Reports indicate Trump will deny RFS waivers

EPA told to deny 67 gap-year waivers dating as far back as 2011.

September 9, 2020

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President Donald Trump has directed the Environmental Protection Agency to reject dozens of so-called “gap year” small refinery exemption (SRE) petitions intended to circumvent the 10th Circuit Court’s decision in RFA et al. vs. EPA, according to a Reuters news report.

The Renewable Fuels Assn. (RFA), National Corn Growers Assn. (NCGA), National Farmers Union (NFU) and American Coalition for Ethanol (ACE) welcomed the news after months of urging the Administration to take action the SREs, which have been blamed for diminishing demand for corn-based ethanol.

“We are encouraged by reports that President Trump has called upon EPA to reject these absurd gap-year waiver petitions out of hand. If the reports are accurate, it is our hope that EPA swiftly acts upon the President’s directive and closes the door once and for all on the refiners’ brazen attempt to rewrite history,” the groups said in a joint statement.

Meanwhile, the groups denounced a last-minute request by CVR Refining and HollyFrontier Corp., filed late on Sept. 4, for the U.S. Supreme Court to review the 10th Circuit ruling. The decision in question overturned three improperly granted SREs under the Renewable Fuel Standard (RFS).

RFA, NCGA, NFU and ACE were the four petitioners in the successful 10th Circuit case in which a panel of judges unanimously found that EPA had abused its authority by granting the SREs to CVR Refining and HollyFrontier that were not extensions of previously existing exemptions. In the wake of the decision, small refineries flooded EPA with 67 petitions for retroactive waivers — some dating back as far as 2011 — in an attempt to establish a chain of continuously “extended” exemptions.

Related:Nearly 100 RFS exemption requests await EPA action

“At the same time, we are disappointed, but not surprised, by the refiners’ 11th-hour petition to the Supreme Court to review the 10th Circuit decision,” the industry groups said. “In April, these same refiners asked the 10th Circuit to rehear the case, and the court swiftly and unanimously denied that request -- and the Supreme Court should do the same. The decision does not warrant any further review or consideration. It is well reasoned and based on a plain reading of the Clean Air Act, which clearly intended small refinery exemptions to be temporary and used only as a ‘bridge to compliance’ for certain eligible small refineries. Additionally, there are no conflicting decisions in other federal courts of appeal.”

The groups also said it is also telling that EPA — the defendant in the original litigation — did not request a rehearing in the 10th Circuit, nor did it join the refiners’ Supreme Court appeal on any aspect of the decision. “Now, more than ever, our nation’s farmers and ethanol producers are counting on the RFS to provide market stability and certainty during an incredibly difficult and tumultuous time,” the organizations said.

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