the crude

throughput threshold of 75,000 bpd must apply in 2006 and in

all subsequent years.”).

78a

demonstrate that it will suffer disproportionate eco

nomic hardship if required to comply with the stat

ute’s renewable fuels directive. 42 U.S.C.

§§ 7545(o)(9)(A)(ii)(II), 7545(o)(9)(B)(i). A petitioner

also must show that it is seeking an “extension” of an

exemption, as opposed to a free-standing “exemption.”

Id. The 2014 Small Refinery Rule establishes who

may seek an extension of an exemption, but it does

not resolve what constitutes a valid extension.

This analysis is consistent with the preamble to

and the text of 40 C.F.R. § 80.1441. Both of those

sources state that to qualify for an extension of the

exemption, a “small refinery” must have average dai

ly crude oil throughput of 75,000 barrels or less in the

prior year (in contrast to the previous version of the

rule, which looked to an applicant’s throughput in

2006, and in contrast to the EPA’s opening proposal,

which looked to an applicant’s throughput from 2006

to the date of the petition). E.g.,

id.

§ 80.1441(e)(2)(iii). But neither the preamble nor the

administrative rule contains any discussion of what

the word “extension” actually means. The preamble

and the administrative rule also contain no indication

that statute’s use of the word “extension” is ambigu

ous; the ambiguity the EPA attempted to address ex

pressly pertained to the phrase “small refinery.” See

79 Fed. Reg. at 42,152 (noting that the statute does

not specify which year should be the focus of the

75,000 bpd small refinery calculation).

Tellingly, the EPA itself previously did not treat

the 2014 Small Refinery Rule as dispositive on the

issue of an “extension” of the exemption. In 2016 almost two years after the amendment reflected in 40

C.F.R. § 80.1441(e)(2)(iii) became effective, see 79

Fed. Reg. at 42,128 - the EPA did not mention its

regulatory definition of “small refinery” when deny-

79a

ing the Dakota Prairie petition. Dakota Prairie Ap

pellate Petition at 8-9 of 17. If the 2014 Small Refin

ery Rule controlled the meaning of “extension,” the

EPA would have been required to adjudicate Dakota

Prairie’s petition based on whether the refinery had

average aggregate daily crude oil throughput of

75,000 barrels or less in 2014 and 2015. The EPA did

not do that.

Regardless, there is no challenge in the case at bar

to the 2014 Small Refinery Rule. The Biofuels Coali

tion does not seek to nullify it. This court expresses

no opinion on its validity. The only remedy sought by

the Biofuels Coalition is to vacate the EPA’s decisions

granting the 2016 and 2017 hardship petitions of

Cheyenne, Woods Cross, and Wynnewood. That, in

turn, limits our review and the scope of any relief we

may grant. Cf. Alon Refining Krotz Springs, Inc. v.

EPA, 936 F.3d 628, 643 (D.C. Cir. 2019) (“[T]he peti

tions 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.”). The Biofuels Coalition’s

petition to this court was neither misdirected to the

wrong tribunal, nor untimely by virtue of 42 U.S.C.

§ 7607(b). We have jurisdiction to determine whether

the EPA exceeded its authority in exempting three

individual refineries in Oklahoma, Utah, and Wyo

ming.

For similar reasons, we disagree with the EPA and

the Refineries that Chevron deference, rather than

Skidmore review, is in order. Their argument for

Chevron deference assumes not only that the 2014

Small Refinery Rule is up for grabs in this litigation,

but also that the Rule sets forth a permissible con-

80a

struction of the term “extension.” Neither assumption

is accurate. As discussed, the validity of the 2014

Small Refinery Rule is not being disputed here, only

the validity of unpublished EPA orders granting

small refinery petitions that were not subject to notice-and-comment procedures. Even if the 2014 Small

Refinery Rule reasonably fills a gap in the portion of

the statute defining a “small refinery” by throughput

in an unspecified “calendar year” (an issue we do not

decide today), see 42 U.S.C. § 7545(o)(l)(K), the Rule

does not explain or resolve any ambiguity with re

spect to the statutory definition of “extension.” We

are thus bound by Sinclair, 887 F.3d at 992-93,

which evaluated informal adjudications of small re

finery petitions under Skidmore.

DISPROPORTIONATE ECONOMIC HARD

SHIP

The Biofuels Coalition’s second statutory argument

takes aim at the EPA’s construction of “dispropor

tionate economic hardship.” As we explained in Sin

clair, “hardship” is “suffering,” “privation,” or “adver

sity,” i.e., something that “makes one’s life hard or

difficultf.]” Id. at 996 (citations omitted). Although

the EPA’s comment in the Cheyenne order that relief

may be warranted “even if the refinery’s operations

are not significantly impaired” may prompt questions

about the agency’s interpretation of “hardship,” see

REC2 at 636 n.10, 646 n.41, the Biofuels Coalition

does not dig deeper into the meaning of “suffering,”

“privation,” or “adversity.” We assume for the sake of

argument that at least part of the hardship the EPA

sought to address, see infra § IV.C, was each refin

ery’s RFS compliance bill for the year in question.

REC2 at 593, 596, 652, 688-89, 694.

A “hardship” for a small refinery, however, is not

enough. The hardship must be “disproportionate.”

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The amended Clean Air Act “commands the EPA to

consider the disproportionate impact of the RFS pro

gram, which inherently requires a comparative eval

uation.” Sinclair, 887 F.3d at 997 (emphasis in origi

nal). “The EPA must compare the effect of the RFS

Program compliance costs on a given refinery with

the economic state of other refineries.” Id.; see also

Hermes, 787 F.3d at 575 (reciting that “the relative

costs of compliance alone cannot demonstrate eco

nomic hardship because all refineries face a direct

cost associated with participation in the program”).

The Biofuels Coalition claims that the EPA bypassed

this part of the statutory test.

We are satisfied that the EPA did not dispense with

a comparative analysis in granting the Refineries’ ex

tension petitions. Several metrics in the scoring sys

tem created by the DOE in 2011 are designed to be

comparative. See 2011 DOE Study, RECl at 490

(“[M]etries were developed to evaluate whether each

of the eighteen refineries that responded to the sur

vey and fall within the scope of the study would suf

fer an economic hardship relative to an industry

standard”). For example, the Disproportional Eco

nomic Impact Metric of “Relative refining margin

measure” is calculated as a three year average for all

small refineries, and “[r]efineries with a negative net

average margin were scored a 10; those below the in

dustry average were scored a 5.” Id. at 527 (emphasis

omitted). The Disproportional Economic Impact Met

ric of “In a niche market” also recognizes “higher than

industry refining margins for the niche refiner.” Id.

at 527 (emphasis omitted). The Disproportional

Structural Impact Metric of “Renewable fuel blending

(% of production)” further provides that refineries

which “have greater than the industry average of ap

proximately 32 percent diesel production receive a

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score of 5; those at 40 percent diesel or above have a

score of 10.” Id. at 526 (emphasis omitted).

The EPA orders at issue are not as clear as they

might have been, but they contain references to one

or more of these comparative factors. As to Cheyenne,

the EPA highlighted the refinery’s negative net refin

ing margin, and considered the score of “10” assigned

to the refinery by the DOE for diesel production.

REC2 at 643, 645. As to Woods Cross, the EPA

stressed the refinery’s low net refining margin, along

with blending limitations. Id. at 684. The EPA also

took into account the score of “10” assigned to the re

finery by the DOE for lacking a niche market. Id. at

683. As to Wynnewood, the EPA again considered net

refining margins, plus DOE rankings for diesel pro

duction and the presence or absence of a niche mar

ket. Id. at 738-40. On this record, we cannot say that

the EPA eliminated the requirement of consulting in

dustry benchmarks when evaluating the Refineries’

assertions of disproportionate economic hardship.

HARDSHIP FROM COMPLIANCE

The Biofuels Coalition’s third statutory argument is

that the EPA relied on disproportionate economic

hardship suffered by the Refineries as a result of

something other than RFS compliance. Part (A) of 42

U.S.C. § 7545(o)(9), in connection with the

“[ejxtension of the exemption” that can be effected by

a DOE study, directed the DOE to investigate

“whether compliance with the requirements” of the

RFS program “would impose a disproportionate eco

nomic hardship

small refineries.”

Id.

§ 7545(o)(9)(A)(ii)(I). The next clause in Part (A) cor

roborated that if a DOE study determined a small re

finery “would be subject to a disproportionate eco

nomic hardship if required to comply” with RFS obli

gations, then the EPA was obligated to extend the

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blanket exemption for another two years. Id.

§ 7545(o)(9)(A)(ii)(II). The plain language of these

provisions indicates that renewable fuels compliance

must be the cause of any disproportionate hardship.

The EPA and the Refineries resist this construction

of the law, pointing to language in Part (B) of the

statute. Part (B) addresses case-by-case applications,

and states that a small refinery may submit a peti

tion “for an extension of the exemption under subpar

agraph (A) for the reason of disproportionate econom

ic hardship.” Id. § 7545(o)(9)(B)(i). “The phrase ‘by

reason of denotes some form of causation,” Husted v.

, 138 S. Ct.

A. Philip Randolph Inst.,

U.S.

1833, 1842, 201 L.Ed.2d 141 (2018), leading the EPA

and the Refineries to argue that small refinery peti

tions need only be “for the reason of’ economic hard

ship, not “for the reason of’ RFS compliance.

This suggested interpretation does not view

§ 7545(o)(9)(B)(i) in context. Section 7545(o)(9)(B)(i)

tells the reader that any individual exemption peti

tion must be “for the reason of’ (and thus caused by)

disproportionate economic hardship, but it does not

attempt to describe what must induce the hardship.

Congress did that work in §§ 7545(o)(9)(A)(ii)(I)—(II),

and then elucidated that the object of any petition

under Part (B) is “an extension of the exemption un

der subparagraph (A)[.]” Id. § 7545(o)(9)(B)(i). Con

gress went on to remind the EPA that each case-bycase petition under Part (B) must be assessed in light

of “the findings of the study under subparagraph

and

other

economic

factors.”

Id.

(A)(ii)

§ 7545(o)(9)(B)(ii). Far from being diluted by Part (B),

the hardship-caused-by-compliance requirement in

Part (A) works together with it.

The agency orders granting the Refineries’ exten

sion petitions are not restricted to disproportionate

84a

economic hardship caused by RFS compliance. The

EPA stated in the Woods Cross and Wynnewood or

ders that such hardship “can exist on the basis of ad

verse structural conditions alone,” followed by refer

ences to “[a] difficult year for the refining industry as

a whole” and an “industry-wide downward trend” of

lower net refining margins. REC2 at 682, 738-39.

The EPA echoed in the Cheyenne order that dispro

portionate economic hardship may be the result of “a

difficult year for the industry as a whole.” Id. at 645.

Macroeconomic conditions surely provide important

context for assessing individual small refinery exten

sion petitions. But hardships caused by overall eco

nomic conditions are different from hardships caused

by compliance with statutory renewable fuel obliga

tions.

Even if the EPA’s references to structural condi

tions and the industry as a whole could be character

ized as inartful shorthand, the agency concluded that

removing RFS obligations for Woods Cross in 2016

and Wynnewood in 2017 would relieve those Refiner

ies’ disproportionate economic hardship “in whole or

in part[.]” Id. at 684, 741. This statement is indeci

pherable unless the EPA had in mind hardships be

yond those caused by RFS compliance. The alleged

hardships imposed on Woods Cross and Wynnewood

were in the form of RFS compliance expenses. Id. at

652, 688-89. Each of those hardships was entirely

eliminated once the EPA suspended the Refineries’

RFS obligations. The only way the EPA’s orders could

have offered relief “in part” was if the agency consid

ered disproportionate economic hardship occasioned

by something other than complying with the amend

ed Clean Air Act. Granting extensions of exemptions

based at least in part on hardships not caused by

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RFS compliance was outside the scope of the EPA’s

statutory authority.

THE BIOFUELS COALITION’S ADDITION

AL CHALLENGES

Beyond statutory construction issues, the Biofuels

Coalition contends that the EPA’s analysis of dispro

portionate economic hardship was arbitrary and ca

pricious under the APA. See 5 U.S.C. § 706(2)(A). The

Biofuels Coalition asserts the EPA did not recognize

that (1) the Refineries’ economic status was relatively

favorable, because Cheyenne had a one-time $654

million accounting write-down, Woods Cross’s threeyear margin was higher than the industry average,

and Wynnewood characterized $80.4 million in

scheduled turnaround costs as direct operating ex

penses; (2) overall RIN purchase costs were relatively

modest, especially in comparison to the applicable

state and local sales tax rate for each refinery; (3) the

corporate parents of the Refineries had carryover

RINs which could be used to offset the Refineries’

yearly RFS obligations, and regardless, the financial

health of the parents should have been factored in to

each hardship determination; and (4) prior agency

studies and other documents showed the Refineries

could recoup RFS compliance costs via higher con

sumer prices.

Our review is “narrow” and “deferential” under the

APA’s “arbitrary and capricious” standard. Dep’t of

Commerce v. New York,

U.S.

, 139 S. Ct.

2551, 2569, 204 L.Ed.2d 978 (2019). An agency need

only “examine the relevant data and articulate a sat

isfactory explanation for its action including a ration

al connection between the facts found and the choice

made.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct.

2856, 77 L.Ed.2d 443 (1983) (citation and internal

86a

quotation marks omitted). A decision is arbitrary and

capricious if an agency “has relied on factors which

Congress has not intended it to consider, entirely

failed to consider an important aspect of the problem,

offered an explanation for its decision that runs coun

ter to the evidence before the agency, or is so implau

sible that it could not be ascribed to a difference in

view or the product of agency expertise.” Id.; see also

Dine Citizens Against Ruining Our Env’t v. Bern

hardt, 923 F.3d 831, 839 (10th Cir. 2019) (adding that

an agency acts arbitrarily and capriciously if it makes

“a clear error of judgment,” but recognizing that a

“presumption of validity attaches to the agency ac

tion” and the burden of proof lies with those challeng

ing such action).

This forgiving standard of review dooms almost all

of the Biofuels Coalition’s objections. Right or wrong,

the EPA’s overall assessment of the Refineries’ eco

nomic status was not arbitrary. There is no evidence

in the record that Cheyenne’s write-down and

Wynnewood’s characterization of expenses were im

proper accounting maneuvers. Cheyenne suffered a

loss and had other negative financial characteristics

in 2016 even if the write-down is removed from the

equation, and Wynnewood had certain financial fea

tures from 2016 to 2017 which were consistent with

the EPA’s analysis. Woods Cross’s net refining mar

gin may have been above average in the aggregate,

but that margin sharply declined in 2016. Nothing in

the amended Clean Air Act or in existing regulations

required the EPA to base its decisions on tax rates or

parent company information. As a result, it is hard to

see how the parental materials for which the Biofuels

Coalition seeks judicial notice could show an abuse of

discretion. In any event, with only one exception,

87a

those judicial notice motions are denied. See infra

§ VI.

There is one objection presented by the Biofuels

Coalition, however, that warrants intervention: The

EPA ignored or failed to provide reasons for deviating

from prior studies showing that RIN purchase costs

do not disproportionately harm refineries which are

not vertically integrated. This oversight is significant

even with deferential review, in part because admin

istrative agencies “are free to change their existing

policies as long as they provide a reasoned explana

tion for the change.” Encino Motorcars, LLC v. Na

varro,

U.S.

, 136 S. Ct. 2117, 2125, 195

L.Ed.2d 382 (2016). An agency must “display aware

ness that it is changing position” and “show that

there are good reasons for the new policy.” FCC v.

Fox Television Stations, Inc., 556 U.S. 502, 515, 129

S.Ct. 1800, 173 L.Ed.2d 738 (2009) (emphasis omit

ted). Likewise, if the new policy “rests upon factual

findings that contradict those” upon which the prior

policy was based, the agency must provide a reasoned

explanation “for disregarding facts and circumstances

that underlay or were engendered by the prior poli

cy.” Id. at 515-16, 129 S.Ct. 1800. “It follows that an

unexplained inconsistency in agency policy is a rea

son for holding an interpretation to be an arbitrary

and capricious change from agency practice.” Encino

Motorcars, 136 S. Ct. at 2126 (citation, brackets, and

internal quotation marks omitted).

The EPA has dedicated a considerable amount of

attention to whether unintegrated refineries can re

coup RFS compliance costs by passing them on to

customers. The agency published a study addressing

this topic in 2015. See Dallas Burkholder, EPA Office

of Transportation and Air Quality, A Preliminary As

sessment of RIN Market Dynamics, RIN Prices, and

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Their Effects (May 14, 2015) (“Burkholder Study”),

RECl at 410-40. The EPA concluded that

“[m]erchant refiners, who largely purchase separated

RINs to meet their RFS obligations,” are “recovering

these costs in the sale price of their products.” Id. at

412. The EPA acknowledged that “there is a direct

and obvious cost” in obtaining RINs for merchant re

finers, who “do not own fuel blending infrastructure”

and “generally purchase RINs from fuel blenders[.]”

Id. at 437. Still, the EPA found that refineries “are

generally able to recover the cost of meeting their

RIN obligations in the price of their petroleum blendstocks.” Id. at 437-38, 440.

The agency revisited this topic in 2017. In response

to multiple petitions seeking to change RFS “point of

obligation” rules, the EPA cited the Burkholder Study

and repeated that “merchant refiners are generally

not uniquely adversely impacted (relative to integrat

ed refiners).” Denial of Petitions for Rulemaking to

Change the RFS Point of Obligation, EPA-420-R-17008 (November 2017), at 22 & n.57, available at

https://nepis.epa.gov (“EPA Point of Obligation Deni

al,” last visited January 17, 2020). The EPA similarly

reiterated that while merchant refiners are “directly

paying for the RINs they buy on the market, they are

passing that cost along in the form of higher whole

sale gasoline and diesel prices.” Id. at 23; see also id.

(explaining that “[e]mpirical data” support the argu

ment that RIN purchasers “recover the cost of these

RINs in the price of the petroleum blendstocks they

sell”). The EPA reviewed studies submitted by commenters purporting to show “an inability to ‘passthrough’ the cost of the RFS program to consumers,”

but the agency did “not find these assessments con

vincing.” Id. at 23-24. In contrast, the EPA found

“compelling^’ other papers demonstrating that “the

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ability of the merchant refiners to recover the cost of

the RINs was complete (not statistically different

than 100%) and occurred quickly (within 2 business

days).” Id. at 25.

At least through the first quarter of 2019, the EPA

continued to affirm its policy position that merchant

refiners pass through most or all of their RIN pur

chase costs. The agency reported in March of 2019

that it “conducted an extensive analysis of RIN prices

and market dynamics. After studying the data, we

concluded that RIN prices generally reflected market

fundamentals and that obligated parties (including

parties that purchase separated RINs) recover the

cost of RINs in the market price of gasoline and diesel

fuel they sell.” Modifications to Fuel Regulations To

Provide Flexibility for E15; Modifications to RFS RIN

Market Regulations, 84 Fed. Reg. 10,584, 10,607

(proposed Mar. 21, 2019). The EPA announced the

same conclusion in late 2018, adding that “[e]ven if

we were to assume the cost of acquiring RINs were

not recovered by obligated parties,” a cost-to-sales ra

tio test “shows that the costs to small entities of the

RFS standards are far less than 1 percent of the val

ue of their sales.” EPA 2019 Standards, 83 Fed. Reg.

at 63,742.

The EPA did not analyze the possibility of RIN cost

recoupment when it granted the Refineries’ extension

petitions. There is no ques

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