Senators ask GAO if SRE denials require congressional review

By Erin Voegele | June 14, 2022

Sens. Bill Hagerty, R-Tenn.; Shelly Moore Capito, R-W.V.; and Roger Wicker, R-Miss., are asking the U.S. Government Accountability Office to determine whether the U.S. EPA’s June 3 denial of 69 small refinery exemptions (SREs) under the Renewable Fuel Standard must be submitted to Congress for review under the Congressional Review Act.

The three senators sent a letter to U.S. Comptroller General Gene Dodaro on June 9 asking him to review whether the EPA’s denial of 69 SREs on June 3 constitutes a rule for purposes of the CRA. The CRA, signed into law in 1996, requires the GAO to report on major rules that federal agencies make. Federal agencies promulgating rules must submit a copy to both houses of Congress and the GAO before the rules can take effect. The CRA also empowers Congress to overturn rules issued by federal agencies via passage of a joint resolution.

According to the letter, the EPA has asserted that its action to deny the 69 SREs is not a rulemaking. The senators, however, argue that the “denial appears to be an agency statement of future effect that is designed to implement, interpret, and prescribe law and policy.”

“The U.S. Government Accountability Office has previously found that agency documents may constitute a ‘rule’ under the Congressional Review Act irrespective of the label given by an agency,” the senators wrote. “The proposed denial was issued by EPA and made available for public comment in the Federal Register, a process generally required under the Administrative Procedure Act.”

The senators also noted that the denial is not limited to small refineries with pending petitions and has general, future applicability, suggesting that it constitutes a rule. “As it set forth an approach to evaluate SRE petitions, this has future effect, with EPA noting in the Federal Register the proposal would apply to 65 ‘pending/undecided’ petitions… The denial is also of general applicability since it applies to all small refineries, whether they had a pending hardship petition or not," the senators wrote. "Therefore, this decision not only applies to all small refineries, but as a practical matter would affect all obligated parties under the national RFS program. The denial is not limited in scope and would apply nationwide.”

A full copy of the letter can be downloaded from Hagerty’s website