by Jim Lane
In Washington, what must have become a weary if vigilant posse of the nation’s biofuel and farm advocates are out on the hustings again this week, over a fresh attack on the US Renewable Fuel Standard, this one led by officials in the Trump Administration, if a story reported by Bloomberg stands up against scrutiny.
What has been described as a “misinformation campaign spearheaded by Senator Ted Cruz” is seeking to overturn a unanimous court decision that would halt the Environmental Protection Agency’s abuse of Small Refinery Exemptions (SREs) under the Renewable Fuel Standard.
In a unanimous panel, the Tenth Circuit held that EPA abused its discretion in granting SREs to three small refineries in 2016 because the statute allows the agency only to grant an extension of exemptions that have been continuously extended and in effect since 2011. In the case of these three refineries, there were no previous exemptions to “extend.” The Court also held that EPA exceeded its authority by granting SREs that were based in part on economic hardship unrelated to RFS compliance. Finally, the Court ruled that even if EPA had the authority to grant the SREs, its decision was nonetheless arbitrary and capricious because EPA failed to address its own analysis that refineries recover their RFS compliance costs.
The Whole Darn Story
We covered the controversy and the Tenth Circuit’s actions in Hardship Relief: Tenth Circuit strikes down three small oil refinery waivers in win for renewable fuels.
Statements from the stakeholders
The following joint statement was issued by the National Corn Growers Association, the Renewable Fuels Association, the American Soybean Association, the National Farmers Union, Growth Energy, the American Coalition for Ethanol, the National Biodiesel Board, the Iowa Renewable Fuels Association, and Fuels America.
“The president needs to understand that Ted Cruz doesn’t care about this administration or families across the heartland who are counting on the White House to keep its promises. Just days ago, thousands of farmers rallied behind Secretary Perdue, who expressed his confidence that we had finally reached the end of a long and painful fight against EPA demand destruction. Tearing open that wound, against the advice of rural champions and the president’s own advisors, would be viewed as a stunning betrayal of America’s rural workers and farmers. We cannot stress enough how important this decision is to the future of the rural economy and to President Trump’s relationship with leaders and voters across the heartland. Ted Cruz comes back year after year with the same lies about refinery profits, disproven over and over by economists, the EPA, and even by Big Oil. We urge the president to stand up now against this misguided effort to torpedo the rural recovery.”
BIO VP for Industrial and Environmental section, Stephanie Batchelor, added:
“It’s very unfortunate to hear the administration has chosen to go in this direction,They are doubling down on policies that have already been determined illegal and will be reaffirmed by the courts. This delay will only increase the pain biofuel producers and farmers are already feeling; further undermining innovation and investment in sustainable fuels.”
The Iowa Corn Growers Association chimed in.
“If EPA appeals this case, the EPA is not doing their job or following their mission to protect human and environmental health. Instead the EPA is involved in politics and their decision not to follow the Court’s direction to implement the RFS law as intended and allow oil companies to abuse the use of RFS waivers. The abuse will allow less renewable fuels that are proven to have benefits to human health and our environment,” says ICGA President Jim Greif and farmer from Monticello, Iowa. “Ethanol is a renewable fuel that is clean burning and homegrown. In addition, the RFS provides market access for corn farmers and the ethanol industry to provide just ten and up to fifteen percent of the fuel supply in the U.S. To say we are frustrated and disappointed is an understatement. As we prepare for spring planting and a new growing season, we need market assurances and access rather than the continued fight we are faced with and having to defend the law and Court’s decision to follow the RFS.”
The Bottom Line
The appeal is going to have to be taken up by the US Supreme Court, since this was a 10th Circuit Court of Appeal decision, and 1.1 percent of all cases are granted a writ of certiorati by the Supreme Court. And, these are in cases where there is judicial controversy — such as disagreements between two federal judicial circuits.
It takes four justices to bring the Supreme Court into the picture — to some extent, we might see this as a delaying tactic by the Trump Administration, since the ruling does not appear to be particularly, as the phrase goes, “cert worthy”.