Motion for divided argument — Environmental Protection Agency, Petitioner v. Calumet Shreveport Refining, L.L.C., et al.

No. 23-1229

IN THE

Supreme Court of the United States

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

v.

CALUMET SHREVEPORT REFINING, LLC, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

MOTION OF RESPONDENTS GROWTH ENERGY AND

RENEWABLE FUELS ASSOCIATION FOR DIVIDED ARGUMENT

Pursuant to Rule 28.4 of this Court, Growth Energy and the Renewable Fuels

Association (“biofuels respondents”)—as respondents supporting petitioner—

respectfully move to divide the oral argument for petitioner in this case. The biofuels

respondents request the following division of argument time: 20 minutes for petitioner

and 10 minutes for the biofuels respondents. This allocation would not require any

enlargement of the overall time for argument. The Solicitor General of the United

States, on behalf of petitioner, consents to the proposed division. Counsel for the other

respondents takes no position on this motion.

The Renewable Fuel Program (“RFP”) is a Clean Air Act program that

mandates the amount of renewable fuel to be blended annually into the nation’s supply

of gasoline and diesel fuel. See 42 U.S.C. §7545(o). In 2022, EPA issued two actions

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denying requests by various petroleum refineries around the country to be exempted

from their RFP obligations for certain compliance years because of their alleged

“disproportionate economic hardship.”

Section 307(b)(1) of the Act specifies that a petition for review of any “action”

taken under the Act “may be filed only in” the D.C. Circuit “if” either (a) the action is

“nationally applicable” or (b) the 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 de-termination.” 42 U.S.C. §7607(b)(1). Otherwise, the

petition for review “may be filed only in the United States Court of Appeals for the

appropriate circuit.” Id. Disappointed refineries sought review of EPA’s 2022

exemption actions in the Fifth Circuit (as well as in the Third, Seventh, Ninth, Tenth,

Eleventh, and D.C. Circuits). The biofuels respondents intervened in support of EPA.

In the decision below, a divided Fifth Circuit panel held that it was “the appropriate

circuit” because the exemption actions are “neither nationally applicable nor based on a

determination of nationwide scope or effect.”

EPA petitioned for certiorari, which this Court granted. The biofuels

respondents have filed an opening brief on the merits supporting EPA.

Dividing petitioner’s argument time between petitioner and the biofuels

respondents would materially assist the Court. As the argument is currently postured,

the Court will hear the views of the regulatory agency and only one side of the

regulated public, namely, the petroleum industry. As leading associations of producers

of the renewable fuel used to comply with RFP obligations, the biofuels respondents are

the sole representatives of the other side of the regulated public in this case, namely,

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the renewable-fuels industry. Consequently, the biofuels respondents can offer the

Court a distinct and vital perspective on both the RFP and the implications of the

Court's resolution of the venue question presented, as illustrated by the different

(though complementary) points and emphases in petitioner's and the biofuels

respondents' opening briefs.

H

.

AXMAN

Counsel of Record

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 663-6000

seth.waxman@wilmerhale.com

January 17, 2025

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CERTIFICATE OF SERVICE

I, Seth P. Waxman, a member of the bar of the Court, certify that on January 17,

2025, counsel for all parties required to be served have been served copies of the

foregoing via overnight courier and electronic mail at the addresses below:

Counsel for Petitioner

ELIZABETH B. PRELOGAR

SOLICITOR GENERAL

UNITED STATES DEPARTMENT OF JUSTICE

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

(202) 514-2217

SupremeCtBriefs@USDOJ.gov

Counsel for Respondents

Calumet Shreveport Refining, LLC;

Placid Refining Company, LLC;

Wynnewood Refining Company, LLC;

Ergon Refining, Inc.; Ergon-West Virginia, Inc.;

and San Antonio Refinery, LLC

MICHAEL ROBERT HUSTON

PERKINS Corn LLP

2525 E . Camelback Road, Suite 500,

Phoenix, AZ 85016

(202) 434-1630

mhuston@perkinscoie.com