Updated Thursday, Jan. 21, with new information regarding court approval.
The Renewable Fuels Association filed a petition for review and an emergency motion to stay the effectiveness of three small refinery exemptions granted Tuesday evening by the U.S. Environmental Protection Agency with less than 24 hours remaining in the Trump administration. In a response Thursday morning, the U.S. Court of Appeals for the D.C. Circuit ordered that EPA's action be "administratively stayed pending further order of the court."
The order prevents EPA from further processing the small refinery exemptions at least until the court has had "sufficient opportunity to consider the emergency motion for stay." EPA has until February 3 to respond to the motion, and any replies are due to the court by February 10, RFA said in a statement.
“EPA’s decision will inflict substantial, immediate, and irreversible harm” on U.S. ethanol producers, according to RFA’s emergency motion, which was filed in the U.S. Court of Appeals for the D.C. Circuit, just hours after EPA publicly disclosed the new waivers. “This would be devastating to America’s ethanol producers, many of which are already on the brink of closure due to the ongoing impact of the COVID-19 pandemic.”
Data released by EPA Tuesday evening show that the two 2019 compliance exemptions reduced that year’s RFS standards by 150 million gallons, while one 2018 exemption erased 110 million gallons of renewable fuel requirements. The total eliminated volume of 260 million gallons is equivalent to shutting down three or four ethanol plants for a full year, or akin to erasing the total statewide annual ethanol consumption from Maryland, Massachusetts or South Carolina, the RFA says.
“The waivers issued by EPA Tuesday evening are completely without legal merit, and we took this action immediately to prevent the agency from doing further economic damage to an industry already reeling from the impacts of COVID-19,” says RFA President and CEO Geoff Cooper. “To avert additional harm to the ethanol industry, EPA must be prevented from returning any compliance credits (RINs) to the unidentified refiners who were given these last-minute exemption handouts.”
Following the waiver announcement Tuesday evening, biofuel supporters were hopeful that a Biden administration would quickly reverse the damage done by the waiver approvals.
“Given President-elect Biden’s commitments on the campaign trail, we‘re confident his incoming team will swiftly work to reverse the damage these oil handouts have done to rural America by this midnight maneuvering,” says Growth Energy CEO Emily Skor.
The waivers come less than two weeks after the U.S. Supreme Court announced it will review the Tenth Circuit Court’s decision in RFA et al. v. EPA, which found EPA had exceeded its statutory authority in granting three exemptions. Previously, Wheeler had claimed EPA would not decide any pending waiver petitions until any and all appeals of the Tenth Circuit decision were resolved.