Respondents Brief — Environmental Protection Agency, Petitioner v. Calumet Shreveport Refining, L.L.C., et al.

Supreme Court briefAug 27, 2024

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Nos. 23-1229 & 23-1230

In the Supreme Court of the United States

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ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

CALUMET SHREVEPORT REFINING, LLC, ET AL.,

Respondents

___________________

GROWTH ENERGY, ET AL.,

Petitioners,

CALUMET SHREVEPORT REFINING, LLC, ET AL.,

Respondents

___________________

On Petitions for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

___________________

BRIEF FOR THE SMALL REFINERY

RESPONDENTS IN OPPOSITION

___________________

LeAnn M. Johnson Koch

Alexandra M. Bromer

Jonathan G. Hardin

Aimee E. Ford

PERKINS COIE LLP

700 Thirteenth Street N.W.

Suite 800

Washington, DC 20005-3960

Michael R. Huston

Counsel of Record

Karl J. Worsham

Jordan M. Buckwald

PERKINS COIE LLP

2525 E. Camelback Road,

Suite 500

Phoenix, AZ 85016-4227

(202) 434-1630

mhuston@perkinscoie.com

Additional counsel on inside cover

Eric Wolff

PERKINS COIE LLP

1201 3rd Avenue

Suite 4900

Seattle, WA 98101

Sopen Shah

PERKINS COIE LLP

33 E. Main Street

Suite 201

Madison, WI 53703

QUESTION PRESENTED

The Clean Air Act requires the Environmental Protection Agency (“EPA”) to grant a small petroleum refinery

an exemption from the Act’s Renewable Fuel Standard

(“RFS”) where compliance with the RFS would cause the

refinery to experience disproportionate economic hardship in a given year. 42 U.S.C. § 7545(o)(9)(B)(i). Six small

refineries separately petitioned EPA for hardship exemptions for some or all of the compliance years 2017 through

2021. EPA “determin[ed],” after “consider[ing] each [refinery’s] individual refinery information,” that each of the

petitioning small refineries was not entitled to hardship

relief and denied their petitions. EPA.App.14a–15a. Each

small refinery then petitioned for judicial review under

the Clean Air Act, 42 U.S.C. § 7607(b)(1). The question

presented is:

Whether an EPA decision denying a small refinery’s

RFS hardship petition is a “locally or regionally applicable” action, such that a court challenge to that action is

properly venued in a regional circuit court, or is it instead

a “nationally applicable” action or an action “based on a

determination of nationwide scope or effect,” such that

the challenge is properly venued only in the U.S. Court of

Appeals for the D.C. Circuit. 42 U.S.C. § 7607(b)(1).

CORPORATE DISCLOSURE STATEMENT

Calumet Shreveport Refining, LLC, is a Delaware

limited liability company. It is 100% owned by Calumet,

Inc., a manufacturer of specialty products and a publicly

traded company under the symbol “CLMT.” There are no

other known parent corporations or publicly held corporations that own 10% or more of Calumet, Inc.’s stock.

Ergon Refining, Inc., is a Mississippi corporation. It is

a refiner of petroleum products and is wholly owned by

Ergon, Inc. No publicly held company has a 10% or

greater ownership interest in it.

Ergon-West Virginia, Inc., is a Mississippi corporation. It is a refiner of petroleum products and is wholly

owned by parent company Ergon, Inc. No publicly held

company has a 10% or greater ownership interest in it.

Placid Refining Company LLC is a Delaware limited

liability company. It is a refiner of petroleum products and

is 100% owned by its parent companies Placid Holding

Company and RR Refining, Inc. No publicly held company has a 10% or greater ownership interest in it.

The San Antonio Refinery LLC (“TSAR”) is a Delaware limited liability company (formerly known as Calumet San Antonio Refining, LLC). TSAR is a refiner of

petroleum products. TSAR is 100% owned by Allegiance

Refining, LLC. Allegiance Refining, LLC, is a Texas limited liability company. It is a refining operations company

and operator of TSAR. Allegiance Refining, LLC, is not

publicly traded, and no publicly held company has a 10%

or greater ownership interest in it.

Wynnewood Refining Company, LLC, is a wholly

owned subsidiary of CVR Refining, LLC, a Delaware limited liability company. CVR Refining, LLC, is a wholly

owned subsidiary of CVR Refining, LP, which is an indi-

iii

rect wholly owned subsidiary of CVR Energy, Inc., a Delaware corporation that is publicly traded on the NYSE

under the symbol “CVI.” Icahn Enterprises, L.P., and its

affiliates (“IEP”) hold a 10% or greater ownership interest in CVR Energy, Inc. IEP is a publicly traded partnership under the symbol “IEP.”

TABLE OF CONTENTS

Statutory Provisions Involved ............................................... 1

Introduction ......................................................................... 3

Statement ............................................................................. 6

A. Statutory and regulatory background .................. 6

1. Venue for petitions for judicial review

under the Clean Air Act ................................... 6

2. Small-refinery hardship petitions under

the Clean Air Act’s RFS Program .................. 7

B. The present controversy ...................................... 11

Reasons for Denying the Petition ................................... 16

A. The decision below is correct. .............................. 17

1. The relevant administrative “actions” are

the individual denials of small-refinery

hardship petitions............................................ 18

2. EPA’s denials of the hardship petitions are

“locally or regionally applicable” actions. ..... 19

3. EPA cannot overcome the presumption

of regional-circuit review. ............................... 22

4. EPA’s arguments for D.C. Circuit review

fail...................................................................... 23

B. This case is not a suitable vehicle for

answering the venue question presented,

especially compared to other pending

petitions raising similar issues............................. 26

C. The Renewable Intervenors’ petition should

be denied in any event. ......................................... 31

Conclusion .......................................................................... 33

Appendix – 42 U.S.C. § 7545(o) ....................................... 1a

Appendix – 42 U.S.C. § 7607(b) ..................................... 27a

TABLE OF AUTHORITIES

Pages

CASES

American Rd. & Transp. Builders Ass’n v. EPA,

705 F.3d 453 (D.C. Cir. 2013) ............................ 7, 19–20

Americans for Clean Energy v. EPA,

864 F.3d 691 (D.C. Cir. 2017) ...................................... 20

ATK Launch Sys., Inc. v. EPA,

651 F.3d 1194 (10th Cir. 2011) ................................ 7, 19

Chevron U.S.A. Inc. v. EPA,

45 F.4th 380 (D.C. Cir. 2022) ....................................... 25

Clean Water Action Council of Ne. Wisc., Inc. v. EPA,

765 F.3d 749 (7th Cir. 2014) ........................................ 31

Cutter v. Wilkinson,

544 U.S. 709 (2005) ....................................................... 29

Dalton Trucking, Inc. v. EPA,

808 F.3d 875 (D.C. Cir. 2015) .......................... 20, 22, 31

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) ....................................................... 25

Ergon-West Virginia, Inc. v. EPA,

896 F.3d 600 (4th Cir. 2018) ........................................ 13

Ergon-West Virginia, Inc. v. EPA,

980 F.3d 403 (4th Cir. 2020) .................................. 10, 13

HollyFrontier Cheyenne Refin., LLC v. Renewable

Fuels Ass’n,

594 U.S. 382 (2021) ............................................... 4, 8, 11

Hunt Refin. Co. v. EPA,

90 F.4th 1107 (11th Cir. 2024) ........................... 6, 15, 28

Kentucky v. EPA,

Nos. 23-3216, 3225, 2023 WL 11871967

(6th Cir. 2023) ......................................................... 18, 22

Mercantile Nat. Bank at Dallas v. Langdeau,

371 U.S. 555 (1963) ................................................. 27, 30

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) ....................................................... 30

RMS of Georgia v. EPA,

64 F.4th 1368 (11th Cir. 2023) ..................................... 18

Sierra Club v. EPA,

47 F.4th 738 (D.C. Cir. 2022) ................................... 6, 22

Sinclair Wyoming Refin. Co. LLC v. EPA,

__ F.4th __, No. 22-1073, 2024 WL 3801747

(D.C. Cir. Aug. 14, 2024) ............ 8, 15–16, 23, 26, 31–32

Sinclair Wyoming Refin. Co. v. EPA,

887 F.3d 986 (10th Cir. 2017) ...................................... 10

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) ........................ 6, 19, 22, 31

Texas v. EPA,

983 F.3d 826 (5th Cir. 2020) .......................................... 6

Texas v. EPA,

No. 23-60069, 2023 WL 7204840

(5th Cir. May 1, 2023)................................... 7, 18, 20–21

West Virginia v. EPA,

90 F.4th 323 (4th Cir. 2024) ......................................... 25

STATUTES

42 U.S.C. § 7545(o)(2)........................................................... 7

42 U.S.C. § 7545(o)(2)(B) ............................................... 7, 18

vii

42 U.S.C. § 7545(o)(3)..................................................... 7, 18

42 U.S.C. § 7545(o)(5)........................................................... 8

42 U.S.C. § 7545(o)(7)........................................................... 7

42 U.S.C. § 7545(o)(9)(A)(ii) .................................... 9, 19, 22

42 U.S.C. § 7545(o)(9)(B)(i) ............................... 9, 17, 19, 22

42 U.S.C. § 7545(o)(9)(B)(ii) .................................... 9, 17, 19

42 U.S.C. § 7545(o)(9)(B)(iii) ............................. 9, 19, 23, 28

42 U.S.C. § 7607(b) ................... 3, 5–7, 16–19, 21–22, 24–31

REGULATIONS

40 C.F.R. § 80.1406............................................................... 7

40 C.F.R. § 80.1426............................................................... 8

40 C.F.R. § 80.1427............................................................... 7

40 C.F.R. § 80.1428............................................................... 8

40 C.F.R. § 80.1429............................................................... 8

40 C.F.R. § 80.1441(e)(2) ..................................................... 9

40 C.F.R. § 80.1451(f )(1)(i)(A)............................................. 7

72 Fed. Reg. 23,900 (May 1, 2007) ...................................... 8

72 Fed. Reg. 23,904 (May 1, 2007) ...................................... 8

75 Fed. Reg. 14,670 (Mar. 26, 2010) ................................... 8

75 Fed. Reg. 14,722 (Mar. 26, 2010) ................................... 8

In the Supreme Court of the United States

_______________

No. 23-1229

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

CALUMET SHREVEPORT REFINING, LLC, ET AL.,

Respondents.

___________________

No. 23-1230

GROWTH ENERGY, ET AL.,

Petitioners,

CALUMET SHREVEPORT REFINING, LLC, ET AL.,

Respondents.

___________________

On Petitions for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

___________________

BRIEF FOR THE SMALL REFINERY

RESPONDENTS IN OPPOSITION

____________

STATUTORY PROVISIONS INVOLVED

The Clean Air Act provides at 42 U.S.C. § 7607(b), in

relevant part, that:

Administrative proceedings and judicial review

(b) Judicial review

(1) A petition for review of action of the Administrator [of the Environmental Protection Agency] [under various enumerated provisions], or any other nationally

applicable regulations promulgated, or final action taken,

by the Administrator under this chapter may be filed only

in the United States Court of Appeals for the District of

Columbia. A petition for review of the Administrator’s

[various enumerated actions], or any other final action of

the Administrator under this chapter … which is locally

or regionally applicable may be filed only in the United

States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review

of any action referred to in such sentence may be filed only

in the United States Court of Appeals for the District of

Columbia if such action is based on a determination of

nationwide scope or effect and if in taking such action the

Administrator finds and publishes that such action is

based on such a determination.

This and other pertinent statutory provisions are

reprinted in the appendix to this brief. App., infra, 1a–33a.

INTRODUCTION

The Clean Air Act (“CAA”) determines the venue for

a petition for judicial review of administrative action by

asking whether the challenged agency action is “nationally applicable” (reviewed by the D.C. Circuit) or “locally

or regionally applicable” (reviewed by the regional circuit

courts). 42 U.S.C. § 7607(b)(1). 1 The U.S. Environmental

Protection Agency (“EPA”) believes that, when it issues a

series of individualized administrative decisions—each of

which applies to only a single regulated entity—it can convert those locally applicable decisions into one nationally

applicable action, and thereby gain access to its preferred

forum, simply by packaging together its announcement of

the individual adjudications. That is not how the CAA’s

venue provision works for the EPA actions at issue here,

as the court of appeals correctly determined.

This case concerns a type of statutory forbearance

under the CAA that affects only small petroleum refineries. Congress provided that a small refinery is entitled to

an exemption from the CAA’s Renewable Fuel Standard

(“RFS”) requirements where it can demonstrate that the

RFS would cause it “disproportionate economic hardship”

in a given compliance year. In the past, EPA acknowledged that its decisions on small-refinery hardship petitions are “quintessentially local action[s]” for purposes of

venue under Section 7606(b)(1), because they “adjudicate[ ] legal rights as to a single refinery in a single location.” EPA Motion to Dismiss 18, Advanced Biofuels

Ass’n v. EPA, No. 18-1115, Dkt. No. 1740614 (D.C. Cir.

July 13, 2018). As a result, judicial challenges to EPA

decisions on RFS hardship petitions have typically been

litigated in the regional circuit courts.

All statutory citations are to Title 42 of the United States Code

unless otherwise specified.

EPA lost a number of those challenges, including in

this Court in HollyFrontier Cheyenne Refin., LLC v.

Renewable Fuels Ass’n, 594 U.S. 382 (2021). And after a

change in presidential administrations, EPA announced

its plan to never grant small-refinery hardship relief

again. In two decision announcements in April and June

2022, EPA announced that it was denying 105 individual

small-refinery hardship petitions. And EPA was transparent about its goal to make the D.C. Circuit the only

court capable of reviewing its denial decisions: it asserted

that it had transformed those 105 quintessentially local

actions into just two national actions by publishing them

together at the same time and deciding them under the

same legal rationale.

The six small-refinery respondents here were among

those whose hardship petitions EPA denied. EPA’s decisions did not comply with the CAA and the Administrative

Procedure Act, so the small refineries petitioned for judicial review in their home circuit: the Fifth Circuit. The

court of appeals rejected EPA’s attempt to manufacture

venue in the D.C. Circuit, explaining that the relevant

administrative “actions” under the Clean Air Act are the

adjudications of the individual hardship petitions, regardless of how EPA chooses to publish those decisions. And

EPA conceded that it took those actions—as the text of

the CAA requires—by “evaluat[ing] … the data and information provided in” the individual hardship petitions.

EPA.App.14a (quoting EPA’s decision document). On the

merits, the court of appeals agreed with the small refineries that EPA’s denial decisions were unlawful for multiple

independent reasons.

The Fifth Circuit was right. EPA’s choice to publish

multiple decisions together does not affect the localized

nature of the administrative “action” taken, which is what

matters for venue under Section 7607(b)(1). And administrative agencies are always required to treat like parties

alike, so the mere fact that EPA applied the same legal

standard to all RFS hardship petitions does not make the

actions based on any “nationwide” “determination.”

This case, moreover, would be a wholly unsuitable

vehicle for this Court to review the Clean Air Act’s venue

provision. The D.C. Circuit recently agreed with the Fifth

Circuit that EPA’s RFS denial decisions were unlawful, so

EPA’s venue objection here is inconsequential. This consolidated case also involves two separate sets of adjudications, issued at different times, the second of which merely

incorporated the first by reference. That unusual sequence could complicate this Court’s review of the venue

question. And this case involves a relatively obscure provision of the Clean Air Act that—though critical to the

small refineries for whom Congress designed it—is hardly

the standard fare of Section 7607(b)(1). Granting review

here could mire the larger question of venue for the entire

Clean Air Act in the technicalities of small refineries.

If this Court is interested in considering venue under

the Clean Air Act, then other pending petitions for a writ

of certiorari concern the same venue provision but offer

much more suitable vehicles. The petitions in Oklahoma

v. EPA, No. 23-1067, and Pacificorp v. EPA, No. 23-1068,

involve a commonly recurring fact pattern under the

Clean Air Act—the rejection of a State Implementation

Plan (“SIP”)—that would offer a much better opportunity

for this Court to provide a definitive interpretation of Section 7607(b)’s venue provision in all its applications.

In all events, whether this Court chooses to review

Oklahoma and Pacificorp or not, the venue question is no

longer important to this case. So the Court should deny

the petitions for a writ of certiorari here.

STATEMENT

A. Statutory and regulatory background

1. Venue for petitions for judicial review under

the Clean Air Act

Section 7607(b)(1) governs “[j]udicial review” of “petitions for review” of EPA “action[s]” “under this chapter,”

i.e., under the Clean Air Act. That subsection allocates

venue for regulatory challenges depending on the character of the administrative “action” under review: If EPA’s

“action … under this chapter” is “nationally applicable,”

then the proper venue is the D.C. Circuit. § 7607(b)(1). If

EPA’s “action … under this chapter” is “locally or regionally applicable,” then venue is “in the United States Court

of Appeals for the appropriate circuit.” Ibid.

When the administrative action being challenged is

locally or regionally applicable, the CAA creates a “default presumption” that venue is proper in the regional

circuit court. Texas v. EPA, 829 F.3d 405, 419, 424 (5th

Cir. 2016) (“Texas 2016”). That presumption has a narrow

exception which has “two conditions.” Id. at 421. If EPA

can demonstrate both that its locally applicable action is

“based on a determination of nationwide scope or effect,”

“and” that EPA “f [ound] and publishe[d] that such action

is based on such a determination,” then venue is proper in

the D.C. Circuit. § 7607(b)(1).

The CAA’s text makes it “clear” that “[t]he court—not

EPA—determines both the scope of an action’s applicability and whether it was based on a determination of

nationwide scope or effect.” Texas v. EPA (“Texas 2020”),

983 F.3d 826, 833 (5th Cir. 2020); see Sierra Club v. EPA,

47 F.4th 738, 746 (D.C. Cir. 2022) (same); Hunt Refin. Co.

v. EPA, 90 F.4th 1107, 1113–1114 (11th Cir. 2024) (Lagoa,

J., concurring) (“courts surely must form their own judgment on the matter” of venue). The court answers those

questions by looking “to the face of ” the administrative

action that is the subject of the petition for review. American Rd. & Transp. Builders Ass’n v. EPA, 705 F.3d 453,

456 (D.C. Cir. 2013) (Kavanaugh, J.); see ATK Launch

Sys., Inc. v. EPA, 651 F.3d 1194, 1197 (10th Cir. 2011).

Thus, the relevant question for determining venue in

a CAA case is: What is the “action … under this chapter”

that EPA was authorized to take? § 7607(b)(1). To answer

that question, courts “look primarily to the text of the

statute,” specifically to the relevant CAA provision that is

“the legal source of [EPA’s] authority to take the challenged action[ ].” Texas v. EPA (“Texas 2023”), No.

23-60069, 2023 WL 7204840, at *4 (5th Cir. May 1, 2023).

2. Small-refinery hardship petitions under

the Clean Air Act’s RFS Program

a. The CAA’s RFS program requires that increasing

amounts of renewable fuels be blended each year into

the gasoline and diesel fuel sold in the United States.

§ 7545(o)(2)(B)(i)(I)–(IV). EPA sets annual renewable

fuel percentage standards based on the amount of renewable fuel that must be blended into transportation fuel to

meet the volume requirements in § 7545(o)(2), and then

establishes an RFS compliance process, § 7545(o)(3), (7).

Obligated parties—including refiners and importers of

transportation fuel—use the annual renewable fuel percentage standard to determine their own volume obligations for four categories of renewable fuel. See 40 C.F.R.

§ 80.1406. Those individual volume obligations must be

met by the annual RFS compliance deadline set by EPA.

Id. § 80.1451(f)(1)(i)(A).

Obligated parties comply with their annual RFS obligation by securing credits called renewable identification

numbers (“RINs”). 40 C.F.R. § 80.1427. A RIN is generated when a renewable fuel (like ethanol) is manufactured.

Id. § 80.1426. The RIN remains attached to the physical

volume of renewable fuel until it is blended into transportation fuel, at which point the RIN is “separated.” Id.

§§ 80.1428, 80.1429. RINs have a limited shelf life; they

can be used only for compliance for the year in which they

are generated or the next year. 42 U.S.C. § 7545(o)(5)(C).

Obligated parties must secure the necessary credits (i.e.,

separated RINs) to demonstrate RFS compliance by

either acquiring RINs through blending renewable fuels

or else by purchasing RINs from other parties that blend.

§ 7545(o)(5)(B).

b. “The RFS program reflects a carefully crafted legislative bargain to promote renewable fuels, but also to

provide an exemption mechanism for small refineries.”

Sinclair Wyoming Refin. Co. LLC v. EPA, __ F.4th __,

No. 22-1073, 2024 WL 3801747, at *10 (D.C. Cir. Aug. 14,

2024). Congress recognized that “escalating [RFS] obligations could work special burdens on small refineries,”

many of which “lack the inherent scale advantages of

large refineries” and are limited in their ability to blend

renewable fuels—or unable to blend at all. HollyFrontier

Cheyenne Refin., LLC v. Renewable Fuels Ass’n, 594 U.S.

382, 386 (2021) (cleaned up). Small refineries that cannot

separate enough RINs through their own blending are

forced to buy RINs from others on an unregulated secondary market. See 72 Fed. Reg. 23,900, 23,904 (May 1,

2007) (“Many obligated parties do not have access to renewable fuels or the ability to blend them, and so must use

credits to comply.”); 75 Fed. Reg. 14,670, 14,722 (Mar. 26,

2010) (explaining how RINs are traded on a spot market

or bought and sold through private contracts).

Congress accordingly created a “safety valve,” HollyFrontier, 594 U.S. at 387, that allows any small refinery

to petition EPA for relief from the annual RFS compli-

ance obligation by showing that compliance would cause

“disproportionate economic hardship.” § 7545(o)(9)(B)(i).

The Act requires each small refinery to petition separately for hardship relief. Ibid. Each granted petition

frees only one small refinery from its RFS obligation for

the applicable year, based on its own economic circumstances. § 7545(o)(9)(B)(i)–(ii); 40 C.F.R. § 80.1441(e)(2).

EPA must decide each small-refinery hardship petition on an individual, case-by-case basis in “consultation”

with the U.S. Department of Energy (“DOE”), and by

“consider[ing] the findings” of a 2011 DOE study on small

refineries’ economic hardship, along with “other economic

factors.” § 7545(o)(9)(A)(ii)(I), (B)(i)–(ii). In that study,

DOE: (1) found that small refineries “have particular

obstacles that would make compliance more costly than

those of large integrated companies”; (2) developed a

scoring matrix “to evaluate the full impact of [the] disproportionate economic hardship”; and (3) concluded that

many small refineries should be exempt. DOE, Small

Refinery Exemption Study: An Investigation into Disproportionate Economic Hardship 3, 32, 37 (March 2011)

(“2011 DOE Study”). 2 DOE also recognized that the hardship on small refineries would continue to grow as the

renewable-fuel blending mandates escalated. Id. at 17–18.

Congress also required EPA to decide every hardship

petition “not later than 90 days after” receipt, because

hardship petitions are important to small refineries’ ability to plan for RFS compliance. § 7545(o)(9)(B)(iii). But

EPA has failed to meet that deadline on almost 90% of

hardship petitions submitted since 2013, causing significant detrimental uncertainty for petitioning small refineries and the industry as a whole. See U.S. Government

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

small-refinery-exempt-study.pdf.

Accountability Office, Renewable Fuel Standard: Actions

Needed to Improve Decision-Making in the Small Refinery Exemption Program, GAO23104273 (Nov. 2022). 3

c. For more than a decade after the 2011 DOE

Study—until 2022—EPA consistently “relied on DOE’s

findings” of small refineries’ disproportionate economic

hardship and evaluated petitions for RFS hardship relief

by applying DOE’s “scoring matrix.” EPA.App.95a; see

id. at 8a.

The small-refinery respondents here were among the

small refineries that petitioned for hardship relief for

some or all compliance years, because each of them faces

structural disadvantages that make RFS compliance disproportionately burdensome. Back when EPA was considering each hardship petition using the scoring matrix,

EPA granted these small refineries’ hardship petitions

for several years.

For some hardship petitions submitted by other small

refineries, EPA denied relief. In some of those cases, the

denied small refineries sought judicial review. When they

did, EPA repeatedly acknowledged that its decisions

granting or denying small-refinery hardship petitions are

“quintessentially local action[s]” that must be reviewed in

the regional circuit courts. EPA Motion to Dismiss 2, 18,

Advanced Biofuels, No. 18-1115, supra (asking the D.C.

Circuit to dismiss the petition for review because review

of “individual decisions on RFS hardship petitions is in the

appropriate local circuit”).

On the merits of those challenges, EPA suffered multiple losses where it had wrongfully denied small-refinery

hardship relief. See, e.g., Ergon-West Virginia, Inc. v.

EPA, 980 F.3d 403 (4th Cir. 2020); Sinclair Wyoming

https://www.gao.gov/products/gao-23-104273.

Refin. Co. v. EPA, 887 F.3d 986 (10th Cir. 2017). Frustrated by defeat in the regional circuit courts, and after

a change in presidential administrations, EPA began

searching for a way to eliminate small-refinery hardship

relief altogether. It first changed its long-standing statutory interpretation to assert that a small refinery would

not be eligible for hardship relief unless the refinery had

received relief in every prior compliance year. This Court

rejected that new position in HollyFrontier as inconsistent with the statutory text. See 594 U.S. at 396–397.

When that effort failed, EPA went back to the drawing

board with the goals of eliminating hardship relief and

avoiding judicial review anywhere other than the D.C.

Circuit.

B. The present controversy

1. The small-refinery respondents here each petitioned EPA for RFS hardship relief for some or all of the

compliance years 2017 through 2021. EPA.App.19a nn.

26–27. EPA initially granted Wynnewood’s hardship petition for the 2017 compliance year, and it granted Calumet

Shreveport’s, Ergon Refining’s, Placid’s and Wynnewood’s hardship petitions for 2018. See EPA, Decision on

2018 Small Refinery Exemption Petitions (Aug. 9, 2019). 4

After EPA’s change in approach, though, the agency

reversed itself. In April 2022, EPA in one fell swoop retroactively denied 36 hardship petitions that it had previously granted, including petitions submitted by these

small-refinery respondents. EPA.App.189a–330a (the

“April Denials”). EPA announced those denials in a single

decision document, applying multiple sea-changes to the

agency’s longstanding approach to hardship petitions. In

https://www.regulations.gov/comment/EPA-HQ-OAR-20210566-0077#collapseAttachmentMetadata-ember186 (Tab I).

the April Denials, EPA: (a) applied a new and materially

different interpretation of several CAA terms; (b) abandoned the scoring matrix and DOE recommendations that

had been the cornerstone of all of EPA’s small-refinery

hardship decisions for more than a decade; and (c) replaced them with a new “economic theory” that small

refineries never experience disproportionate economic

hardship from the RFS, notwithstanding Congress’s statutory provision for small-refinery hardship relief. EPA.

App.237a–238a, 251a.

EPA’s new “economic theory” hypothesized that “the

RFS program cannot cause [disproportionate economic

hardship]” because RIN costs are supposedly equal for all

obligated parties regardless of their size, bargaining

power, location, or blending capability, and because obligated parties supposedly universally pass through 100%

of their RIN costs to customers in the price of their fuel.

EPA.App.212a. As appendices to the April 2022 decision

announcement, EPA sent each petitioning small refinery

a “confidential, refinery-specific appendi[x]” giving a

refinery-specific explanation for its conclusion that the

refinery could pass on its RFS costs. EPA.App.199a.

Less than two months after the April Denials, EPA in

June 2022 largely copied and pasted its new reasoning

from April into a materially identical decision document

announcing the denial of another 69 RFS hardship petitions for 33 distinct small refineries, including these small

refinery respondents’ pending hardship petitions for

some or all of 2017 and 2019–2021. EPA.App.44a–188a

(the “June Denials”). EPA accomplished that bundled

decision only by again ignoring the statutory deadline to

decide the individual hardship petitions; it held dozens

beyond the 90-day deadline so that it could deny them all

at once.

The June Denials concluded “that none of the 69 pending [small-refinery hardship] petitions for the 2016–2021

compliance years have demonstrated [disproportionate

economic hardship] caused by the cost of compliance with

the requirements of the RFS program.” EPA.App.185a.

EPA again sent each of the small refineries separate “confidential, refinery-specific appendices” explaining its conclusions on RIN-cost passthrough. EPA.App.55a.

2. The small refinery respondents filed petitions for

judicial review under the CAA challenging EPA’s April

and June Denials of their RFS hardship petitions.

Because the refineries are each headquartered, incorporated, or operate within the Fifth Circuit, they sought

review there. Two groups representing the interests of

renewable fuel producers—the petitioners in No. 23-1230

in this Court—intervened to support EPA’s denials of

hardship relief (the “Renewable Intervenors”). 5

EPA moved to dismiss the petitions for review or else

transfer them to the D.C. Circuit, asserting that because

it had bundled together its denials of the refineries’ individual RFS hardship petitions, those denials were actuRenewable Intervenors now accuse respondent Ergon-West

Virginia of “shop[ping] for a more favorable forum” by seeking review

in the Fifth Circuit instead of the Fourth Circuit. Renewable Pet. 25–

26. That charge is baseless. Neither EPA nor the Renewable Intervenors ever argued that Ergon-West Virginia’s case should be transferred to the Fourth Circuit. Perhaps that is because they knew the

Fourth Circuit was hardly an adverse forum for Ergon-West Virginia, which has won multiple challenges there to prior EPA actions

denying RFS hardship relief. E.g., Ergon-West Virginia, Inc. v. EPA,

896 F.3d 600 (4th Cir. 2018); Ergon-West Virginia, Inc. v. EPA, 980

F.3d 403 (4th Cir. 2020). More importantly, any transfer motion would

have been meritless because Ergon-West Virginia is incorporated in

Mississippi, within the Fifth Circuit. See Certificate of Interested

Persons, Ergon Refin., Inc. v. EPA, No. 22-60433 (consolidated with

No. 22-60266), Dkt. No. 1 (5th Cir. Aug. 8, 2022).

ally a “nationally applicable” action that was also “based

on a determination of nationwide scope or effect.” Motion

to Dismiss, C.A. Dkt. No. 31 in No. 22-60266 (June 22,

2022), C.A. Dkt. No. 53 in No. 22-60425 (Sept. 8, 2022). The

small refinery respondents opposed EPA’s motions,

explaining that venue is proper in the regional circuit

because hardship denial decisions are locally or regionally

applicable. Each hardship petition sought relief for only a

single refinery, and EPA’s actions on those petitions were

based on determining each refinery’s individual economic circumstances.

The Fifth Circuit denied EPA’s motion and explained

why venue is proper in that court. EPA.App.9a–15a.

EPA’s denial actions were “locally … applicable,” not “nationally applicable,” because they affected only the individual petitioning small refineries. Id. at 11a–12a. And

while EPA asserted that its actions were “based on a

determination of nationwide scope or effect,” that assertion was wrong as a matter of law. Id. at 12a–13a. EPA

conceded that it had “considered each petition on the

merits and individual refinery information.” Id. at 14a

(cleaned up). And EPA’s decision documents confirm that

the agency’s Denial actions “re[lied] on refinery-specific

determinations” about each individual refinery’s “economic hardship” criteria. Id. at 15a.

On the merits of the small refineries’ challenges, the

Fifth Circuit determined that EPA’s hardship-denial

actions issued in April and June 2022 were unlawful for

multiple independent reasons. EPA.App.16a–33a. The

Fifth Circuit explained at length why the denials were:

“(1) impermissibly retroactive; (2) contrary to law; and

(3) counter to the record evidence.” EPA.App.3a. EPA’s

Denial actions, among several other problems, had

“glosse[d] over [the refineries’] refinery-specific data

proving they operate in inefficient local markets that do

not allow for RIN cost pass-through.” EPA.App.32a.

The Renewable Intervenors filed petitions for rehearing and rehearing en banc. C.A. Dkt. Nos. 427–430, No.

22-60266 (Jan. 8, 2024). No judge requested a vote on the

rehearing petitions. EPA.App.332a–333a.

3. Some other small refineries whose RFS hardship

petitions were denied by EPA in the April and June

Denials petitioned for judicial review in the D.C. Circuit.

And still other small refineries filed petitions for review in

the regional circuits but had their petitions transferred to

the D.C. Circuit—typically (though not always) without a

substantive explanation or opinion. See, e.g., Wyoming

Refin. Co. v. EPA, No. 22-9553, Dkt. No. 10939881 (10th

Cir. Sept. 12, 2022) (transferring to the D.C. Circuit without explanation); Hunt Refining, 90 F.4th at 1113 (concluding venue was proper in the D.C. Circuit in a reasoned

opinion). As a result, the D.C. Circuit considered most of

the same legal arguments challenging EPA’s denials as

the Fifth Circuit had.

On July 26, 2024, the D.C. Circuit agreed with the

Fifth Circuit that EPA’s April and June Denials are

unlawful and must be vacated. Sinclair Wyoming, 2024

WL 3801747. Like the Fifth Circuit, the D.C. Circuit panel

unanimously held that EPA’s denials of hardship relief

were both “contrary to law and arbitrary and capricious.”

Id. at *1. The D.C. Circuit expressly agreed with the Fifth

Circuit’s “analysis and conclusion that the Denial Actions

are contrary to law.” Id. at *7 n.5.

REASONS FOR DENYING THE PETITION

The petitions for a writ of certiorari should be denied

because the court of appeals’ decision is correct, and

because the issues presented by these particular petitions

are inconsequential and idiosyncratic.

The Fifth Circuit properly applied Section 7607(b)(1)’s

venue provision to the small-refinery actions at issue here.

EPA has long acknowledged that the denial of a smallrefinery hardship petition is a locally applicable action

that must be reviewed in the petitioning refinery’s regional circuit. That’s because EPA’s actions on RFS hardship petitions are—and under the Clean Air Act, must

be—based on each petitioning refinery’s individual, local

economic circumstances. Each action on an RFS hardship

petition applies to only a single refinery in one location.

EPA observes that the circuit courts have disagreed

about how to determine venue under Section 7607(b)(1).

But this case would be a poor vehicle for addressing that

issue for multiple reasons. First, EPA’s venue objection in

these cases is no longer important: even if the refineries’

challenges to EPA’s denial actions were transferred to the

D.C. Circuit as EPA wishes, the D.C. Circuit’s recent

decision in Sinclair Wyoming proves beyond doubt that

EPA would lose those challenges on the merits for largely

the same reasons given by the Fifth Circuit.

Second, denials of RFS hardship petitions are hardly

prototypical administrative actions governed by Section

7607(b)(1). If this Court were inclined to examine the

venue provision for the entire Clean Air Act, then it should

do so in a case that presents a standard form of CAA challenge—which this case does not.

Third, even if this Court wanted to review the specific

issue of venue for judicial challenges to the denial of RFS

hardship petitions, this case would still be a bad vehicle

because it concerns not one but two EPA decision announcements, and the differences between them may

affect the outcome of the venue question under Section

7607(b)(1).

Other petitions pending before this Court present similar venue questions in a more suitable posture. See Oklahoma, No. 23-1067; Pacificorp, No. 23h-1068. Unlike in

this case, those petitions present a commonly recurring

type of EPA action under the Clean Air Act—rejection of

a SIP—and would allow this Court to give a definitive

interpretation of Section 7607(b)(1)’s venue provision.

This Court should deny certiorari in this case and allow

EPA to get on with its work of re-deciding the small refineries’ RFS hardship petitions in a lawful manner.

A. The decision below is correct.

Section 7607(b)(1) determines the venue for a petition

for review under the CAA based on the nature—national

or local—of the “action” that the statute authorized EPA

to take. And courts determine what the relevant “action”

is by examining the statutory text. Here, the CAA is clear

that the relevant administrative action is EPA’s denial of

each small refinery’s individual petition for hardship

relief. The small refineries were required to submit those

petitions only for themselves based on their own “disproportionate economic hardship[s].” § 7545(o)(9)(B)(i)–(ii).

And EPA was required to, and did, decide those petitions

by evaluating each of the small refineries’ locally applicable circumstances.

Once EPA’s individual denials are properly identified

as the relevant “action” for assessing venue, their nature

is obvious: Those individual denials are, as EPA has previously put it, “quintessentially local action[s]” because

they “adjudicate[ ] legal rights as to a single refinery in a

single location.” EPA Motion to Dismiss 18, Advanced

Biofuels, No. 18-1115, supra. And those locally applicable,

refinery-specific adjudications are based on refineryspecific determinations. EPA denied relief to each of the

small refineries here based on whether they individually

faced economic hardship. So the decision below correctly

determined that venue was proper in the regional circuits

rather than the D.C. Circuit.

1. The relevant administrative “actions” are the

individual denials of small-refinery hardship

petitions.

Courts determine venue under Section 7607(b)(1) by

“analyz[ing] the nature of the EPA’s action” challenged in

the petition for review. RMS of Georgia v. EPA, 64 F.4th

1368, 1372–1373 (11th Cir. 2023); accord EPA Pet. 12.

Specifically, courts determine whether the challenged

“action” is “nationally applicable” or “locally or regionally

applicable.” § 7607(b)(1).

But a court cannot analyze an action’s nature until it

identifies “what ‘final action’ [it is] dealing with.” Kentucky v. EPA, 2023 WL 11871967, at *2 (6th Cir. 2023).

Helpfully, the statute describes where to look: the “final

action of [EPA] under this chapter.” § 7607(b)(1) (emphasis added). “[T]his chapter” is the Clean Air Act. 42 U.S.C.

Ch. 85, Codification Note. So Section 7607(b)(1)’s textual

reference to EPA action under this chapter instructs

courts to focus on the CAA provision that provides “the

legal source of the agency’s … authority to take the challenged actions.” Texas 2023, 2023 WL 7204840, at *4.

The final EPA action “under” the CAA here is EPA’s

adjudication of individual hardship petitions. That is the

“relevant unit of administrative action” for Section

7607(b)(1). Texas 2023, 2023 WL 7204840, at *4. The CAA

authorizes EPA to take that action as the culmination of a

process: It first instructs EPA to set all refineries’ annual

renewable fuel-blending obligation. § 7545(o)(2)(B), (3)(B).

A small refinery may then petition for an “exemption”

from its individual RFS “compliance … requirements” by

demonstrating that compliance would cause it “disproportionate economic hardship.” § 7545(o)(9)(A)(ii), (B)(i). EPA

must “evaluat[e]” that petition and then grant or deny it.

§ 7545(o)(9)(B)(ii)-(iii).

Under the CAA’s text, EPA must separately consider

and decide each petition it receives: “A small refinery may

at any time petition” for an exemption, § 7545(o)(9)(B)(i)

(emphasis added), which is available “[i]n the case of a

small refinery”—singular—“that … would be subject to a

disproportionate economic hardship if required to comply

with the” RFS, § 7545(o)(9)(A)(ii)(II) (emphasis added).

The CAA instructs EPA to “evalut[e] a petition,” one at

a time, to determine whether the refinery has shown

“disproportionate economic hardship” after considering

DOE’s 2011 Study “and other economic factors.”

§ 7545(o)(9)(B)(i)-(ii) (emphasis added). The deadline for

EPA to “act on any petition” (again, singular) is indexed

to each individual petition: “not later than 90 days after

the date of receipt of the petition.” § 7545(o)(9)(B)(iii)

(emphasis added).

2. EPA’s denials of the hardship petitions are “locally

or regionally applicable” actions.

Whether EPA’s denials of the small refinery respondents’ hardship petitions were “nationally applicable” or

“locally or regionally applicable,” § 7607(b)(1), “turns on

the legal impact of the action as a whole,” Texas 2016, 829

F.3d at 419, “not” on the action’s ancillary “effects,” ATK

Launch, 651 F.3d at 1197; see also American Road, 705

F.3d at 456 (Kavanaugh, J.) (declining to consider an

action’s “practical effects”). For example, the D.C. Circuit

concluded that “EPA’s approval of a 2011 California SIP

revision” was a “ ‘locally or regionally applicable’ action”

because it regulated only entities in California. American

Road, 705 F.3d at 455; see also Dalton Trucking, Inc. v.

EPA, 808 F.3d 875, 880 (D.C. Cir. 2015) (California-only

preemption waiver was “not nationally applicable”). The

Fifth Circuit reached the same conclusion for three jointly

published SIP denials because, though announced together, each denial “involve[d] only the regulation of

Texas, Louisiana, and Mississippi emission sources and

ha[d] legal consequences only for … facilities” in those

states. Texas 2023, 2023 WL 7204840, at *5.

When EPA publishes annual renewable-fuel blending

obligations for the entire industry, that is a nationally

applicable action and any challenge to it goes to the D.C.

Circuit. See, e.g., Americans for Clean Energy v. EPA,

864 F.3d 691 (D.C. Cir. 2017). But when EPA grants or

denies a small refinery’s hardship petition, that is a “quintessentially local action,” as EPA repeatedly acknowledged before it started attempting to manufacture venue

in the D.C. Circuit. E.g., EPA Motion to Dismiss 10,

Advanced Biofuels, No. 18-1115, supra; EPA Brief 15,

Producers of Renewables United for Integrity Truth and

Transparency v. EPA (“PRUITT”), No. 18-1202, Dkt.

No. 1775897 (D.C. Cir. Mar. 4, 2019) (same); EPA Brief

2–3, EPA Reply in Support of Motion to Dismiss 2, Lion

Oil Co. v. EPA, No. 14-3405, Dkt. No. 4227218 (8th Cir.

Dec. 17, 2014) (“denial of [a] small refinery exemption

petition is locally applicable” because the “petition only

requested relief for one refinery”).

Each of the small-refinery respondents’ hardship

petitions “only requested relief for one refinery.” EPA

Reply 2, Lion Oil, No. 14-3405, supra. And EPA’s denials

of those petitions are each a “decision with respect to a

particular small refinery’s request,” that “adjudicates

legal rights as to that single small refinery in its single

location.” EPA Brief 15, PRUITT, No. 18-1202, supra.

EPA’s decisions on the small refineries’ hardship petitions “involve only the regulation of ” their individual

refineries and “have legal consequences only for [those]

facilities.” Texas 2023, 2023 WL 7204840, at *5. Those are

locally applicable actions reviewable only in the regional

circuits.

Congress’s decision in Section 7607(b)(1) to channel

judicial review of EPA’s hardship decisions to the appropriate regional circuit courts is important to the sound

administration of the CAA. Small refineries typically

claim disproportionate hardship by demonstrating that

they face unique burdens related to their local circumstances and market conditions. For example, some small

refineries have limited opportunities to blend renewable

fuel; their fuel goes into pipelines that prohibit blended

fuel. Appellant’s Brief 17, No. 22-60266, C.A. Dkt. No. 270

(Mar. 7, 2023). And while many refineries operate in fuels

markets indexed to the national market, Calumet Shreveport operates in a “micro-market” that “operates differently than national markets.” Id. at 69. Regional circuit

courts are best equipped to evaluate whether EPA adequately considered those sort of local market conditions.

See, e.g., EPA.App.31a (explaining why EPA’s decision

was arbitrary and capricious for failing to engage with a

small refinery’s evidence about local fuels markets).

EPA’s position, by contrast would force all refineries

nationwide to bring their court challenges exclusively to

the D.C. Circuit to be considered alongside dozens of

other refineries, as in Sinclair Wyoming. Being forced to

litigate in that way has made it difficult for refineries in

joint briefing to draw attention to their particular local

circumstances that make hardship relief appropriate.

3. EPA cannot overcome the presumption of regionalcircuit review.

Because EPA’s denials of the small refinery respondents’ petitions are “locally or regionally applicable action[s], Section 7607(b)(1)’s default presumption “requires

review in th[e] [regional] circuit.” Texas 2016, 829 F.3d at

424; Kentucky, 2023 WL 11871967, at *3. EPA could overcome that presumption only by convincing this Court that

its denials were “based on a determination of nationwide

scope or effect.” § 7607(b)(1); see p. 6, supra. Contrary to

EPA’s implication (Pet. 12–13) that it may choose its preferred venue, courts assess the issue “de novo” and without deference to the agency. Texas 2016, 829 F.3d at 421;

see Dalton Trucking, 808 F.3d at 881; Sierra Club, 47

F.4th at 746.

EPA cannot make that showing for two independent

but related reasons. First, the CAA requires hardshippetition decisions to be based on the “determin[ation]”

whether each small refinery individually “would be subject to disproportionate economic hardship if required to

comply with the” RFS. § 7545(o)(9)(A)(ii)(II), (B)(i). EPA

cannot legally determine whether a small refinery is disproportionately economically impacted without basing

that determination on refinery-specific economic factors

that are local in scope and effect.

Second, the record shows that EPA in fact based its

denial of the small refineries’ hardship petitions on individualized determinations about each refinery’s specific

facts and data: EPA explained that it had “completed a

thorough evaluation of the data and information provided

in the [hardship] petitions, supplemental submissions, and

comments to determine if any of the petitioners have

demonstrated that the cost of compliance with the RFS is

the cause of their alleged [hardship].” EPA.App.94a–95a.

To be sure, EPA hypothesized that every small refinery

would suffer no burden from the RFS because it could

pass on its RIN costs. See Sinclair Wyoming, 2024 WL

3801747 at *6 (correctly describing “EPA’s passthrough

theory”) (emphasis added). But for EPA to test that

hypothesis and complete the hardship adjudications, EPA

had to “carefully review[ ] data, contracts, and other information from small refineries” before it could assert “that

[its new economic theories] applie[d].” EPA.App.98a–99a.

Even then, EPA’s conclusions were petition-specific: “we

find ... that [hardship] is not demonstrated in the 69 [hardship] petitions EPA has evaluated.” EPA.App.100a (emphasis added).

In short, EPA based its ultimate denial actions on

determinations about local facts and data. It could not

have complied with the CAA without doing so. EPA did

not and cannot rebut the presumption that these locally

applicable actions should be reviewed in a regional circuit.

4. EPA’s arguments for D.C. Circuit review fail.

EPA offers various reasons for its new, flip-flopped

position that only the D.C. Circuit can review hardship

actions. None is persuasive.

a. First, EPA contends that the April and June Denials are “nationally applicable” because they announced

decisions together on several hardship petitions submitted by several refineries located in different places.

EPA.App.185a–188a (“This final action denies 69 petitions … for over 30 small refineries.”); EPA.App.327a–

330a (same for 36 petitions). It’s notable that EPA accomplished that bundling only by breaking the law and refusing to decide each hardship petition within 90 days of

submission, as the CAA requires. § 7545(o)(9)(B)(iii).

Even more important, EPA’s observation about the

various administrative actions bundled together in the

April and June Denials is irrelevant to venue. EPA’s

argument simply assumes that the relevant administrative “action” for purposes of Section 7607(b)(1) was the

decision documents themselves. It was not. For all the

reasons explained above, the agency actions authorized

“under this chapter” were adjudications of individual hardship petitions submitted by a single refinery for itself.

EPA asserts (Pet. 13) that the April and June decision

documents are “two agency actions” for venue purposes,

but EPA does not support that assertion with any legal

argument. In fact, the government entirely skips over the

statute’s foundational threshold question: What is the

agency action under review? The statutory text looks to

the “action under this chapter” that EPA was authorized

to take—not whether EPA chooses to announce its

actions separately or bundle multiple actions together and

announce them in a single decision document.

b. EPA next asserts that these were “national”

actions because it applied its new interpretation of the

hardship standard and its new economic hypothesis to all

of the petitioning small refineries. See EPA Pet 10 (arguing that the denials “are ‘nationally applicable’ because

they apply a uniform methodology to small refineries

across the country.”); EPA.App.187a–188a (“EPA’s revised interpretation of the relevant CAA provisions and

the RIN discount and RIN cost passthrough principles …

are applicable to all small refineries”). That is nothing less

than an argument that every EPA action is nationally

applicable—because every action is traceable to a uniform

statutory standard, if nothing else. As the Fourth Circuit

has recognized in rejecting a very similar argument from

EPA: “if application of a national standard … were the

controlling factor, there never could be a local or regional

action” because every EPA action “purportedly applies a

national standard created by the national statute and its

national regulations.” West Virginia v. EPA, 90 F.4th 323.

329–330 (4th Cir. 2024); see also Chevron U.S.A. Inc. v.

EPA, 45 F.4th 380, 387 (D.C. Cir. 2022) (recognizing that

even “locally or regionally applicable actions may require

interpretation of the Clean Air Act’s statutory terms”).

Indeed, if EPA had failed to apply a uniform methodology—if it had failed to treat like cases alike by applying

the same statutory interpretation and analytical framework to all petitioning parties—then it would violate the

Administrative Procedure Act. See Encino Motorcars,

LLC v. Navarro, 579 U.S. 211, 212 (2016) (an agency’s

“unexplained inconsistency” is “arbitrary and capricious”). Simply applying a uniform standard (statutory or

regulatory) to individual fact patterns “does not transform a locally applicable action into a nationally applicable

one.” Chevron, 45 F.4th at 387.

c. EPA also attempts to argue that, even if the April

and June Denials were locally or regionally applicable,

they were “based on a determination of nationwide scope

or effect” for the same reasons discussed above. But those

arguments are wrong for the reasons already explained.

Here again, EPA simply assumes (wrongly) that the decision documents are the relevant “action” under Section

7607(b). Moreover, EPA’s primary rationale—that the

April and June Denials denied multiple petitions from

refineries in various places—was not a “determination” at

all. EPA doesn’t argue (and couldn’t plausibly argue) that

it relied on the number of hardship petitions submitted or

the refineries’ disparate locales to decide whether to grant

hardship relief.

EPA’s uniform-standard rationale once again proves

too much. As just noted, the Administrative Procedure

Act compelled EPA in every action to apply a uniform

approach to similarly situated regulated parties. So

EPA’s application of a uniform approach tells this Court

nothing about whether the decisions were based on local

or national determinations.

B. This case is not a suitable vehicle for answering

the venue question presented, especially compared

to other pending petitions raising similar issues.

The petitions for a writ of certiorari should be denied

for the additional reason that this case has multiple vehicle problems that could burden this Court’s ability to

effectively analyze the venue question. If the Court were

inclined to review the circuit courts’ disagreement about

the application of Section 7607(b)(1), then it should do so

in the Oklahoma or Pacificorp cases that present similar

issues in a cleaner posture.

1. The first and most significant problem with the

petitions here is that, after Sinclair Wyoming, petitioners

can no longer claim that their question presented—which

court should review of the April and June 2022 Denials—

is important enough to warrant this Court’s review. The

D.C. Circuit’s recent decision expressly agreeing with the

Fifth Circuit’s reasoning on the merits means that EPA’s

venue objection is now inconsequential. The D.C. Circuit,

like the Fifth Circuit, concluded that EPA’s individual

denials of the petitioning small refineries’ hardship petitions were “contrary to law and arbitrary and capricious.”

Sinclair Wyoming, 2024 WL 3801747.

The parties and the circuit courts have already expended enormous time and resources to thoroughly evaluate EPA’s Denials. Granting the government’s petition

would likely prompt EPA to further delay its work redeciding the hardship petitions on remand, and it would

risk throwing out the Fifth Circuit’s efforts on this case

with no possible benefit to either party. EPA has nothing

to gain in this Court even if it persuaded the Court that

the D.C. Circuit was the proper venue; the only result of

transfer would be another loss for the government on the

merits, with the D.C. Circuit adopting the same reasoning

as the Fifth Circuit here. Those merits are not even arguably before the Court in this case because both the government’s and the Renewable Intervenors’ certiorari

petitions are limited exclusively to the venue question.

And venue “is a separate and independent matter.” Mercantile Nat. Bank at Dallas v. Langdeau, 371 U.S. 555,

558 (1963).

Second, this case is a wholly unsuitable vehicle for

reviewing Section 7607(b)(1)—the venue provision that

governs legal challenges for the entire Clean Air Act—

because it involves a relatively obscure CAA provision. To

be sure, RFS hardship relief is incredibly important to the

small refineries for which Congress created it. But the

exemption provision implicates only the Nation’s smallest

refineries, and only in certain years when they experience

disproportionate economic hardship. If this Court is going

to address Section 7607(b)(1), then it should do so in a case

that implicates a common and frequently recurring type

of CAA challenge. The petitions in Oklahoma and Pacificorp, concerning challenges to SIP denials, provide that

opportunity. This case does not.

Third, if the Court took up this case, it is not clear that

the Court could definitively resolve the circuits’ disagreements over Section 7607(b)(1) or even conclusively determine venue for future RFS cases. EPA’s approach here is

a historical aberration. Until April 2022, “the regional circuits, not th[e D.C. Circuit]” “reviewed EPA actions on

small refinery exemption requests, except where” a petitioning small refinery chose to litigate in the D.C. Circuit

and EPA acquiesced. EPA Brief 15–16, PRUITT, No.

18-1202, supra. EPA’s approach in the April and June

Denials—to bundle together several locally applicable

adjudications, and to simultaneously announce a new regulatory approach and then apply it in the same adjudication decision in April 2022—was a novel method of proceeding born from EPA’s violations of the CAA, which

requires individualized decisionmaking on a 90-day timeframe. § 7545(o)(9)(B)(iii).

EPA’s novel approach resulted in the Eleventh Circuit

providing what is essentially a one-off answer to the venue

question, tied heavily to the particular circumstances of

EPA’s decisions here. That court accepted EPA’s assertion that the April and June decision documents were the

relevant administrative “actions” for Section 7607(b)(1)

only because EPA bundled together multiple hardship

denials and “announced a new, universally applicable

approach to evaluating hardship petitions.” Hunt Refining, 90 F.4th at 1112. At oral argument, the panel suggested that neither bundling nor announcing a new

standard would be warranted for the next round of hardship decisions, because EPA would already “have a standard” (RIN-cost passthrough) that it would simply apply to

each individual future petition. See Oral Argument Audio

30:35–31:20, Dkt. No. 111, Hunt Refining, Nos. 22-11617

& 22-12535 (11th Cir. July 27, 2023). In other words, the

Eleventh Circuit appeared to give EPA a one-time-only

ticket to the D.C. Circuit because of the specific configuration of EPA’s decisions here.

EPA’s aberrational approach limits the impact of any

venue guidance that this Court might provide here. This

Court’s review of the venue issue in this case would necessarily be tied to the exceptional factual scenario where

EPA disregarded the 90-day statutory deadline for hardship petitions so that it could apply a brand-new approach

to adjudicating those hardship petitions. It is decidedly

unclear whether that circumstance will ever arise again.

Moreover, EPA’s exceptional (and unlawfully late)

“bundling” of hardship decisions in this case would needlessly complicate this Court’s review of the question presented. If, as EPA contends, what makes D.C. Circuit

review appropriate here is the combination of devising a

new methodology and bundling otherwise local actions

together, then at most half of this case would belong in the

D.C. Circuit. Only the decision document announcing the

April 2022 Denials could possibly be characterized as

EPA applying a new adjudicatory approach. The June

Denials were merely “consistent with the April 2022

[hardship] Denial[s].” EPA.App.79a. EPA did nothing

more than reassert and apply the reasoning from the

April Denials; the June Denials were not based on anything new. The June Denials as thus akin to EPA applying

an existing published regulation to a regulated party’s

individualized facts in an individual adjudication—classic

locally applicable action.

Even on EPA’s venue theory, then, the Fifth Circuit’s

venue ruling was still correct for the small refineries’ challenge to the June 2022 Denials. But no party to this case—

and no court—has addressed what should happen if the

April and June Denials belong in different venues. This

Court should not be the first. See Cutter v. Wilkinson, 544

U.S. 709, 719 n.7 (2005).

2. If this Court is inclined to review the circuit courts’

disagreement over venue under Section 7607(b)(1), then

the pending petitions in Oklahoma and Pacificorp present that issue without the same vehicle defects. Those

petitions seek review of the deeper split over the meaning

of “action” in Section 7607(b)(1) and the effect of EPA’s

bundling. Oklahoma Pet. i, 10–11, 16–18, 27–35, No.

23-1067; Pacificorp Pet. i, 2, 23–26, 35–36, No. 23-1068;

see also EPA.Pet.20–22 (discussing those petitions and

the deeper circuit split). And those petitions would provide a better, cleaner opportunity to address venue.

The government insists that this case provides a “suitable vehicle” because the court of appeals “below squarely

addressed both statutory bases for transfer to the D.C.

Circuit.” EPA Pet. 23. True, the Fifth Circuit did reject

both of EPA’s venue arguments: that the Denials were

“nationally applicable” or alternatively “based on a determination of nationwide scope or effect.” But the court did

so where EPA made only the flimsiest assertion that its

individual refinery adjudications were actually based on a

nationwide determination about every refinery’s economic condition. And while the Tenth Circuit did not have

occasion to reach the nationwide-scope-or-effect question

in Oklahoma and Pacificorp, this Court has the benefit of

the Fourth, Fifth, and Sixth Circuits’ opinions, all of which

reached that issue in the context of SIP denials. See

Oklahoma Cert. Reply 6, No. 23-1067.

The government next contends that this case is “a better vehicle for the Court to clarify the proper application

of Section 7607(b)(1)” because the Fifth Circuit “issued a

final judgment disposing of the case” on the merits. EPA

Brief in Opp. 20, Oklahoma, No. 23-1067, Pacificorp, No.

23-1068. But because the issue here is venue, the government has it backward. A full merits adjudication should

give the Court pause when it is asked to review only a

venue question. As this Court has explained, venue “is a

separate and independent matter, anterior to the merits

and not enmeshed” in them. Langdeau, 371 U.S. at 558.

As an “anterior” matter, courts should resolve venue

prior to the merits where possible. This Court did just

that in National Association of Manufacturers v. Depart-

ment of Defense, 583 U.S. 109 (2018), when it resolved a

split before either case was decided on the merits.6

The petitions in Oklahoma and Pacificorp provide an

opportunity for this Court to address all of the relevant

venue issues without sacrificing the substantial party and

judicial resources that have already been spent here. 7

C. The Renewable Intervenors’ petition should be denied

in any event.

No matter what this Court might do with the government’s petition for a writ of certiorari in this case, the

Renewable Intervenors’ petition should be denied.

The Renewable Intervenors never had any plausible

interest in this case to begin with. They are not obligated

parties for the RFS, and EPA’s decisions in 2022 denying

hardship relief to some of the Nation’s smallest refineries

for past compliance years (2019–2021) will have no impact

on demand for the renewable fuels that Intervenors produce. That is why the D.C. Circuit recently held that some

of these same renewable-fuel groups lack standing to

advocate in favor of RFS hardship denials. See Sinclair

Wyoming, 2024 WL 3801747 at *19–21. That court unaniEPA has occasionally argued that Section 7607(b)(1)’s venue

instructions are jurisdictional, but it does not do so here. And every

court of appeals to address the issue has concluded that Section

7607(b)(1) is “not jurisdictional.” Clean Water Action Council of Ne.

Wisc., Inc. v. EPA, 765 F.3d 749, 751 (7th Cir. 2014); see Texas 2016,

829 F.3d at 418; Dalton Trucking, 808 F.3d at 879.

If this Court ultimately decides to grant the government’s petition in this case, then it should also grant the Oklahoma and Pacificorp petitions. As the government notes, “[q]uestions concerning

Section 7607(b)(1) have arisen repeatedly in connection with a variety

of EPA actions.” EPA Brief in Opp. 20, Oklahoma, No. 23-1067,

Pacificorp, No. 23-1068. If the Court is going to answer those venue

questions, it should do so with the benefit of the ability to consider a

variety of the EPA actions in which the question arises.

mously determined that the renewable intervenors in that

case had not offered any plausible showing that EPA’s

decisions on small-refinery hardship relief would affect

their interests. Ibid.

What’s more, the Renewable Intervenors certainly

have no stake in the venue issue that is the only question

presented to this Court. Renewable Intervenors themselves have said that their interest in this case is limited

to “EPA’s implementation of the RFS program,” ostensibly to “ensur[e] that the renewable fuel standards are not

unlawfully reduced by [small refinery exemptions].”

Motion to Intervene 6, C.A. Dkt. No. 214, No. 22-60266

(Feb. 17, 2023). The Renewable Intervenors’ interest is

thus confined to the merits of EPA’s Denial decisions—

not where those Denial decision are reviewed. But neither

the Renewable Intervenors nor EPA has asked this Court

to review those merits in this case. And like EPA, the

Renewable Intervenors cannot claim after Sinclair Wyoming that the merits of this case will be affected by which

court hears it.

Even if the Renewable Intervenors had some vague

interest in the venue for challenges to future RFS hardship denial decisions, the government more than adequately represents that interest in this Court. It is the

government that wants to litigate future challenges to its

RFS actions exclusively in the D.C. Circuit, for reasons of

its own convenience. And no party has more experience

litigating federal statutory questions before this Court.

The Renewable Intervenors’ petition makes clear that

they do not offer any unique or useful insight into the

interpretation or operation of this federal venue statute.

Their petition does not materially add to EPA’s, so granting it would only needlessly complicate briefing and argument in this Court.

Given the Renewable Intervenors’ lack of any discernible interest in the venue question and the D.C. Circuit’s

doubts about their standing, this Court has ample reason

to deny the Renewable Intervenors’ petition regardless of

its decision on EPA’s petition.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted,

LeAnn M. Johnson Koch

Alexandra M. Bromer

Jonathan G. Hardin

Aimee E. Ford

PERKINS COIE LLP

Eric Wolff

PERKINS COIE LLP

1201 3rd Avenue

Suite 900

Seattle, WA 98101

Michael R. Huston

Counsel of Record

Karl J. Worsham

Jordan M. Buckwald

PERKINS COIE LLP

2525 E. Camelback Road,

Suite 500

Phoenix, AZ 85016-4227

(202) 434-1630

mhuston@perkinscoie.com

Sopen Shah

PERKINS COIE LLP

33 E. Main Street Suite 201

Madison, WI 53703

August 27, 2024

Statutory Appendix

TABLE OF CONTENTS

42 U.S.C. § 7545(o) ............................................................ 1a

42 U.S.C. § 7607(b) .......................................................... 27a

42 U.S.C. § 7545

Regulations of fuels

(o) Renewable fuel program

(1) Definitions

In this section:

(A) Additional renewable fuel

The term “additional renewable fuel” means fuel that

is produced from renewable biomass and that is used

to replace or reduce the quantity of fossil fuel present

in home heating oil or jet fuel.

(B) Advanced biofuel

(i) In general

The term “advanced biofuel” means renewable fuel,

other than ethanol derived from corn starch, that has

lifecycle greenhouse gas emissions, as determined by

the Administrator, after notice and opportunity for

comment, that are at least 50 percent less than baseline lifecycle greenhouse gas emissions.

(ii) Inclusions

The types of fuels eligible for consideration as “advanced biofuel” may include any of the following:

(I) Ethanol derived from cellulose, hemicellulose,

or lignin.

(II) Ethanol derived from sugar or starch (other

than corn starch).

(III) Ethanol derived from waste material, including crop residue, other vegetative waste material, animal waste, and food waste and yard waste.

(IV) Biomass-based diesel.

(V) Biogas (including landfill gas and sewage waste

treatment gas) produced through the conversion of organic matter from renewable biomass.

(VI) Butanol or other alcohols produced through

the conversion of organic matter from renewable biomass.

(VII) Other fuel derived from cellulosic biomass.

The term “baseline lifecycle greenhouse gas emissions” means the average lifecycle greenhouse gas

emissions, as determined by the Administrator, after

notice and opportunity for comment, for gasoline or

diesel (whichever is being replaced by the renewable

fuel) sold or distributed as transportation fuel in 2005.

(D) Biomass-based diesel

The term “biomass-based diesel” means renewable

fuel that is biodiesel as defined in section 13220(f) of

this title and that has lifecycle greenhouse gas emissions, as determined by the Administrator, after notice and opportunity for comment, that are at least 50

percent less than the baseline lifecycle greenhouse gas

emissions. Notwithstanding the preceding sentence,

renewable fuel derived from co-processing biomass

with a petroleum feedstock shall be advanced biofuel

if it meets the requirements of subparagraph (B), but

is not biomass-based diesel.

(E) Cellulosic biofuel

The term “cellulosic biofuel” means renewable fuel derived from any cellulose, hemicellulose, or lignin that

is derived from renewable biomass and that has lifecycle greenhouse gas emissions, as determined by the

Administrator, that are at least 60 percent less than

the baseline lifecycle greenhouse gas emissions.

(F) Conventional biofuel

The term “conventional biofuel” means renewable fuel

that is ethanol derived from corn starch.

(G) Greenhouse gas

The term “greenhouse gas” means carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons,9 sulfur hexafluoride. The Administrator may

include any other anthropogenically-emitted gas that

is determined by the Administrator, after notice and

comment, to contribute to global warming.

(H) Lifecycle greenhouse gas emissions

The term “lifecycle greenhouse gas emissions” means

the aggregate quantity of greenhouse gas emissions

(including direct emissions and significant indirect

emissions such as significant emissions from land use

changes), as determined by the Administrator, related

to the full fuel lifecycle, including all stages of fuel and

feedstock production and distribution, from feedstock

generation or extraction through the distribution and

delivery and use of the finished fuel to the ultimate

consumer, where the mass values for all greenhouse

gases are adjusted to account for their relative global

warming potential.

(I)

Renewable biomass

The term “renewable biomass” means each of the following:

(i) Planted crops and crop residue harvested

from agricultural land cleared or cultivated at any

time prior to December 19, 2007, that is either actively

managed or fallow, and nonforested.

(ii) Planted trees and tree residue from actively

managed tree plantations on non-federalௗ10 land

cleared at any time prior to December 19, 2007,

including land belonging to an Indian tribe or an Indian individual, that is held in trust by the United

States or subject to a restriction against alienation imposed by the United States.

(iii) Animal waste material and animal byproducts.

(iv) Slash and pre-commercial thinnings that are

from non-federalௗ10 forestlands, including forestlands

belonging to an Indian tribe or an Indian individual,

that are held in trust by the United States or subject

to a restriction against alienation imposed by the

United States, but not forests or forestlands that are

ecological communities with a global or State ranking

of critically imperiled, imperiled, or rare pursuant to a

State Natural Heritage Program, old growth forest, or

late successional forest.

(v) Biomass obtained from the immediate vicinity

of buildings and other areas regularly occupied by

people, or of public infrastructure, at risk from wildfire.

(vi) Algae.

(vii) Separated yard waste or food waste, including

recycled cooking and trap grease.

(J) Renewable fuel

The term “renewable fuel” means fuel that is produced

from renewable biomass and that is used to replace or

reduce the quantity of fossil fuel present in a transportation fuel.

(K) Small refinery

The term “small refinery” means a refinery for which

the average aggregate daily crude oil throughput for a

calendar 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.

(L) Transportation fuel

The term “transportation fuel” means fuel for use in

motor vehicles, motor vehicle engines, nonroad vehicles, or nonroad engines (except for ocean-going vessels).

(2) Renewable fuel program

(A) Regulations

(i) In general

Not later than 1 year after August 8, 2005, the Administrator shall promulgate regulations to ensure that

gasoline sold or introduced into commerce in the

United States (except in noncontiguous States or territories), on an annual average basis, contains the applicable volume of renewable fuel determined in accordance with subparagraph (B). Not later than 1 year

after December 19, 2007, the Administrator shall revise the regulations under this paragraph to ensure

that transportation fuel sold or introduced into commerce in the United States (except in noncontiguous

States or territories), on an annual average basis, contains at least the applicable volume of renewable fuel,

advanced biofuel, cellulosic biofuel, and biomass-based

diesel, determined in accordance with subparagraph

(B) and, in the case of any such renewable fuel produced from new facilities that commence construction

after December 19, 2007, achieves at least a 20 percent

reduction in lifecycle greenhouse gas emissions compared to baseline lifecycle greenhouse gas emissions.

(ii) Noncontiguous State opt-in

(I) In general

On the petition of a noncontiguous State or territory,

the Administrator may allow the renewable fuel program established under this subsection to apply in the

noncontiguous State or territory at the same time or

any time after the Administrator promulgates regulations under this subparagraph.

(II) Other actions

In carrying out this clause, the Administrator may—

(aa) issue or revise regulations under this paragraph;

(bb) establish applicable percentages under

paragraph (3);

(cc) provide for the generation of credits under

paragraph (5); and

(dd) take such other actions as are necessary to

allow for the application of the renewable fuels program in a noncontiguous State or territory.

(iii) Provisions of regulations

Regardless of the date of promulgation, the regulations promulgated under clause (i)—

(I) shall contain compliance provisions applicable to

refineries, blenders, distributors, and importers, as

appropriate, to ensure that the requirements of this

paragraph are met; but

(II) shall not—

(aa) restrict geographic areas in which renewable fuel may be used; or

(bb) impose any per-gallon obligation for the

use of renewable fuel.

(iv) Requirement in case of failure to promulgate regulations

If the Administrator does not promulgate regulations

under clause (i), the percentage of renewable fuel in

gasoline sold or dispensed to consumers in the United

States, on a volume basis, shall be 2.78 percent for calendar year 2006.

(B) Applicable volumes

(i) Calendar years after 2005

(I) Renewable fuel

For the purpose of subparagraph (A), the applicable

volume of renewable fuel for the calendar years 2006

through 2022 shall be determined in accordance with

the following table:

Calendar year: Applicable volume of renewable

௏

fuel (in billions of gallons):

௏2006

௏2007

௏2008

௏2009

௏2010

௏2011

௏2012

௏2013

௏2014

௏2015

௏2016

௏2017

௏2018

௏2019

௏2020

௏2021

௏2022

4.0

4.7

9.0

11.1

12.95

13.95

15.2

16.55

18.15

20.5

22.25

24.0

26.0

28.0

30.0

33.0

36.0

(II) Advanced biofuel

For the purpose of subparagraph (A), of the volume of

renewable fuel required under subclause (I), the

applicable volume of advanced biofuel for the calendar

years 2009 through 2022 shall be determined in accordance with the following table:

Calendar Year:

௏

Applicable volume of advanced

biofuel (in billions of gallons):

0.6

0.95

1.35

2.0

2.75

3.75

5.5

7.25

9.0

11.0

13.0

15.0

18.0

21.0

௏2009

௏2010

௏2011

௏2012

௏2013

௏2014

௏2015

௏2016

௏2017

௏2018

௏2019

௏2020

௏2021

௏2022

(III) Cellulosic biofuel

For the purpose of subparagraph (A), of the volume of

advanced biofuel required under subclause (II), the

applicable volume of cellulosic biofuel for the calendar

years 2010 through 2022 shall be determined in accordance with the following table:

Calendar year:

௏

௏2010

௏2011

Applicable volume of cellulosic

biofuel (in billions of gallons):

0.1

0.25

Calendar year:

௏

Applicable volume of cellulosic

biofuel (in billions of gallons):

0.5

1.0

1.75

3.0

4.25

5.5

7.0

8.5

10.5

13.5

16.0

௏2012

௏2013

௏2014

௏2015

௏2016

௏2017

௏2018

௏2019

௏2020

௏2021

௏2022

(IV) Biomass-based diesel

For the purpose of subparagraph (A), of the volume of

advanced biofuel required under subclause (II), the

applicable volume of biomass-based diesel for the calendar years 2009 through 2012 shall be determined in

accordance with the following table:

Calendar year:

௏

Applicable volume of biomassbased diesel (in billions

of gallons):

௏2009

௏2010

௏2011

௏2012

0.5

0.65

0.80

1.0

(ii) Other calendar years

For the purposes of subparagraph (A), the applicable

volumes of each fuel specified in the tables in clause (i)

10a

for calendar years after the calendar years specified in

the tables shall be determined by the Administrator,

in coordination with the Secretary of Energy and the

Secretary of Agriculture, based on a review of the implementation of the program during calendar years

specified in the tables, and an analysis of—

(I) the impact of the production and use of renewable fuels on the environment, including on air

quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water

supply;

(II) the impact of renewable fuels on the energy

security of the United States;

(III) the expected annual rate of future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel

and biomass-based diesel);

(IV) the impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renewable fuel, and the sufficiency of infrastructure to

deliver and use renewable fuel;

(V) the impact of the use of renewable fuels on

the cost to consumers of transportation fuel and on

the cost to transport goods; and

(VI) the impact of the use of renewable fuels on

other factors, including job creation, the price and

supply of agricultural commodities, rural economic

development, and food prices.

The Administrator shall promulgate rules establishing the applicable volumes under this clause no later

than 14 months before the first year for which such

applicable volume will apply.

11a

(iii) Applicable volume of advanced biofuel

For the purpose of making the determinations in

clause (ii), for each calendar year, the applicable volume of advanced biofuel shall be at least the same percentage of the applicable volume of renewable fuel as

in calendar year 2022.

(iv) Applicable volume of cellulosic biofuel

For the purpose of making the determinations in

clause (ii), for each calendar year, the applicable volume of cellulosic biofuel established by the Administrator shall be based on the assumption that the Administrator will not need to issue a waiver for such

years under paragraph (7)(D).

(v) Minimum applicable volume of biomassbased diesel

For the purpose of making the determinations in

clause (ii), the applicable volume of biomass-based diesel shall not be less than the applicable volume listed

in clause (i)(IV) for calendar year 2012.

(3) Applicable percentages

(A) Provision of estimate of volumes of gasoline sales

Not later than October 31 of each of calendar years

2005 through 2021, the Administrator of the Energy

Information Administration shall provide to the Administrator of the Environmental Protection Agency

an estimate, with respect to the following calendar

year, of the volumes of transportation fuel, biomassbased diesel, and cellulosic biofuel projected to be sold

or introduced into commerce in the United States.

12a

(B) Determination of applicable percentages

(i) In general

Not later than November 30 of each of calendar years

2005 through 2021, based on the estimate provided under subparagraph (A), the Administrator of the Environmental Protection Agency shall determine and

publish in the Federal Register, with respect to the

following calendar year, the renewable fuel obligation

that ensures that the requirements of paragraph (2)

are met.

(ii) Required elements

The renewable fuel obligation determined for a calendar year under clause (i) shall—

(I) be applicable to refineries, blenders, and importers, as appropriate;

(II) be expressed in terms of a volume percentage

of transportation fuel sold or introduced into commerce in the United States; and

(III) subject to subparagraph (C)(i), consist of a

single applicable percentage that applies to all categories of persons specified in subclause (I).

In determining the applicable percentage for a calendar year, the Administrator shall make adjustments—

(i) to prevent the imposition of redundant obligations on any person specified in subparagraph

(B)(ii)(I); and

(ii)

to account for the use of renewable fuel during the previous calendar year by small refineries that

are exempt under paragraph (9).

13a

(4) Modification of greenhouse gas reduction percentages

(A) In general

The Administrator may, in the regulations under the

last sentence of paragraph (2)(A)(i), adjust the 20 percent, 50 percent, and 60 percent reductions in lifecycle

greenhouse gas emissions specified in paragraphs

(2)(A)(i) (relating to renewable fuel), (1)(D) (relating to

biomass-based diesel), (1)(B)(i) (relating to advanced

biofuel), and (1)(E) (relating to cellulosic biofuel) to a

lower percentage. For the 50 and 60 percent reductions, the Administrator may make such an adjustment only if he determines that generally such reduction is not commercially feasible for fuels made using

a variety of feedstocks, technologies, and processes to

meet the applicable reduction.

(B) Amount of adjustment

In promulgating regulations under this paragraph,

the specified 50 percent reduction in greenhouse gas

emissions from advanced biofuel and in biomass-based

diesel may not be reduced below 40 percent. The specified 20 percent reduction in greenhouse gas emissions

from renewable fuel may not be reduced below 10 percent, and the specified 60 percent reduction in greenhouse gas emissions from cellulosic biofuel may not be

reduced below 50 percent.

An adjustment under this paragraph to a percent less

than the specified 20 percent greenhouse gas reduction for renewable fuel shall be the minimum possible

adjustment, and the adjusted greenhouse gas reduction shall be established by the Administrator at the

maximum achievable level, taking cost in consider-

14a

ation, for natural gas fired corn-based ethanol plants,

allowing for the use of a variety of technologies and

processes. An adjustment in the 50 or 60 percent

greenhouse gas levels shall be the minimum possible

adjustment for the fuel or fuels concerned, and the adjusted greenhouse gas reduction shall be established

at the maximum achievable level, taking cost in consideration, allowing for the use of a variety of feedstocks, technologies, and processes.

(D) 5-year review

Whenever the Administrator makes any adjustment

under this paragraph, not later than 5 years thereafter

he shall review and revise (based upon the same criteria and standards as required for the initial adjustment) the regulations establishing the adjusted level.

(E) Subsequent adjustments

After the Administrator has promulgated a final rule

under the last sentence of paragraph (2)(A)(i) with respect to the method of determining lifecycle greenhouse gas emissions, except as provided in subparagraph (D), the Administrator may not adjust the percent greenhouse gas reduction levels unless he determines that there has been a significant change in the

analytical methodology used for determining the

lifecycle greenhouse gas emissions. If he makes such

determination, he may adjust the 20, 50, or 60 percent

reduction levels through rulemaking using the criteria

and standards set forth in this paragraph.

(F) Limit on upward adjustments

If, under subparagraph (D) or (E), the Administrator

revises a percent level adjusted as provided in subparagraphs (A), (B), and (C) to a higher percent, such

higher percent may not exceed the applicable percent

15a

specified in paragraph (2)(A)(i), (1)(D), (1)(B)(i), or

(1)(E).

(G) Applicability of adjustments

If the Administrator adjusts, or revises, a percent

level referred to in this paragraph or makes a change

in the analytical methodology used for determining

the lifecycle greenhouse gas emissions, such adjustment, revision, or change (or any combination thereof)

shall only apply to renewable fuel from new facilities

that commence construction after the effective date of

such adjustment, revision, or change.

(5) Credit program

(A) In general

The regulations promulgated under paragraph (2)(A)

shall provide—

(i) for the generation of an appropriate amount of

credits by any person that refines, blends, or imports

gasoline that contains a quantity of renewable fuel

that is greater than the quantity required under paragraph (2);

(ii) for the generation of an appropriate amount of

credits for biodiesel; and

(iii) for the generation of credits by small refineries in accordance with paragraph (9)(C).

(B) Use of credits

A person that generates credits under subparagraph

(A) may use the credits, or transfer all or a portion of

the credits to another person, for the purpose of complying with paragraph (2).

16a

A credit generated under this paragraph shall be valid

to show compliance for the 12 months as of the date of

generation.

(D) Inability to generate or purchase sufficient

credits

The regulations promulgated under paragraph (2)(A)

shall include provisions allowing any person that is unable to generate or purchase sufficient credits to meet

the requirements of paragraph (2) to carry forward a

renewable fuel deficit on condition that the person, in

the calendar year following the year in which the renewable fuel deficit is created—

(i) achieves compliance with the renewable fuel requirement under paragraph (2); and

(ii) generates or purchases additional renewable

fuel credits to offset the renewable fuel deficit of the

previous year.

(E) Credits for additional renewable fuel

The Administrator may issue regulations providing:

(i) for the generation of an appropriate amount of credits by any person that refines, blends, or imports additional renewable fuels specified by the Administrator;

and (ii) for the use of such credits by the generator, or

the transfer of all or a portion of the credits to another

person, for the purpose of complying with paragraph

(2).

(6) Seasonal variations in renewable fuel use

(A) Study

For each of calendar years 2006 through 2012, the Administrator of the Energy Information Administration

shall conduct a study of renewable fuel blending to

17a

determine whether there are excessive seasonal variations in the use of renewable fuel.

(B) Regulation of excessive seasonal variations

If, for any calendar year, the Administrator of the Energy Information Administration, based on the study

under subparagraph (A), makes the determinations

specified in subparagraph (C), the Administrator of

the Environmental Protection Agency shall promulgate regulations to ensure that 25 percent or more of

the quantity of renewable fuel necessary to meet the

requirements of paragraph (2) is used during each of

the 2 periods specified in subparagraph (D) of each

subsequent calendar year.

The determinations referred to in subparagraph (B)

are that—

(i) less than 25 percent of the quantity of renewable fuel necessary to meet the requirements of paragraph (2) has been used during 1 of the 2 periods specified in subparagraph (D) of the calendar year;

(ii) a pattern of excessive seasonal variation described in clause (i) will continue in subsequent calendar years; and promulgating regulations or other requirements to impose a 25 percent or more seasonal

use of renewable fuels will not prevent or interfere

with the attainment of national ambient air quality

standards or significantly increase the price of motor

fuels to the consumer.

(D) Periods

The 2 periods referred to in this paragraph are—

(i) April through September; and

(ii) January through March and October through

December.

18a

(E) Exclusion

Renewable fuel blended or consumed in calendar year

2006 in a State that has received a waiver under section 7543(b) of this title shall not be included in the

study under subparagraph (A).

(F) State exemption from seasonality requirements

Notwithstanding any other provision of law, the seasonality requirement relating to renewable fuel use established by this paragraph shall not apply to any

State that has received a waiver under section 7543(b)

of this title or any State dependent on refineries in

such State for gasoline supplies.

(7) Waivers

(A) In general

The Administrator, in consultation with the Secretary

of Agriculture and the Secretary of Energy, may

waive the requirements of paragraph (2) in whole or in

part on petition by one or more States, by any person

subject to the requirements of this subsection, or by

the Administrator on his own motion by reducing the

national quantity of renewable fuel required under

paragraph (2)—

(i) based on a determination by the Administrator,

after public notice and opportunity for comment, that

implementation of the requirement would severely

harm the economy or environment of a State, a region,

or the United States; or

(ii) based on a determination by the Administrator,

after public notice and opportunity for comment, that

there is an inadequate domestic supply.

19a

(B) Petitions for waivers

The Administrator, in consultation with the Secretary

of Agriculture and the Secretary of Energy, shall approve or disapprove a petition for a waiver of the requirements of paragraph (2) within 90 days after the

date on which the petition is received by the Administrator.

A waiver granted under subparagraph (A) shall terminate after 1 year, but may be renewed by the Administrator after consultation with the Secretary of Agriculture and the Secretary of Energy.

(D) Cellulosic biofuel

(i) For any calendar year for which the projected

volume of cellulosic biofuel production is less than the

minimum applicable volume established under paragraph (2)(B), as determined by the Administrator

based on the estimate provided under paragraph

(3)(A), not later than November 30 of the preceding

calendar year, the Administrator shall reduce the applicable volume of cellulosic biofuel required under

paragraph (2)(B) to the projected volume available

during that calendar year. For any calendar year in

which the Administrator makes such a reduction, the

Administrator may also reduce the applicable volume

of renewable fuel and advanced biofuels requirement

established under paragraph (2)(B) by the same or a

lesser volume.

(ii) Whenever the Administrator reduces the minimum cellulosic biofuel volume under this subparagraph, the Administrator shall make available for sale

cellulosic biofuel credits at the higher of $0.25 per gallon or the amount by which $3.00 per gallon exceeds

the average wholesale price of a gallon of gasoline in

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the United States. Such amounts shall be adjusted for

inflation by the Administrator for years after 2008.

(iii) Eighteen months after December 19, 2007, the

Administrator shall promulgate regulations to govern

the issuance of credits under this subparagraph. The

regulations shall set forth the method for determining

the exact price of credits in the event of a waiver. The

price of such credits shall not be changed more frequently than once each quarter. These regulations

shall include such provisions, including limiting the

credits’ uses and useful life, as the Administrator

deems appropriate to assist market liquidity and

transparency, to provide appropriate certainty for

regulated entities and renewable fuel producers, and

to limit any potential misuse of cellulosic biofuel credits to reduce the use of other renewable fuels, and for

such other purposes as the Administrator determines

will help achieve the goals of this subsection. The regulations shall limit the number of cellulosic biofuel

credits for any calendar year to the minimum applicable volume (as reduced under this subparagraph) of

cellulosic biofuel for that year.

(E) Biomass-based diesel

(i) Market evaluation

The Administrator, in consultation with the Secretary

of Energy and the Secretary of Agriculture, shall periodically evaluate the impact of the biomass-based

diesel requirements established under this paragraph

on the price of diesel fuel.

(ii) Waiver

If the Administrator determines that there is a significant renewable feedstock disruption or other market

circumstances that would make the price of biomassbased diesel fuel increase significantly, the Admin-

21a

istrator, in consultation with the Secretary of Energy

and the Secretary of Agriculture, shall issue an order

to reduce, for up to a 60-day period, the quantity of biomass-based diesel required under subparagraph (A)

by an appropriate quantity that does not exceed 15

percent of the applicable annual requirement for biomass-based diesel. For any calendar year in which the

Administrator makes a reduction under this subparagraph, the Administrator may also reduce the applicable volume of renewable fuel and advanced biofuels requirement established under paragraph (2)(B) by the

same or a lesser volume.

(iii) Extensions

If the Administrator determines that the feedstock

disruption or circumstances described in clause (ii) is

continuing beyond the 60-day period described in

clause (ii) or this clause, the Administrator, in consultation with the Secretary of Energy and the Secretary

of Agriculture, may issue an order to reduce, for up to

an additional 60-day period, the quantity of biomassbased diesel required under subparagraph (A) by an

appropriate quantity that does not exceed an additional 15 percent of the applicable annual requirement

for biomass-based diesel.

(F) Modification of applicable volumes

For any of the tables in paragraph (2)(B), if the Administrator waives—

(i) at least 20 percent of the applicable volume requirement set forth in any such table for 2 consecutive

years; or

(ii) at least 50 percent of such volume requirement

for a single year, the Administrator shall promulgate

a rule (within 1 year after issuing such waiver) that

modifies the applicable volumes set forth in the table

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concerned for all years following the final year to

which the waiver applies, except that no such modification in applicable volumes shall be made for any year

before 2016. In promulgating such a rule, the Administrator shall comply with the processes, criteria, and

standards set forth in paragraph (2)(B)(ii).

(8) Study and waiver for initial year of program

(A) In general

Not later than 180 days after August 8, 2005, the Secretary of Energy shall conduct for the Administrator

a study assessing whether the renewable fuel requirement under paragraph (2) will likely result in significant adverse impacts on consumers in 2006, on a national, regional, or State basis.

(B) Required evaluations

The study shall evaluate renewable fuel—

(i) supplies and prices;

(ii) blendstock supplies; and

(iii) supply and distribution system capabilities.

Based on the results of the study, the Secretary of Energy shall make specific recommendations to the Administrator concerning waiver of the requirements of

paragraph (2), in whole or in part, to prevent any adverse impacts described in subparagraph (A).

(D) Waiver

(i) In general

Not later than 270 days after August 8, 2005, the Administrator shall, if and to the extent recommended by

the Secretary of Energy under subparagraph (C),

waive, in whole or in part, the renewable fuel requirement under paragraph (2) by reducing the national

23a

quantity of renewable fuel required under paragraph

(2) in calendar year 2006.

(ii) No effect on waiver authority

Clause (i) does not limit the authority of the Administrator to waive the requirements of paragraph (2) in

whole, or in part, under paragraph (7).

(9) Small refineries

(A) Temporary exemption

(i) In general

The requirements of paragraph (2) shall not apply to

small refineries until calendar year 2011.

(ii) Extension of exemption

(I) Study by Secretary of Energy

Not later than December 31, 2008, the Secretary of

Energy shall conduct for the Administrator a study to determine whether compliance 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 Secretary

of Energy determines under subclause (I) would be subject to a disproportionate economic 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 additional 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 exemption under

24a

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 Secretary of Energy,

shall consider the findings of the study under subparagraph (A)(ii) and other economic factors.

(iii) Deadline for action on petitions

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.

If a small refinery notifies the Administrator that the

small refinery waives the exemption under subparagraph (A), the regulations promulgated under paragraph (2)(A) shall provide for the generation of credits

by the small refinery under paragraph (5) beginning

in the calendar year following the date of notification.

(D) Opt-in for small refineries

A small refinery shall be subject to the requirements

of paragraph (2) if the small refinery notifies the Administrator that the small refinery waives the exemption under subparagraph (A).

(10) Ethanol market concentration analysis

(A) Analysis

(i) In general

Not later than 180 days after August 8, 2005, and annually thereafter, the Federal Trade Commission

shall perform a market concentration analysis of the

ethanol production industry using the HerfindahlHirschman Index to determine whether there is

25a

sufficient competition among industry participants to

avoid price-setting and other anticompetitive behavior.

(ii) Scoring

For the purpose of scoring under clause (i) using the

Herfindahl-Hirschman Index, all marketing arrangements among industry participants shall be considered.

(B) Report

Not later than December 1, 2005, and annually thereafter, the Federal Trade Commission shall submit to

Congress and the Administrator a report on the results of the market concentration analysis performed

under subparagraph (A)(i).

(11) Periodic reviews

To allow for the appropriate adjustment of the requirements described in subparagraph (B) of paragraph (2), the Administrator shall conduct periodic reviews of—

(A) existing technologies;

(B) the feasibility of achieving compliance with the

requirements; and

subsection (a)(2)ௗ11 on each individual and entity described in paragraph (2).

(12) Effect on other provisions

Nothing in this subsection, or regulations issued pursuant to this subsection, shall affect or be construed to

affect the regulatory status of carbon dioxide or any

other greenhouse gas, or to expand or limit regulatory

authority regarding carbon dioxide or any other

greenhouse gas, for purposes of other provisions (including section 7475) of this chapter. The previous

26a

sentence shall not affect implementation and enforcement of this subsection.

__________________

So in original. The word “and” probably should appear.

So in original. Probably should be “non-Federal”.

So in original. Subsection (a) does not contain a par. (2).

***

27a

42 U.S.C. § 7607

Administrative proceedings and judicial review

(b) Judicial review

(1)

A petition for review of action of the Administrator

in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 7412 of this title, any standard of

performance or requirement under section 7411 of this title, 1 any standard under section 7521 of this title (other

than a standard required to be prescribed under section

7521(b)(1) of this title), any determination under section

7521(b)(5)1 of this title, any control or prohibition under

section 7545 of this title, any standard under section 7571

of this title, any rule issued under section 7413, 7419, or

under section 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by

the Administrator under this chapter may be filed only in

the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator’s action

in approving or promulgating any implementation plan

under section 7410 of this title or section 7411(d) of this

title, any order under section 7411(j) of this title, under

section 7412 of this title, under section 7419 of this title, or

under section 7420 of this title, or his action under section

1857c-10(c)(2)(A), (B), or (C) of this title (as in effect before August 7, 1977) or under regulations thereunder, or

revising regulations for enhanced monitoring and compliance certification programs under section 7414(a)(3) of

this title, or any other final action of the Administrator

under this chapter (including any denial or disapproval by

the Administrator under subchapter I) which is locally or

regionally applicable may be filed only in the United

So in original.

28a

States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be

filed only in the United States Court of Appeals for the

District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such

action the Administrator finds and publishes that such action is based on such a determination. Any petition for review under this subsection shall be filed within sixty days

from the date notice of such promulgation, approval, or

action appears in the Federal Register, except that if such

petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds

arise. The filing of a petition for reconsideration by the

Administrator of any otherwise final rule or action shall

not affect the finality of such rule or action for purposes

of judicial review nor extend the time within which a petition for judicial review of such rule or action under this

section may be filed, and shall not postpone the effectiveness of such rule or action.

(2)

Action of the Administrator with respect to which

review could have been obtained under paragraph (1)

shall not be subject to judicial review in civil or criminal

proceedings for enforcement. Where a final decision by

the Administrator defers performance of any nondiscretionary statutory action to a later time, any per-son may

challenge the deferral pursuant to paragraph (1).

***

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