Court denies NBB’s petition for review regarding 2018 RFS rule

By Erin Voegele | September 09, 2019

The U.S. Court of Appeals for the D.C. Circuit issued a judgement Sept. 6 denying three petitions for review filed regarding the U.S. EPA’s 2018 Renewable Fuel Standard rule, including one filed by the National Biodiesel Board. The court, however, granted a joint petition for review filed by environmental groups.

The NBB first filed the petition for review with the court in February 2018. According to court filings, the NBB “petitioned for view of the 2018 rule on the ground that the rule set applicable volumes and percentage standards too low” and contends “that the EPA impermissibly considered financial costs with deciding to set applicable volumes of advanced biofuels below reasonably attainable levels.” The NBB also argued “that the EPA should have accounted for retroactively granted small refinery exemptions in calculating percentage standards.”

The court dismissed the NBB’s petition on technical grounds. According to the court, the NBB “did not make it current challenge during the 2018 rulemaking.” Court documents explain that under the Clean Air Act, only an objection to a rule or procedure that was raised with reasonable specificity during the period of public comment may be raised during judicial review.

The NBB issued a statement Sept. 6 expressing frustration with the court’s decision. “The NBB challenged EPA’s decision to continue ignoring small refinery exemptions granted after the annual rule is established, even though the agency quietly ramped up granting these exemptions as it took comment on the rule,” the NBB said in a statement. “The court dismissed NBB’s petition on the grounds that the biofuel industry did not comment on the topic and provide EPA sufficient opportunity to address those comments. The court declined to examine EPA’s flood of small refinery exemptions, but left room for future challenges on the issue.”

"The court's decision is frustrating. EPA requested comment on its practice of ignoring retroactive small refinery exemptions but did not give notice of its intent to unleash a flood of the exemptions,” said Kurt Kovarik, vice president of federal affairs at the NBB. “The court, however, faults the industry for not commenting specifically on that.

"EPA's flood of retroactive small refinery exemptions are causing severe economic harm to biodiesel and renewable diesel producers, forcing some to close their doors and lay off workers,” Kovarik continued. “It's disappointing that the court did not take this opportunity to address that harm."

The court also denied petitions for review filed by American Fuel & Petrochemical Manufacturers and Valero Energy Corp. that challenged the 2018 RFS rule as setting applicable volumes and percentage standards too high. A joint petition for review filed by the Sierra Club and Gulf Restoration Network, however, was granted by the court. That joint petition claims that the EPA violated the Endangered Species Act by failing to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regarding whether the 2018 RFS rule would adversely affect threatened or endangered species.