Petition for Writ of Certiorari — Growth Energy, et al., Petitioners v. Calumet Shreveport Refining, L.L.C., et al.
Supreme Court briefMay 20, 2024
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No. 23IN THE
Supreme Court of the United States
GROWTH ENERGY AND THE
RENEWABLE FUELS ASSOCIATION,
Petitioners,
v.
CALUMET SHREVEPORT REFINING, LLC, ET AL.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
DAVID M. LEHN
JAY SCHUFFENHAUER
BOIES SCHILLER FLEXNER LLP
1401 New York Avenue NW
Washington, DC 20005
(202) 237-2727
dlehn@bsfllp.com
SETH P. WAXMAN
Counsel of Record
MICHAEL A. MOORIN
WILMER CUTLER PICKERING
HALE AND DORR LLP
2100 Pennsylvania Avenue NW
Washington, DC 20037
(202) 663-6800
seth.waxman@wilmerhale.com
EVAN M. EZRAY
BOIES SCHILLER FLEXNER LLP
401 East Las Olas Boulevard Counsel for Petitioners
Suite 1200
Fort Lauderdale, FL 33301 MATTHEW W. MORRISON
(954) 377-4237
SHELBY L. DYL
PILLSBURY WINTHROP
Counsel for Growth Energy
SHAW PITTMAN LLP
1200 Seventeenth Street NW
Washington, DC 20036
(202) 663-8036
matthew.morrison@
pillsburylaw.com
Counsel for the Renewable
Fuels Association
QUESTION PRESENTED
Whether an action by the Environmental Protection
Agency is “nationally applicable” or “based on a determination of nationwide scope or effect” for purposes of
laying venue under 42 U.S.C. §7607(b)(1) when the action uses a common legal requirement and a general factual finding to resolve all pending “small refinery” petitions for exemption from annual obligations under the
Renewable Fuel Program irrespective of the petitioning
refineries’ location.
PARTIES TO THE PROCEEDING
Petitioners, intervenors below, are Growth Energy
and the Renewable Fuels Association.
Respondents, petitioners below, are Calumet
Shreveport Refining, L.L.C.; Ergon Refining, Incorporated; Ergon-West Virginia, Inc.; Placid Refining Company, L.L.C.; The San Antonio Refinery, L.L.C; Wynnewood Refining Company, L.L.C.
Respondent below was the U.S. Environmental Protection Agency.
Other intervenors below were American Coalition
for Ethanol, National Corn Growers Association, and
National Farmers Union.
(i)
CORPORATE DISCLOSURE STATEMENT
Growth Energy has no parent company and no publicly held company has a 10% or greater ownership interest in Growth Energy.
The Renewable Fuels Association has no parent
company and no publicly held company has a 10% or
greater ownership interest in the Renewable Fuels Association.
(ii)
RELATED PROCEEDINGS
In addition to the proceeding below, small-refinery
petitioners also sought review of EPA’s April 2022 and
June 2022 exemption actions in the following proceedings:
American Refining Group v. EPA, No. 22-1991 (3d
Cir.)
American Refining Group v. EPA, No. 22-2435 (3d
Cir.)
Countrymark Refining and Logistics, LLC v. EPA,
No. 22-1878 (7th Cir.)
Countrymark Refining and Logistics, LLC v. EPA,
No. 22-2368 (7th Cir.)
Calumet Montana Refining, LLC v. EPA, No. 2270124 (9th Cir.)
Calumet Montana Refining, LLC v. EPA, No. 2270166 (9th Cir.)
Kern Oil & Refining Co. v. EPA, No. 22-70128 (9th
Cir.)
Kern Oil & Refining Co. v. EPA, No. 22-70172 (9th
Cir.)
Par Hawaii Refining, LLC v. EPA, No. 22-70125
(9th Cir.)
Par Hawaii Refining, LLC v. EPA, No. 22-70168
(9th Cir.)
San Joaquin Refining Co., Inc. v. EPA, No. 2270126, (9th Cir.)
San Joaquin Refining Co., Inc. v. EPA, No. 2270170 (9th Cir.)
(iii)
Wyoming Refining Co. v. EPA, No. 22-9538 (10th
Cir.)
Wyoming Refining Co. v. EPA, No. 22-9553 (10th
Cir.)
Hunt Refining Co. v. EPA, No. 22-11617 (consol.)
(11th Cir.)
Sinclair Wyoming Refining Co. v. EPA, No. 221073 (consol.) (D.C. Cir.)
In July 2023, EPA issued a separate final action
denying 26 additional small-refinery exemption petitions for compliance years 2016-2018 and 2021-2023. Petitions for review of the July 2023 action were filed in the
following proceedings:
American Refining Group v. EPA, No. 23-2664 (3d
Cir.)
Ergon Refining, Inc., et al. v. EPA, No. 23-60492
(5th Cir.)
The San Antonio Refinery and Calumet Shreveport
Refining, LLC v. EPA, No. 23-60399 (5th Cir.)
Wynnewood Refining Company, LLC v. EPA, No.
23-60427 (5th Cir.)
Countrymark Refining and Logistics, LLC v. EPA,
No. 23-2766 (7th Cir.)
Cross Oil Refining and Marketing v. EPA, No. 233101 (8th Cir.)
Calumet Montana Refining, LLC v. EPA, No. 232183 (9th Cir.)
(iv)
Par Hawaii Refining, LLC v. EPA, No. 23-2185 (9th
Cir.)
San Joaquin Refining Co., Inc. v. EPA, No. 23-2186
(9th Cir.)
Wyoming Refining Co. v. EPA, No. 23-9582 (10th
Cir.)
Hunt Refining Co. v. EPA, No. 23-12347 (11th Cir.)
Calumet Montana Refining LLC v. EPA, No. 231194 (consol.) (D.C. Cir.)
(v)
TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................................... i
PARTIES TO THE PROCEEDING ............................... i
CORPORATE DISCLOSURE STATEMENT ............. ii
RELATED PROCEEDINGS..........................................iii
TABLE OF AUTHORITIES ..........................................ix
INTRODUCTION .............................................................. 1
OPINION BELOW............................................................. 4
JURISDICTION ................................................................. 4
STATUTORY PROVISIONS INVOLVED .................. 4
STATEMENT OF THE CASE ........................................ 4
A. The Clean Air Act’s Venue Provision ................ 4
B. The Renewable Fuel Program ............................ 5
1.
Annual national volume requirements ....... 5
2.
Small-refinery exemptions ........................... 7
C. EPA’s 2022 Exemption Actions.......................... 9
D. Litigation Challenging The 2022
Exemption Actions ............................................. 11
REASONS FOR GRANTING THE PETITION........ 15
I.
THE CIRCUITS ARE SHARPLY DIVIDED .................. 15
A. The Circuits Are Intractably Split On
The Proper Venue For Reviewing
The 2022 Exemption Denials............................. 15
B. The Circuits Are More Broadly Split On
How To Apply §7607(b)(1)’s Venue
Provision ............................................................... 18
(vii)
viii
TABLE OF CONTENTS—Continued
Page(s)
II. THE QUESTION PRESENTED IS IMPORTANT
AND RECURRING ........................................................ 21
III. THE DECISION BELOW IS WRONG ............................ 26
A. Congress Intended For Review Of All
Matters Whose Significance Extends
Beyond One Judicial Circuit To Be
Centralized In The D.C. Circuit........................ 26
B. The 2022 Exemption Actions Must Be
Reviewed In The D.C. Circuit Because
They Are Nationally Significant ....................... 29
C. The Fifth Circuit’s Analysis Is Thoroughly
Flawed .................................................................. 31
IV. THIS CASE IS AN IDEAL VEHICLE ........................... 33
CONCLUSION ................................................................. 34
APPENDIX ....................................................................... 1a
ix
TABLE OF AUTHORITIES
CASES
Page(s)
American Fuel & Petrochemical
Manufacturers v. EPA,
937 F.3d 559 (D.C. Cir. 2019) ....................................... 8
American Refining Group v. EPA,
No. 22-1991 (3d Cir.) .................................................. 11
American Refining Group v. EPA,
No. 22-2435 (3d Cir.) ............................................ 11, 17
Americans for Clean Energy v. EPA,
864 F.3d 691 (D.C. Cir. 2017) .............................5-7, 25
Arkansas v. EPA,
No. 23-1320 (8th Cir.) ................................................. 19
ATK Launch Systems, Inc. v. EPA,
651 F.3d 1194 (10th Cir. 2011) .................................. 21
Atlantic Richfield Co. v. Christian,
140 S. Ct. 1335 (2020) ................................................. 22
Bowen v. Georgetown University Hospital,
488 U.S. 204 (1988) ..................................................... 32
Calumet Montana Refining, LLC v. EPA,
No. 22-70124 (9th Cir.) ............................................... 11
Calumet Montana Refining, LLC v. EPA,
No. 22-70166 (9th Cir.) ............................................... 12
Countrymark Refining and Logistics, LLC v.
EPA,
No. 22-1878 (7th Cir.) ................................................. 11
Countrymark Refining and Logistics, LLC v.
EPA,
No. 22-2368 (7th Cir.) ................................................. 11
x
TABLE OF AUTHORITIES—Continued
Page(s)
Elgin v. Department of Treasury,
567 U.S. 1 (2012) ......................................................... 22
Ergon-West Virginia, Inc. v. EPA,
896 F.3d 600 (4th Cir. 2018) ...................................... 25
Growth Energy v. EPA,
5 F.4th 1 (D.C. Cir. 2021) ............................................. 6
Harrison v. PPG Industries, Inc.,
446 U.S. 578 (1980) ............................ 3-4, 22, 26-27, 31
Hertz Corp. v. Friend,
559 U.S. 77 (2010) ....................................................... 22
HollyFrontier Cheyenne Refining, LLC v.
Renewable Fuels Ass’n,
594 U.S. 382 (2021) ....................................................6-7
Hunt Refining Co. v. EPA,
90 F.4th 1107 (11th Cir. 2024) ....................2, 14, 16-17
Kentucky v. EPA,
No. 23-3216 (6th Cir.) ................................................. 19
Kern Oil & Refining Co. v. EPA,
No. 22-70128 (9th Cir.) ............................................... 12
Kern Oil & Refining Co. v. EPA,
No. 22-70172 (9th Cir.) ............................................... 12
National Ass’n of Manufacturers v. Department of Defense,
583 U.S. 109 (2018) ..................................................... 22
Navarro Savings Ass’n v. Lee,
446 U.S. 458 (1980) ................................................. 3, 22
xi
TABLE OF AUTHORITIES—Continued
Page(s)
Oklahoma v. EPA,
93 F.4th 1262 (10th Cir. 2024) ........................19-20, 33
Par Hawaii Refining, LLC v. EPA,
No. 22-70125 (9th Cir.) ............................................... 11
Par Hawaii Refining, LLC v. EPA,
No. 22-70168 (9th Cir.) ............................................... 12
Perry v. Merit Systems Protection Board,
582 U.S. 420 (2017) ..................................................... 22
RMS of Georgia, LLC v. EPA,
64 F.4th 1368 (11th Cir. 2023) ................................... 21
San Joaquin Refining Co., Inc. v. EPA, No. 2270126 (9th Cir.)............................................................ 11
San Joaquin Refining Co., Inc. v. EPA, No. 2270170 (9th Cir.)............................................................ 12
Sinclair Wyoming Refining Co. v. EPA,
2024 WL 2141564 (D.C. Cir. May 14, 2024) ............... 8
Southern Illinois Power Cooperative v. EPA,
863 F.3d 666 (7th Cir. 2017) .................................20-21
TC Heartland LLC v. Kraft Foods Group
Brands LLC,
581 U.S. 258 (2017) ..................................................... 23
Texas v. EPA,
2023 WL 7204840 (5th Cir. May 1, 2023) ................. 19
West Virginia v. EPA,
90 F.4th 323 (4th Cir. 2024) ............................18-19, 33
Wyoming Refining Co. v. EPA,
No. 22-9538 (10th Cir.) ............................................... 12
xii
TABLE OF AUTHORITIES—Continued
Page(s)
Wyoming Refining Co. v. EPA,
No. 22-9553 (10th Cir.) ............................................... 12
STATUTES AND OTHER
LEGISLATIVE MATERIALS
5 U.S.C. §551 ...................................................................... 31
28 U.S.C. §1254 .................................................................... 4
42 U.S.C.
§7545 ............................................................................5-8
§7607 ....... 1-5, 10-11, 13, 15-16, 18, 20-23, 25-29, 31-33
§7675 ............................................................................... 4
Pub. L. No. 95-95, 91 Stat. 685 (1977) ............................. 28
Pub. L. No. 110-140, 121 Stat. 1492 (2007) ....................... 5
H.R. Conf. Rep. No. 95-564 (1977) .................................. 28
H.R. Rep. No. 95-294 (1977) ........................................26-29
S. Rep. No. 91-1196 (1970) ................................................ 27
REGULATIONS AND
OTHER ADMINISTRATIVE MATERIALS
40 C.F.R.
§80.2 ................................................................................ 6
§80.1405 ...................................................................... 6, 8
§80.1407 .......................................................................... 6
§80.1415 .......................................................................... 7
§80.1427 .......................................................................... 7
§§80.1428-80.1429 ......................................................... 7
41 Fed. Reg. 56,767 (Dec. 30, 1976) ............................27-28
xiii
TABLE OF AUTHORITIES—Continued
Page(s)
Notice of Opportunity to Comment on Proposed
Denial of Petitions for Small Refinery
Exemptions, 86 Fed. Reg. 70,999 (Dec. 14,
2021) ............................................................................... 9
Notice of July 2023 Denial of Petitions for
Small Refinery Exemptions Under the
Renewable Fuel Standard Program, 88
Fed. Reg. 46,795 (July 20, 2023) ............................... 24
Renewable Fuel Standard Program: Standards
for 2020 and Biomass-Based Diesel Volume
for 2021 and Other Changes, 85 Fed. Reg.
7,016 (Feb. 6, 2020) ....................................................... 8
Renewable Fuel Standard (RFS) Program:
RFS Annual Rules, 87 Fed. Reg. 39,600
(July 1, 2022)...............................................................7-8
EPA, Renewable Fuel Annual Standards,
https://www.epa.gov/renewable-fuelstandard-program/renewable-fuel-annualstandards (updated June 21, 2023) ........................... 25
EPA, RFS Small Refinery Exemptions, https://
www.epa.gov/fuels-registration-reportingand-compliance-help/rfs-small-refineryexemptions (data updated May 16, 2024) ...........24-25
IN THE
Supreme Court of the United States
No. 23GROWTH ENERGY AND THE
RENEWABLE FUELS ASSOCIATION,
Petitioners,
v.
CALUMET SHREVEPORT REFINING, LLC, ET AL.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
INTRODUCTION
The Clean Air Act establishes numerous important
environmental programs, which routinely call upon the
Environmental Protection Agency (“EPA”) to take actions of varied geographic reach. The proper venue for
judicial review of such actions is specified by 42 U.S.C.
§7607(b)(1). A petition for review “may be filed only in”
the D.C. Circuit “if” either (a) the EPA action is “nationally applicable” or (b) the EPA 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.” Otherwise,
the petition for review “may be filed only in the United
States Court of Appeals for the appropriate circuit.”
2
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. In 2022, EPA issued two actions that together denied 105 requests by 36 “small refineries” to be exempted from their RFP obligations for
certain compliance years. In the actions, EPA adopted
and applied a single legal requirement and a general factual finding to all the refineries—which were located in
18 States in eight federal judicial circuits.
Disappointed refineries filed petitions for review of
EPA’s two exemption actions in the Third, Fifth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits. In the
decision below, a divided Fifth Circuit panel held that it
is a proper venue under §7607(b)(1) because the exemption actions are “neither nationally applicable nor based
on a determination of nationwide scope or effect.”
App.15a.
The Fifth Circuit’s decision contradicted prior rulings of the Third, Seventh, Ninth, and Tenth Circuits, all
of which had terminated their cases in favor of the D.C.
Circuit. And the Fifth Circuit’s analysis was later expressly rejected by the Eleventh Circuit, which concluded that the D.C. Circuit is the exclusive venue to review the 2022 exemption actions because they are both
“nationally applicable” and “based on a determination of
nationwide scope or effect.” Hunt Refining Co. v. EPA,
90 F.4th 1107, 1111-1113 (11th Cir. 2024).
As a result of this split, two circuits will opine on the
same challenges to the same EPA actions—actions that
adopted and used a common legal requirement and a
general factual finding to resolve requests from refineries around the country for exemption from a nationwide
mandate. That alone warrants this Court’s review.
3
Moreover, as this Court has recognized, a circuit split
over the application of §7607(b)(1) warrants “certiorari
… because of the importance of determining the locus of
judicial review of the actions of EPA.” Harrison v. PPG
Industries, Inc., 446 U.S. 578, 586 (1980). “It is of first
importance to have a [rule] … that will not invite extensive threshold litigation” over the proper court to hear a
case, Navarro Savings Ass’n v. Lee, 446 U.S. 458, 464
n.13 (1980) (cleaned up), but that is precisely what the
current confusion over the meaning of §7607(b)(1) causes.
Certiorari is also needed because the decision below
is wrong and will have serious deleterious consequences
for the administration of the RFP and other federal environmental programs. Section 7607(b)(1)’s text, structure, purpose, and history show that Congress intended
§7607(b)(1) to provide a comprehensive scheme for centralizing review in the D.C. Circuit of any Clean Air Act
action that is nationally significant. Local review of such
actions will produce duplicative efforts and potentially
inconsistent results, undermining Congress’s substantive objectives, whipsawing EPA, and leaving regulated
entities subject to different rules solely because of the
circuit in which they happen to be located.
Finally, the need for certiorari is amplified by the circuit split’s wider scope and repercussions. The split concerning the 2022 RFP exemption actions is one manifestation of a broader circuit split regarding how to apply
§7607(b)(1) to a single EPA action that resolves multiple
matters relating to entities located in many States and in
multiple circuits. Indeed, the Tenth Circuit’s disagreement with the Fourth, Fifth, Sixth, and Eighth Circuits
over this question in the context of another EPA action
is the subject of two pending certiorari petitions. See Oklahoma v. EPA, No. 23-1067 (filed Mar. 28, 2024); PacifiCorp v. EPA, No. 23-1068 (filed Mar. 28, 2024).
4
The Court should grant the petition regardless of
how it disposes of Oklahoma/PacifiCorp because this
case presents distinct issues that would not necessarily
be resolved by a decision in Oklahoma/PacifiCorp. If
the Court grants this petition and the petitions in Oklahoma/PacifiCorp, it should hear the cases in tandem.
OPINION BELOW
The court of appeals’ opinion (App.1a-41a) is reported at 86 F.4th 1121.
JURISDICTION
The court of appeals entered judgment on November 22, 2023. Growth Energy’s and the Renewable Fuels
Association’s timely rehearing petitions were denied on
January 22, 2024. App.185a. On March 15, 2024, their
deadline to petition for certiorari was extended until
May 21, 2024. See No. 23A841. This Court has jurisdiction under 28 U.S.C. §1254(1).
STATUTORY PROVISIONS INVOLVED
Relevant statutory provisions are reproduced in the
Appendix (App.187a-227a).
STATEMENT OF THE CASE
A. The Clean Air Act’s Venue Provision
Section 7607(b)(1) of title 42 of the U.S. Code establishes rules for determining “the proper venue as between the District of Columbia Circuit and the other
Federal Circuits” to review EPA actions under the
Clean Air Act. Harrison v. PPG Industries, Inc., 446
U.S. 578, 590 (1980). Section 7607(b)(1) also applies to
EPA actions under the American Innovation and Manufacturing Act. 42 U.S.C. §7675(k)(1)(C).
5
The venue provision begins by distinguishing between “nationally applicable” actions and “locally or regionally applicable” ones. Petitions for review of “any …
nationally applicable regulations promulgated, or final
action taken, by the Administrator under [the Act] may
be filed only in” the D.C. Circuit. §7607(b)(1). Petitions
for review of “any other final action of the Administrator
under [the Act] … which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit”—unless 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 determination,” in which case, again, the petition for review “may
be filed only in” the D.C. Circuit. Id.
B. The Renewable Fuel Program
1. Annual national volume requirements
Congress created the Clean Air Act’s Renewable
Fuel Program (“RFP”)—often called the “Renewable
Fuel Standard” (“RFS”)—“to ‘move the United States
toward greater energy independence and security’ and
‘increase the production of clean renewable fuels.’”
Americans for Clean Energy v. EPA, 864 F.3d 691, 697
(D.C. Cir. 2017) (Kavanaugh, J.) (quoting Pub. L. No.
110-140, §§201-202, 121 Stat. 1492, preamble (2007)). The
program achieves these goals by “requir[ing] an increasing amount of renewable fuel to be introduced into the
Nation’s transportation fuel supply each year.” Id. at
696; see 42 U.S.C. §7545(o)(2)(A)(i), (B). “Therefore, …
[national] demand for renewable fuel [is] a function of
the renewable fuel standards.” Americans for Clean
Energy, 864 F.3d at 710 (cleaned up).
Under the program, there are four annual national
volume requirements, one for each of four “nested”
6
categories of renewable-fuel types. Americans for
Clean Energy, 864 F.3d at 697-698, 701. EPA “translat[es] the annual volume requirements into ‘percentage
standards,’” which “represent the percentage of transportation fuel introduced into commerce that must consist of renewable fuel.” Id. at 699; see §7545(o)(3)(B)(i)(ii); 40 C.F.R. §80.1405(c). That is, the percentages
roughly equal the national mandated renewable-fuel volumes divided by the total national volume of gasoline
and diesel fuel projected to be used. EPA is charged
with establishing the percentage standards before the
relevant year begins. §7545(o)(2)(B)(ii), (3)(B)(i).
EPA has designated refineries and importers of petroleum-based gasoline and diesel fuel as the “obligated
parties” in the transportation-fuel market. 40 C.F.R.
§80.2; see §7545(o)(2)(A)(iii), (3)(B)(ii). Obligated parties
“must ensure” that the required volumes of renewable
fuel are used. Americans for Clean Energy, 864 F.3d at
697. Although there are myriad obligated parties, there
is only one percentage standard for each of the four required national volumes. §7545(o)(3)(B)(ii)(III). “The
percentage standards inform each obligated party of
how much renewable fuel it must introduce into U.S.
commerce based on the volumes of fossil-based gasoline
or diesel it imports or produces.” Americans for Clean
Energy, 864 F.3d at 699; see 40 C.F.R. §80.1407(a). “In
other words, the EPA estimates what percentage of the
overall fuel supply each renewable-fuel type should constitute and then requires each obligated party to replicate those percentages on an individual basis.” Growth
Energy v. EPA, 5 F.4th 1, 11 (D.C. Cir. 2021).
EPA “polices these mandates with a system of credits.” HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Ass’n, 594 U.S. 382, 386 (2021); see
§7545(o)(5).
“Each credit”—called a Renewable
7
Identification Number (“RIN”)—“represents the blending of [an ethanol-equivalent gallon] of renewable fuel”
into gasoline or diesel fuel. HollyFrontier, 594 U.S. at
386; see 40 C.F.R. §80.1415. “A refinery that blends renewables may either ‘retire’ the credits it has earned
(i.e., use them) to satisfy its own RFP volume obligation—or sell those credits to a different [obligated party]
that needs them.” HollyFrontier, 594 U.S. at 386; see 40
C.F.R. §§80.1428-80.1429. Unused RINs remain valid
for compliance with the next year’s RFP obligations, 40
C.F.R. §80.1427, and the aggregate amount of the prior
year’s still-valid excess RINs is called the “carryover
RIN bank,” Renewable Fuel Standard (RFS) Program:
RFS Annual Rules, 87 Fed. Reg. 39,600, 39,613:1 & n.75
(July 1, 2022) [hereinafter “2020-2022 RFS Rule”];
Americans for Clean Energy, 864 F.3d at 714-716.
To illustrate: If the required national renewablefuel volume for 2024 is 10 billion gallons and the total
projected transportation-fuel use for 2024 is 100 billion
gallons, EPA would set the 2024 percentage standard at
10%. Then, if an obligated party introduced 5 million gallons of transportation fuel into commerce during 2024,
its RFP obligation would be 500,000 gallons of renewable
fuel, which it would satisfy by blending that amount of
renewable fuel into its gasoline and diesel, buying that
number of RINs in the market, or doing a combination
thereof. Generally, it could use RINs generated in 2024
or 2023 (i.e., carryover RINs) to show compliance.
2. Small-refinery exemptions
Congress allowed “small refineries”—refineries
whose “throughput” is below a specified level,
§7545(o)(1)(K)—to be exempted from their RFP obligations under limited circumstances. Relevant here, individual small refineries may “petition” EPA for
8
exemption (technically, extension of exemption) by
showing that they “would be subject to a disproportionate economic hardship if required to comply with” their
RFP obligations. §7545(o)(9)(A)(ii), (B)(i). These are
called “small refinery exemptions” (“SREs”).
Although small-refinery exemptions are granted for
individual small refineries, they have significant effects
on national compliance with RFP requirements. Since
the 2020 compliance year, EPA’s formula for determining the percentage standards has required EPA to account for all projected exemptions for that year. See Renewable Fuel Standard Program: Standards for 2020
and Biomass-Based Diesel Volume for 2021 and Other
Changes, 85 Fed. Reg. 7,016, 7,050:3 (Feb. 6, 2020) [hereinafter “2020 RFS Rule”]. EPA does so by subtracting
from the projected total amount of transportation fuel—
i.e., from the denominator in the percentage standard—
“[t]he total amount of gasoline [and diesel fuel] projected
to be exempt in [the relevant] year.” 40 C.F.R.
§80.1405(c). Reducing the denominator “increas[es] the
[percentage] standards on [all] non-exempt obligated
parties” nationally. 2020-2022 RFS Rule at 39,632:2.
“[S]hould EPA grant SREs without accounting for
them in the percentage formula, those exemptions would
effectively reduce the volumes of renewable fuel required by the RFS program,” 2020 RFS Rule at 7,050:3,
in turn creating a “renewable-fuel shortfall,” American
Fuel & Petrochemical Manufacturers v. EPA, 937 F.3d
559, 571 (D.C. Cir. 2019); see also Sinclair Wyoming Refining Co. v. EPA, 2024 WL 2141564, at *5, *13-14 (D.C.
Cir. May 14, 2024) (upholding EPA’s formula for accounting for projected exemptions).
In short, unaccounted-for exemptions create a national renewable-fuel shortfall relative to the nationally
9
required amount, while accounted-for exemptions increase the RFP obligations of all non-exempt obligated
parties nationally.
C. EPA’s 2022 Exemption Actions
In December 2021, EPA publicly noticed and solicited comment on its proposal “to deny all pending SRE
petitions,” Notice of Opportunity to Comment on Proposed Denial of Petitions for Small Refinery Exemptions, 86 Fed. Reg. 70,999 (Dec. 14, 2021), based on a
“revis[ed]” approach, App.181a. In January 2022, EPA
announced that it was expanding its proposed denial to
include 36 more exemption petitions, which had been remanded to EPA by the D.C. Circuit. App.45a n.1.
After receiving comments from the petitioning refineries and other interested parties, EPA finalized its
proposal in two parts. In April 2022, EPA published a
final action titled “April 2022 Denial of Petitions for RFS
Small Refinery Exemptions,” which covered the 36 remanded exemption petitions added to the proceeding in
January 2022. C.A.J.A.0001; C.A.J.A.0003, 0006. In
June 2022, EPA published a second final action, titled
“June 2022 Denial of Petitions for RFS Small Refinery
Exemptions,” which covered the other 69 pending exemption petitions. C.A.J.A.0146; App.43a, 45a.
The two actions together denied all pending exemption petitions based on the revised approach proposed in
December 2021. See, e.g., App.53a-54a. First, EPA clarified its interpretation of the statute’s exemption provision: henceforth, a petitioning “small refinery must
demonstrate a direct causal relationship between its
RFS compliance costs and the [disproportionate economic hardship] it alleges”; unlike in some recent years,
“financial difficulties” that are “unrelated” to compliance
“will not satisfy” the exemption standard. App.76a; see
10
also App.52a, 95a-101a. Second, EPA determined, based
on studies of the national RIN market and of various fuel
markets, that all small refineries, irrespective of their location, “have the ability … to pass through their RIN
costs.” App.149a; see also App.48a-52a, 63a-64a, 78a,
101a-105a, 162a, 177a; C.A.J.A.0227. Accordingly, EPA
found that, as a general matter, RFP compliance “cannot
cause” small refineries to incur any net compliance costs,
let alone the requisite disproportionate economic hardship. App.64a; see also App.79a-80a.
However, EPA invited the small refineries to rebut
its general presumption that they incur no net compliance costs, by submitting refinery-specific evidence
showing that in fact they are unable to recoup their RIN
costs or that they otherwise do incur net compliance
costs (and in turn those costs inflict disproportionate
economic hardship). App.51a-54a. After reviewing all
the evidence submitted by the refineries, EPA concluded that none met that burden. App.52a, 78a, 102a105a, 156a; C.A.J.A.0227.
In EPA’s published notices of the final exemption
actions, EPA stated that the actions are “nationally applicable” and found that they are “based on a determination of ‘nationwide scope or effect.’” C.A.J.A.0001:30002:1 (quoting §7607(b)(1)); C.A.J.A.0147:2. The notice
for the April denial explained that it “denies petitions for
exemptions … for over 30 small refineries across the
country and applies to small refineries located within 18
states in 7 of the 10 EPA regions and in 8 different Federal judicial circuits.” C.A.J.A.0002:1. The notice for the
June denial included the same statement, except that it
applied to small refineries located in fifteen States.
C.A.J.A.0147:2; see App.181a. The notices added that
the exemption actions are “based on EPA’s revised interpretation of the relevant [statutory] provisions
11
[requiring causation] and the RIN discount and RIN
cost passthrough principles that are applicable to all
small refineries no matter the location or market in
which they operate,” C.A.J.A.0002:1; C.A.J.A.0147:2-3,
i.e., that “all refineries” can “recover their RIN costs
through the market price of the fuel they produce” because those prices “increase[] to reflect the cost of the
RIN,” C.A.J.A.0001:3; C.A.J.A.0147:1; see App.179a182a. Therefore, under §7607(b)(1), “judicial review of
th[ese] action[s] must be filed in” the D.C. Circuit.
C.A.J.A.0002:1; C.A.J.A.0147:3.
D. Litigation Challenging The 2022 Exemption
Actions
1. Numerous small refineries challenged the 2022
exemption actions in the Third, Fifth, Seventh, Ninth,
Tenth, Eleventh, and D.C. Circuits. See supra pp.iii-v.
Many of the petitions filed outside the D.C. Circuit were
duplicative of ones filed there. See id. In all the cases
outside the D.C. Circuit, EPA moved under §7607(b)(1)
to dismiss or transfer to the D.C. Circuit.
Motions panels in the Third, Seventh, Ninth, and
Tenth Circuits concluded that the D.C. Circuit was the
only proper venue for reviewing the 2022 exemption actions and therefore granted EPA’s motions.1 Motions
1
See Order, American Refining Group v. EPA, No. 22-1991,
ECF #23 (3d Cir. Aug. 9, 2022); Order, American Refining Group v.
EPA, No. 22-2435, ECF #20 (3d Cir. Sept. 23, 2022); Order, Countrymark Refining and Logistics, LLC v. EPA, No. 22-1878, ECF
#13 (7th Cir. July 20, 2022); Order, Countrymark Refining and Logistics, LLC v. EPA, No. 22-2368, ECF #9 (7th Cir. Sept. 8, 2022);
Order, Calumet Montana Refining, LLC v. EPA, No. 22-70124,
ECF #16 (9th Cir. Oct. 25, 2022); Order, Par Hawaii Refining, LLC
v. EPA, No. 22-70125, ECF #16 (9th Cir. Oct. 25, 2022); Order, San
Joaquin Refining Co., Inc. v. EPA, No. 22-70126, ECF #16 (9th Cir.
12
panels in the Fifth and Eleventh Circuits deferred the
venue issue to merits panels.
2. In the published decision below, a divided Fifth
Circuit merits panel disagreed with the Third, Seventh,
Ninth, and Tenth Circuits, holding that the D.C. Circuit
is not the exclusive venue for reviewing the 2022 exemption actions because the actions are “neither nationally
applicable nor based on a determination of nationwide
scope or effect.” App.15a.
The Fifth Circuit majority first determined that the
2022 exemption actions are not nationally applicable.
The majority declared that “the legal effect—… not the
practical effect—of an agency action … determines
whether that action is ‘nationally applicable.” App.11a12a. The 2022 actions’ legal effect is not national, the majority reasoned, because the actions’ general “approach”
does not govern “all” small refineries since it does not
“bind[] EPA in any future adjudication” of exemption
petitions. App.12a.
Next, the majority concluded that the 2022 actions
are not based on a determination of nationwide scope or
effect. Giving “no deference” to EPA’s published finding
that the actions are based on a determination of nationwide scope or effect, the majority determined that the
Oct. 25, 2022); Order, Kern Oil & Refining Co. v. EPA, No. 2270128, ECF #13 (9th Cir. Oct. 25, 2022); Order, Calumet Montana
Refining, LLC v. EPA, No. 22-70166, ECF #14 (9th Cir. Oct. 25,
2022); Order, Par Hawaii Refining, LLC v. EPA, No. 22-70168,
ECF #13 (9th Cir. Oct. 25, 2022); Order, San Joaquin Refining Co.,
Inc. v. EPA, No. 22-70170, ECF #12 (9th Cir. Oct. 25, 2022); Order,
Kern Oil & Refining Co. v. EPA, No. 22-70172, ECF #14 (9th Cir.
Oct. 25, 2022); Order, Wyoming Refining Co. v. EPA, No. 22-9538,
ECF #10935421 (10th Cir. Aug. 23, 2022); Order, Wyoming Refining
Co. v. EPA, No. 22-9553, ECF #10939881 (10th Cir. Sept. 12, 2022).
13
finding was not “accura[te].” App.13a, 15a. The majority acknowledged that the actions are partially “based
on factors and facts common to each petition”—i.e.,
EPA’s causation requirement and general cost-recoupment finding, but emphasized that those common factors
were not alone “a sufficient basis to adjudicate [the] exemption petitions.” App.15a. To deny each petition,
EPA had to determine whether each individual refinery
had rebutted the general presumption that they incur no
net compliance cost based on “refinery-specific” evidence. Id.
Proceeding to the merits, the majority granted the
petitions for review, vacated the 2022 exemption actions,
and remanded to EPA. App.3a.
Dissenting, Judge Higginbotham concluded that the
D.C. Circuit is the only proper venue. Starting with
§7607(b)(1)’s principal venue test, he explained that the
question is not one of “legal effect” but of “national applicability,” which should be “measure[d] … by looking
to the location of the persons or enterprises that the action regulates.” App.36a (cleaned up). The 2022 exemption actions “inescapably” satisfy this standard because
“they apply one consistent statutory interpretation and
economic analysis to thirty-six small refineries, located
in eighteen different states, in the geographical boundaries of eight different circuit courts.” App.36a-37a.
Alternatively, Judge Higginbotham would have
held, the actions are based on a determination of nationwide scope or effect. He acknowledged that the actions
are partially based on refinery-specific determinations,
but he explained that, while “there can be multiple determinations that influence an agency’s actions,” “what
matters” is whether some “core determinations” have
nationwide scope or effect. App.40a-41a. “[T]he two
14
determinations at the core of the Denial Actions”—
again, EPA’s causation requirement and its general
cost-recoupment finding—have nationwide scope and effect because they “appl[y] to all small refineries no matter the location or market in which they operate.”
App.40a.
3. Subsequently, in a published decision, the Eleventh Circuit aligned with the Third, Seventh, Ninth, and
Tenth Circuits and held that the D.C. Circuit is the only
proper venue for reviewing the 2022 exemption actions.
See Hunt Refining Co. v. EPA, 90 F.4th 1107, 1113 (11th
Cir. 2024). The Eleventh Circuit expressly rejected the
Fifth Circuit’s analysis, instead finding “Judge Higginbotham’s dissent … more persuasive.” Id. at 1112.
Having been apprised of the Eleventh Circuit’s contrary decision, see Letter of Supplemental Authority,
C.A. ECF #432 (5th Cir. Jan. 12, 2024), the Fifth Circuit
nonetheless denied petitions for rehearing on the venue
issue. App.185a. The Eleventh Circuit likewise denied
a rehearing petition.
4. Finally, the merits of the 2022 exemption actions have been fully briefed and argued in the D.C. Circuit, and that case has been submitted for judgment.
Courtroom Minutes of Oral Argument, Sinclair
Wyoming Refining Co. v. EPA, No. 22-1073, ECF
#2049836 (D.C. Cir. Apr. 16, 2024). The refinery petitioners and EPA appear to agree that there is no “live venue
question” there because all the remaining petitioners in
that case have consented to venue. Petitioners’ Final
Joint Reply Brief 4, Sinclair, No. 22-1073, ECF
#2035081 (D.C. Cir. Jan. 9, 2024).
15
REASONS FOR GRANTING THE PETITION
I.
THE CIRCUITS ARE SHARPLY DIVIDED
The circuits are directly and firmly divided over
whether the very same EPA actions—the 2022 exemption actions—must be reviewed in the D.C. Circuit. The
Third, Seventh, Ninth, Tenth, and Eleventh Circuits
have held that the D.C. Circuit is the only proper venue
under §7607(b)(1). The Fifth Circuit, in this case, is the
only circuit to disagree, holding that the appropriate regional circuit is the proper venue.
This division is but one front in a broader split over
how to apply §7607(b)(1) to a single EPA action that resolves multiple individual matters relating to entities in
many States and in multiple federal judicial circuits. Addressing other EPA actions, the Fourth, Fifth, Sixth,
and Eighth Circuits have held—over vigorous dissents—that “the appropriate” regional circuit is the
proper venue when the petitioner challenges the action’s
resolution of the petitioner’s individual matter and that
resolution turned on petitioner-specific analysis. Contrary to that approach—and expressly criticizing it as
improperly petition-based—the Seventh, Tenth, and
Eleventh Circuits have instead looked at the nature and
reach of the overarching EPA action and accordingly
held that the D.C. Circuit is the proper venue for review.
A. The Circuits Are Intractably Split On The
Proper Venue For Reviewing The 2022 Exemption Denials
Initially, seven panels in four circuits—the Third,
Seventh, Ninth, and Tenth Circuits—uniformly concluded (in unpublished orders) that, under §7607(b)(1),
the D.C. Circuit is the only proper venue to review
EPA’s 2022 exemption actions. See supra p.11 n.1. The
16
Fifth Circuit disagreed with all those panels. It concluded that it, not the D.C. Circuit, is the proper venue
to hear the challenges before it. App.15a-16a. The Eleventh Circuit thereafter expressly rejected the Fifth Circuit’s position and aligned with the Third, Seventh,
Ninth, and Tenth Circuits. Hunt, 90 F.4th at 1112. Finally, the Fifth and Eleventh Circuits each denied rehearing petitions notwithstanding the other’s decision.
Supra p.14. Thus, the circuit split on where to review
the 2022 exemption actions could not be more direct, entrenched, or consequential.
This split reflects the circuits’ very different approaches to applying §7607(b)(1)’s venue provision. In
the decision below, the Fifth Circuit began with the
proposition that “the legal effect … of an agency action
… determines whether that action is ‘nationally applicable.’” App.11a-12a. It then concluded that the 2022 actions are not nationally applicable because they do not
govern “all” small refineries since even the general “approach” under which they were adjudicated does not
“bind[] EPA in any future adjudication” of exemption
petitions. App.12a. The court also found that the actions
are not based on a determination of nationwide scope or
effect because, although they are “based on factors and
facts common to each petition”—namely, EPA’s causation “interpretation and RIN passthrough theory”—
they also necessarily “rel[ied] on refinery-specific determinations” that “each of the petitions … did not … present facts contrary to” EPA’s general cost-recoupment
finding. App.15a.
The Eleventh Circuit, however, found Judge Higginbotham’s dissent “more persuasive” and concluded
that the D.C. Circuit is the proper venue to review the
2022 exemption actions because they are “nationally applicable” and, alternatively, “based on a determination of
17
nationwide scope or effect.” Hunt, 90 F.4th at 1112. The
court stated: “When deciding whether a final action is
‘nationally applicable,’ we begin by analyzing the nature
of the EPA’s action, not the specifics of the petitioner’s
grievance.” Id. at 1110 (cleaned up). The court criticized
the Fifth Circuit’s focus on the action’s “legal effect” as
contradicting the “plain meaning” of “nationally applicable,” which accounts for “the location of the persons or
enterprises that the action regulates.” Id. at 1112
(cleaned up). In the Eleventh Circuit’s view, the fact that
the two exemption actions together “denied 105 petitions
from refineries across the country[] is a strong indicator
of their national applicability.” Id. at 1110 (cleaned up).
“[M]ore importantly,” the court said, the exemption actions are “inescapabl[y]” “nationally applicable” because
they used a “statutory interpretation and analytical
framework that is applicable to all small refineries no
matter their location or market.” Id. at 1111-1112
(cleaned up). Similarly, and in the alternative, the court
concluded that the exemption actions are “based on a determination of nationwide scope or effect because they
announced a new, universally applicable approach to
evaluating hardship petitions.” Id. at 1112; see id. at
1113.
Like the Eleventh Circuit, the Third Circuit concluded that the June 2022 denial is “nationally applicable” “because, on its face, it denies exemptions sought by
30 small refineries across the county and applies to small
refineries located within 15 states in 7 of the 10 EPA regions.” Order 2, American Refining Group, No. 22-2435,
ECF #20. “Alternatively,” the court said, the denial was
“based on a determination of nationwide scope or effect.”
Id. The Seventh and Tenth Circuits reached the same
conclusion but did not supply their rationale—presumably because, as explained presently, that result was
18
dictated by their precedents applying §7607(b)(1) in
other contexts.
B. The Circuits Are More Broadly Split On How
To Apply §7607(b)(1)’s Venue Provision
The division among the circuits regarding the
proper venue for reviewing the 2022 exemption actions
implicates a broader division among the circuits regarding how to apply §7607(b)(1) to a single EPA action that
resolves multiple individual matters for entities in multiple States and in multiple judicial circuits.
For example, several circuits have disagreed about
the proper venue to review EPA’s 2023 rule that disapproved 21 States’ proposed state implementation plans
(“SIPs”) for meeting National Ambient Air Quality
Standards (“NAAQS”) because they failed to satisfy the
Clean Air Act’s “Good Neighbor” requirement. The
Fourth Circuit held that it, not the D.C. Circuit, was the
proper venue to hear West Virginia’s challenge to the
2023 SIP action. To start, the court declared that the
“focus must be on the geographical reach of the agency’s
final action and the determination on which it is based—
not the standard that the agency applied.” West Virginia v. EPA, 90 F.4th 323, 328 (4th Cir. 2024). The court
then found that “the relevant agency action for our review … is the EPA’s disapproval of West Virginia’s
SIP.” Id. at 330. Although “national standards … were
indeed applied to reject West Virginia’s SIP” and EPA
“disapproved of the SIPs of 21 States in a consolidated,
single agency action,” id. at 329-330, the court determined that the SIP action was neither “nationally applicable” nor “based on a determination of nationwide
scope or effect” because “the circumstances addressed
by the EPA were those particular and unique to West
Virginia,” id. at 328-329; see also id. at 330. In dissent,
19
Judge Thacker concluded that the 2023 SIP action was
“nationally applicable on its face—it disapproves SIPs
from 21 states across the country because those states
all failed to comply with the Good Neighbor provision.”
Id. at 334. In her view, the majority incorrectly
“look[ed] to the nature of West Virginia’s challenge,” i.e.,
to “the individual SIP[] before” the court. Id. at 334-335.
For largely the same reasons, the Fifth and Sixth
Circuits reached the same conclusion with respect to the
petitions for review before them. See Texas v. EPA,
2023 WL 7204840, at *4-5 (5th Cir. May 1, 2023) (“relevant unit of administrative action here is the EPA’s
[three] individual SIP denials” because “EPA separately
considered and disapproved” each State’s SIP and each
was “plainly based on a number of intensely factual determinations unique to each State”); Order 4-6, Kentucky v. EPA, No. 23-3216, ECF #39-2 (6th Cir. July 25,
2023). And the Eighth Circuit reached the same result
without explanation. See, e.g., Arkansas v. EPA, No. 231320, ECF #5269098 (8th Cir. Apr. 25, 2023). Dissenting
in the Fifth Circuit, Judge Douglas warned: “If this circuit were to determine that the underlying standard utilized by the EPA was wrong, this would impact the
EPA’s determinations in other states and would gut the
underlying policy of the venue provision: uniformity in
standards that have national effect and centralization of
SIP review.” 2023 WL 7204840, at *13.
Disagreeing with the Fourth, Fifth, Sixth, and
Eighth Circuits, the Tenth Circuit held that the D.C.
Circuit is the only proper venue for reviewing EPA’s
2023 SIP action. Oklahoma v. EPA, 93 F.4th 1262 (10th
Cir. 2024). The court began: “[W]hether a petition for
review belongs in the D.C. Circuit turns exclusively on
the nature of the challenged agency action.” Id. at 1266.
To make that assessment, courts must “look only to the
20
face of the action, not its practical effects or the scope of
the petitioner’s challenge.” Id. Repeatedly citing the
Eleventh Circuit’s decision in Hunt, id. at 1267-1268, the
court concluded that the “action being challenged” is
“nationally applicable”: it is a “rule disapproving SIPs
from 21 states across the country—spanning eight EPA
regions and ten federal judicial circuits—because those
states all failed to comply with the good-neighbor provision,” and “EPA applied a uniform statutory interpretation and common analytical methods,” id. at 1266; see
also id. at 1268.
Turning to the Fourth, Fifth, and Sixth Circuits’ decisions, the Tenth Circuit explained that by finding the
“relevant unit of administrative action” to be “each individual SIP disapproval,” “all three courts strayed from
§7607(b)(1)’s text and instead applied a petition-focused
approach that we and other circuits have rejected.” 93
F.4th at 1268. Their “misdirected approach may well result in ten regional circuit courts ruling on issues arising
from the same nationwide EPA rule, thereby defeating
the statute’s purpose to centralize judicial review of nationally applicable actions in the D.C. Circuit.” Id. at
1269. This disagreement among the circuits regarding
the proper venue for reviewing EPA’s 2023 SIP action
is the subject of two pending certiorari petitions to the
Tenth Circuit. See Oklahoma v. EPA, No. 23-1067 (filed
Mar. 28, 2024); PacifiCorp v. EPA, No. 23-1068 (filed
Mar. 28, 2024).
Still other EPA actions have raised similar questions. In a case involving an action that made “air quality attainment designations covering 61 geographic areas across 24 states—from New York to Hawaii—…
pursuant to a common, nationwide analytical method,”
the Seventh Circuit reached the same conclusion as the
Tenth Circuit for similar reasons. Southern Illinois
21
Power Cooperative v. EPA, 863 F.3d 666, 671 (7th Cir.
2017). The petitioner argued that the action was “just
an amalgamation of many different locally or regionally
applicable agency actions and … that its petition challenges only one,” but the court rejected that “petitionfocused approach,” explaining that what matters is “the
nature of the agency action in question, not the nature
or scope of the petition for review.” Id. In another case
involving NAAQS attainment designations, the Tenth
Circuit reached the same conclusion with respect to two
counties’ challenges to EPA’s 2009 action “explaining
the methodology for determining designations and enumerating [attainment] designations for areas across the
country.” ATK Launch Systems, Inc. v. EPA, 651 F.3d
1194, 1196-1197 (10th Cir. 2011).
And the Eleventh Circuit concluded that the D.C.
Circuit was the proper venue under §7607(b)(1) for reviewing an EPA action that “allocat[ed] … permits [to
several companies] to consume hydrofluorocarbons.”
RMS of Georgia, LLC v. EPA, 64 F.4th 1368, 1369, 13721373 (11th Cir. 2023).
II. THE QUESTION PRESENTED IS IMPORTANT AND RECURRING
A. The venue rules in §7607(b)(1) are highly consequential for EPA’s administration of myriad environmental programs under the Clean Air Act (and the
American Innovation and Manufacturing Act), for all
those who are affected by actions under those programs,
and for the courts that review those actions. Thus, as
this Court previously recognized when granting certiorari to clarify the meaning of “any other final action” in
§7607(b)(1), “certiorari” is warranted “because of the importance of determining the locus of judicial review of
22
the actions of EPA” under §7607(b)(1). Harrison, 446
U.S. at 581, 586.
“It is of first importance to have a [rule] … that will
not invite extensive threshold litigation” over the proper
court to hear a case. Navarro Savings Ass’n v. Lee, 446
U.S. 458, 464 n.13 (1980) (cleaned up). “[L]itigation over
whether the case is in the right court is essentially a
waste of time and resources.” Id. (cleaned up); accord
Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Unclear
venue rules also “encourage gamesmanship,” while undermining the “predictability” that “benefits plaintiffs
deciding [where] to file suit.” Hertz, 559 U.S. at 94-95.
Thus, division and confusion over the Clean Air Act’s
venue provision hurts both the parties in any given case
and the judicial system itself. See Elgin v. Department
of Treasury, 567 U.S. 1, 15 (2012) (rejecting test because
it would “deprive the aggrieved employee, the [agency],
and the district court of clear guidance about the proper
forum for the employee’s claims at the outset of the
case”).
Consequently, the Court has routinely stepped in to
resolve questions about the proper court for particular
classes of disputes. Harrison, Navarro Savings, Hertz,
and Elgin are just the tip of the iceberg. See also, e.g.,
Atlantic Richfield Co. v. Christian, 140 S. Ct. 1335, 1349
n.3 (2020) (“find[ing] it both necessary and prudent to
decide … issue” so as not to “leave the parties in a state
of uncertainty as to whether the litigation is proceeding
in the proper forum” (cleaned up)); National Ass’n of
Manufacturers v. Department of Defense, 583 U.S. 109,
114, 119-120 (2018) (granting certiorari to decide “in
which federal court” challenges to “Waters of the United
States” rule “must be filed”); Perry v. Merit Systems
Protection Board, 582 U.S. 420, 422, 429 (2017) (despite
lack of circuit split, granting certiorari to decide “the
23
proper forum for judicial review” of certain claims under
Civil Service Reform Act); TC Heartland LLC v. Kraft
Foods Group Brands LLC, 581 U.S. 258, 261 (2017)
(granting certiorari to decide “where proper venue lies
for a patent infringement lawsuit”).
B. All these problems and more are on display in
the litigation over the 2022 exemption actions. Small refineries filed duplicative petitions for review in the D.C.
Circuit and six other circuits; the parties had to brief the
venue issue in the six other circuits; and the parties had
to fully brief and argue the merits of the exemption actions in three circuits: the Fifth, Eleventh, and D.C. In
the Eleventh Circuit the parties’ briefing and oral argument on the merits was entirely wasted because that
court eventually dismissed for improper venue.
Worse, because of the circuits’ disagreement on the
venue issue, two different circuits—the Fifth and the
D.C.—will decide the validity of the same EPA actions
based on the same arguments. See infra p.30. Under
§7607(b)(1), the D.C. Circuit’s decision on the merits
should be controlling nationally (unless, of course, this
Court reviews that decision), but the Fifth Circuit’s assertion of authority will leave refineries, intervenors,
and EPA unsure whose decision governs exemption decisions within the Fifth Circuit’s borders. If the Fifth
Circuit’s decision governs there and the D.C. Circuit’s
decision differs in any material respect, then identically
situated small refineries will be treated differently under a national program depending on where they happen
to be located.
Given the annual nature of RFP volume obligations
and, correspondingly, of adjudications of petitions for
small-refinery exemption, these harms will recur absent
clarification from this Court. In 2023, EPA issued
24
another action denying a new round of exemption petitions. Notice of July 2023 Denial of Petitions for Small
Refinery Exemptions Under the Renewable Fuel Standard Program, 88 Fed. Reg. 46,795 (July 20, 2023). Small
refineries have filed (again, sometimes duplicative) petitions to review that action in the D.C. Circuit and seven
other circuits: the Third, Fifth, Seventh, Eighth, Ninth,
Tenth, and Eleventh. See Joint Unopposed Motion to
Stay All Deadlines and Hold Case in Abeyance 5-6 & n.4,
Hunt Refining Co. v. EPA, No. 23-12347, ECF #34 (11th
Cir. Nov. 6, 2023) (collecting cases). Although most of
those cases have been stayed pending resolution of the
challenges to the 2022 exemption actions, the parties will
eventually need to litigate venue in at least some of those
cases and might need to also litigate the merits unnecessarily if a circuit decides that venue is improper at the
merits stage.2
And even that round might not be the end of it. EPA
will continue to adjudicate petitions for small-refinery
exemption in the future. Currently, there are ten pending exemption petitions for 2023, three for 2024, and 38
total, with more anticipated for 2024, 2025, and beyond.
See EPA, RFS Small Refinery Exemptions.3 EPA’s decisions on those exemption petitions will prompt new
rounds of litigation and thus new disputes about venue.
Small refineries whose exemption petitions are denied
might try to shop for a more favorable forum by stretching the statute’s concept of “the appropriate circuit.” Indeed, one refinery has already done that, challenging
2
San Antonio, No. 23-60399 (5th Cir.), and Ergon Refining,
No. 23-60492 (5th Cir.), which are consolidated, are proceeding.
3
https://www.epa.gov/fuels-registration-reporting-and-com
pliance-help/rfs-small-refinery-exemptions (data updated May 16,
2024).
25
EPA’s 2022 and 2023 exemption actions in the Fifth Circuit even though its facility is within the Fourth Circuit,
it operates entirely outside the Fifth Circuit, and it previously challenged a different exemption denial in the
Fourth Circuit. Compare Ergon-West Virginia, Inc. v.
EPA, No. 22-60433 (5th Cir.), and Ergon-West Virginia,
Inc. v. EPA, No. 23-60492 (5th Cir.), with C.A.J.A.33893390, and Ergon-West Virginia, Inc. v. EPA, 896 F.3d
600, 601 (4th Cir. 2018).
The potential for such uncertainty and inconsistency
is intolerable for the RFP. The program has an enormous impact on the country. It governs the nation’s supply of transportation fuel and affects every level of the
supply chain, from producers of petroleum-based and renewable fuels, to transportation-fuel distributors, retailers, and consumers. See Americans for Clean Energy,
864 F.3d at 697. And small refineries are responsible for
more than 10%—several billion gallons—of the renewable fuel to be introduced annually. Compare EPA, RFS
Small Refinery Exemptions,4 with EPA, Renewable
Fuel Annual Standards.5
C. The need to clarify the application of
§7607(b)(1)’s venue provision extends beyond small-refinery exemptions under the RFP. As discussed above,
similar questions and confusion have arisen in the context of other programs—including approvals of SIPs,
designations of attainment areas, and allocations of
4
https://www.epa.gov/fuels-registration-reporting-and-com
pliance-help/rfs-small-refinery-exemptions (data updated May 16,
2024).
5
https://www.epa.gov/renewable-fuel-standard-program/re
newable-fuel-annual-standards (updated June 21, 2023).
26
permits—and are likely to continue to do so absent the
Court’s intervention. Supra pp.18-21.
III. THE DECISION BELOW IS WRONG
Under §7607(b)(1), the D.C. Circuit is the proper
venue for reviewing EPA’s 2022 exemption actions because they are “nationally applicable” and, alternatively,
they are “based on a determination of nationwide scope
or effect” (a finding EPA undisputedly made and published).
The Fifth Circuit’s decision contradicts
§7607(b)(1)’s intended meaning and misunderstands the
nature of EPA’s 2022 exemption actions.
A. Congress Intended For Review Of All Matters
Whose Significance Extends Beyond One Judicial Circuit To Be Centralized In The D.C. Circuit
Section 7607(b)(1) embodies a congressional policy of
respecting regional circuits’ local expertise and interest
in reviewing actions that are “essentially” local, while
protecting national interests and preventing inefficiency
and inconsistency by creating a comprehensive regime
to funnel review of all nationally significant EPA actions
to the D.C. Circuit. Harrison, 446 U.S. at 590-591 (quoting H.R. Rep. No. 95-294, at 323 (1977)). The statute
sends to the D.C. Circuit all actions that govern nationally: petitions to review “any … nationally applicable
regulations promulgated, or final action taken, by the
Administrator under [the Clean Air Act] may be filed
only in the United States Court of Appeals for the District of Columbia.” §7607(b)(1). But because that venue
rule might not catch every nationally significant action,
the statute also sends to the D.C. Circuit—or more precisely, authorizes EPA to select the D.C. Circuit to review—any EPA action that has a significant national ingredient or consequence: petitions to review “any
27
action” by EPA “may be filed only in” the D.C. Circuit if
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 determination.” §7607(b)(1). Thus, unless EPA
declines to make and publish the requisite finding, only
petitions to review truly local and regional actions must
be heard in “the appropriate circuit,” id., i.e., “the circuit
in which [the aggrieved entity] is located,” Harrison, 446
U.S. at 591 (quoting H.R. Rep. No. 95-294, at 323).
These rules reflect the fact that “Congress intended
review in the D.C. Circuit of matters on which national
uniformity is desirable.” 41 Fed. Reg. 56,767, 56,769:1
(Dec. 30, 1976) (statement of EPA general counsel G.
William Frick on behalf of EPA, item No. 1); see S. Rep.
No. 91-1196, at 41 (1970) (explaining venue provision was
adopted because “many” Clean Air Act actions “require
even and consistent national application”). Thus, Congress sought to “centralize review” in the D.C. Circuit
not only of actions that have national force but also of
actions that “involve generic determinations” and “issues” because they too concern all actors irrespective of
location and in turn require uniformity. 41 Fed. Reg. at
56,768:3-56,769:1 (cleaned up). Local review of any such
actions could produce duplicative litigation—since there
are likely to be aggrieved actors in multiple circuits—
leading to wasted resources and inconsistent results on
issues that need consistency. And local review could allow “the validity” of nationally significant actions to
“turn on the particulars of [their] impacts within a given
Circuit” or on the views of a circuit that “would probably
lack frequent exposure to the [Clean Air] Act.” Id. at
56,769:1. By contrast, centralized review of such actions
in the D.C. Circuit “tak[es] advantage of [that court’s]
28
administrative law expertise and facilitat[es] an orderly
development of the basic law under the Act.” Id.6
By using the terms “nationally” and “nationwide,”
Congress obviously intended §7607(b)(1) to funnel into
the D.C. Circuit review of any action that applies or has
scope or effect throughout the country or irrespective of
affected actors’ location.
But Congress more specifically intended “nationally” and “nationwide” to mean actions with application,
scope, or effect in more than one federal judicial circuit.
This is evident from §7607(b)(1)’s text, which states that
review of an action whose application, scope, and effect
are “local[] or regional[]” must be filed “only in the
United States Court of appeals for the appropriate circuit” (emphasis added). Congress’s use of the definite
article shows that for local and regional actions, there is
only one appropriate circuit. And that can be the case
only if the action’s application, scope, and effect are confined to a single circuit; otherwise, each affected circuit
would be equally “appropriate.”
6
In 1977, Congress revised §7607(b)(1) to its current form “to
clarify some questions relating to venue,” by broadening the scope
of covered actions and adding the fallback provision for actions
based on determinations of nationwide scope or effect. H.R. Rep.
No. 95-294, at 323. In connection with that amendment, the statement of Mr. Frick was included with the formal recommendations
of the Administrative Conference of the United States. The portion
of Mr. Frick’s statement quoted above was expressly endorsed in
the report of the House Interstate and Foreign Commerce Committee that accompanied the enacted House bill: “The committee’s view
… concurs … with the comments, concerns, and recommendation
contained in item No. 1 of the separate statement of G. William
Frick, which accompanied the Administrative Conference’s views.”
Id. at 324; see Pub. L. No. 95-95, §305(c)(1), 91 Stat. 685 (1977) (enacting H.R. 6161); H.R. Conf. Rep. No. 95-564, at 140 (1977) (stating
that Congress adopted the House version of the venue provision).
29
Congress certainly knows how to indicate when there
are multiple appropriate jurisdictions—indeed, it did so
in the preceding subsection, where it stated that “the district court … for any district in which such person is
found or resides … shall have jurisdiction” to issue certain
orders. §7607(a). But it did not do so in §7607(b)(1). On
the contrary, the legislative history expressly states that
Congress wanted the D.C. Circuit to be the “exclusive
venue for review” of “any action” based on “a determination which has scope or effect beyond a single judicial
circuit.” H.R. Rep. No. 95-294, at 324 (emphasis added).
This specific understanding also follows from the
statute’s structure and purpose. It would make no sense
to construe “nationally” and “nationwide” so narrowly
that one regional circuit must decide cases in which another regional circuit has an equal interest. Whether
two or all regional circuits are implicated, the undesirable consequences of local review of actions with national
significance are the same: duplicative efforts and potentially inconsistent results, undermining Congress’s substantive objectives, whipsawing the agency, and leaving
regulated entities subject to different rules depending
solely on their location.
B. The 2022 Exemption Actions Must Be Reviewed In The D.C. Circuit Because They Are
Nationally Significant
For several reasons, §7607(b)(1) mandates that the
refineries’ challenges to EPA’s 2022 exemption actions
be heard in the D.C. Circuit because the actions are both
nationally applicable and based on determinations of nationwide scope or effect.
First, the 2022 exemption actions adopt and apply
EPA’s clarified causation requirement and its general
cost-recoupment finding—based on its studies of the
30
national RIN market and various fuel markets—“to all
small refineries no matter the location or market in
which they operate.” App.181a. EPA required every
small-refinery petitioner, regardless of its location, to rebut the general cost-recoupment finding and then show
that the causation requirement was satisfied. Supra
pp.9-11. Indeed, the 2022 actions’ general, national character is reflected in the fact that, in the three exemption
cases in which the merits have been briefed, the refineries have almost exclusively attacked EPA’s general requirements (and the actions’ supposed “retroactive” effect) and have done so using arguments that are independent of individual refineries’ specific circumstances.
See C.A. ECF #270-3, at 34-65, 72-73; Petitioner’s Opening Br. 28-55, Hunt Refining Co. v. EPA, No. 22-11617,
ECF #51 (11th Cir. Feb. 9, 2023); Petitioners’ Final Joint
Opening Br. 34-85, 87-97, 98-103, Sinclair, No. 22-1073,
ECF #2035080 (D.C. Cir. Jan. 9, 2024).
Second, the 2022 exemption actions adjudicate petitions filed by 36 small refineries in fifteen or eighteen
States in eight federal judicial circuits. Supra pp.9-10.
Thus, they span a large proportion of the States and multiple regional circuits—indeed, two-thirds of them.
And third, because of the nature of the RFP and
small-refinery exemptions, every exemption adjudication—whether for one refinery or 36 of them—is inherently national. The RFP establishes national renewablefuel volume requirements. By complying with its RFP
obligations, each obligated party contributes proportionally to the achievement of those required volumes. A decision to exempt an obligated party is necessarily a decision either to create a national renewable-fuel shortfall
relative to the nationally required volume or to increase
the RFP obligations of all non-exempt obligated parties
nationally, wherever they may be (depending on
31
whether EPA accounted for the exemptions in its percentage standards). See supra pp.8-9.
C. The Fifth Circuit’s Analysis Is Thoroughly
Flawed
1. The majority below concluded that the 2022 exemption actions are not “nationally applicable” because
they do not govern “all” small refineries since even their
general “approach” does not “bind[] EPA in any future
adjudication” of exemption petitions. App.12a. That is
mistaken for several reasons.
First, the exemption actions in fact adopt and apply
general requirements to all refineries wherever located:
every refinery must rebut the general finding of cost recoupment and show that its compliance would cause it to
suffer disproportionate economic hardship. In any
event, an action need not apply to all actors in the country to be “nationally applicable”; it need only to apply to
those in a large swath of the country or more than one
judicial circuit, as the exemption actions do.
Second, the majority ignored the fact that EPA expressly made its approach applicable to, and actually applied it to, all pending exemption petitions, and the statute does not distinguish between present and future applicability. App.38a (dissent).
Third, as the dissent observed, the majority’s reasoning “effectively removes all ‘adjudications’ from the
ambit of §7607(b)(1),” contrary to the statutory text.
App.38a. The Act’s venue provision expressly applies
not only to “regulations,” but also to “any … action,”
§7607(b)(1). That phrase “must be construed to mean
exactly what it says,” Harrison, 446 U.S. at 589, and
Congress said it includes adjudications, 5 U.S.C. §551(7),
(13); see Harrison, 446 U.S. at 592-593 (holding that “any
32
… action” is not limited to review of “formal adjudication
[and] informal rulemaking”).
And fourth, “[a]djudication … has future … legal
consequences, since the principles announced in an adjudication cannot be departed from in future adjudications
without reason.” Bowen v. Georgetown University Hospital, 488 U.S. 204, 216-217 (1988) (Scalia, J., concurring).
All the more so here given that EPA adopted and applied its common requirements through the same noticeand-comment process it would use for a rulemaking and
stated in the exemption actions that it would use this
framework “going forward.” App.95a-98a.
2. The majority’s analysis under the statute’s alternative venue test fares no better. The majority gave
“no deference” to EPA’s published finding that the exemption actions are based on determinations of nationwide scope or effect. App.13a, 15a. But EPA’s finding
was at least entitled to review under the arbitrary-andcapricious standard. See §7607(d)(9)(A).
Further, the majority emphasized that, despite the
exemption actions’ reliance on a common causation requirement and the general finding of cost recoupment,
they also necessarily “rel[ied] on refinery-specific determinations” because EPA considered whether each refinery rebutted EPA’s general cost-recoupment finding.
App.15a. But the statute does not send to the D.C. Circuit only those cases that are based purely on determinations of nationwide scope or effect. App.40a-41a (dissent). Rather, the statute asks only whether the action
is based on “a” nationwide determination. §7607(b)(1).
That makes good sense: as long as there is at least one
nationally significant dimension to the action, EPA
should have the ability to centralize review in the D.C.
33
Circuit for all the reasons why Congress enacted the
venue provision. Supra pp.27-28.
IV. THIS CASE IS AN IDEAL VEHICLE
This case is an ideal vehicle to resolve the question
presented. The panel below issued a published decision
analyzing the 2022 exemption actions under both of
§7607(b)(1)’s venue tests. The Eleventh Circuit did the
same, and then both the Fifth and Eleventh Circuits denied rehearing notwithstanding the other’s contrary decision. The D.C. Circuit is unlikely to address venue, see
supra p.14, and in any event the D.C. Circuit could not
override the Fifth or Eleventh Circuit’s venue ruling.
Also, this case will not necessarily be resolved by a
decision in Oklahoma/PacifiCorp because this case presents distinct issues. First, unlike the decision below, the
Tenth Circuit’s decision in Oklahoma did not “address”
whether EPA’s 2023 SIP action was “based on a determination of nationwide scope or effect.” Oklahoma, 93
F.4th at 1269 n.8. Second, unlike SIP disapprovals, which
relate only to individual States’ compliance, RFP exemptions necessarily affect the achievement of a unified national standard by either creating a national shortfall or
increasing all non-exempt parties’ obligations nationwide. Third, unlike RFP exemptions, SIP approval decisions potentially raise federalism concerns because SIPs
are proposed by States and §7607(b)(1) expressly calls
SIP “approv[als]” “locally or regionally applicable.” And
fourth, whereas each disapproval in the 2023 SIP action
apparently “was based entirely on [each State’s] particular circumstances and [EPA’s] analysis of those circumstances,” West Virginia, 90 F.4th at 329, the 2022 exemption actions adopted and relied on a common statutory
interpretation and a general factual finding to adjudicate
each exemption petition, cf. id. at 330 (distinguishing case
34
where “the reason for rejecting all state SIPs was based
on circumstances common to all States”).
CONCLUSION
The Court should grant the petition. It should do so
even if it grants the petitions in Oklahoma/PacifiCorp
because this case presents distinct issues that would not
necessarily be resolved by decision in Oklahoma/PacifiCorp. If the Court grants both this petition and the petitions in Oklahoma/PacifiCorp, it should hear the cases
in tandem.
Respectfully submitted.
DAVID M. LEHN
JAY SCHUFFENHAUER
BOIES SCHILLER FLEXNER LLP
1401 New York Avenue NW
Washington, DC 20005
(202) 237-2727
dlehn@bsfllp.com
SETH P. WAXMAN
Counsel of Record
MICHAEL A. MOORIN
WILMER CUTLER PICKERING
HALE AND DORR LLP
2100 Pennsylvania Avenue NW
Washington, DC 20037
(202) 663-6800
seth.waxman@wilmerhale.com
EVAN M. EZRAY
BOIES SCHILLER FLEXNER LLP
401 East Las Olas Boulevard Counsel for Petitioners
Suite 1200
Fort Lauderdale, FL 33301 MATTHEW W. MORRISON
(954) 377-4237
SHELBY L. DYL
PILLSBURY WINTHROP
Counsel for Growth Energy
SHAW PITTMAN LLP
1200 Seventeenth Street NW
Washington, DC 20036
(202) 663-8036
matthew.morrison@
pillsburylaw.com
MAY 2024
Counsel for the Renewable
Fuels Association
APPENDIX
APPENDIX
TABLE OF CONTENTS
Page
APPENDIX A: Opinion of the United States
Court of Appeals for the Fifth Circuit, dated
November 22, 2023 ..................................................... 1a
APPENDIX B: U.S. Environmental Protection
Agency’s June 2022 Denial of Petitions for
RFS Small Refinery Exemptions .......................... 43a
APPENDIX C: Order of the United States
Court of Appeals for the Fifth Circuit
denying petitions for panel rehearing and
rehearing en banc, filed January 22, 2024 ........... 183a
APPENDIX D: 42 U.S.C. §7545(o)............................ 187a
APPENDIX E: 42 U.S.C. §7607 ................................ 215a
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.