Wynnewood Refining Company, L.L.C. v. EPA
U.S. Court of Appeals for the Fifth Circuit
Wynnewood Refining Company, L.L.C. v. EPA
Opinion
Case: 22-60266 Document: 00516976800 Page: 1 Date Filed: 11/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 22, 2023
No. 22-60266
Lyle W. Cayce
____________ Clerk
Calumet Shreveport Refining, L.L.C.;
Placid Refining Company, L.L.C.;
Ergon Refining, Incorporated;
Wynnewood Refining Company, L.L.C.,
Petitioners,
versus
United States Environmental Protection Agency,
Respondent,
consolidated with
_____________
No. 22-60425
_____________
Wynnewood Refining Company, L.L.C.;
Calumet Shreveport Refining, L.L.C.;
San Antonio Refinery, L.L.C.;
Petitioners,
versus
United States Environmental Protection Agency,
Respondent,
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consolidated with
_____________
No. 22-60433
_____________
Ergon Refining, Incorporated;
Ergon-West Virginia, Incorporated,
Petitioners,
versus
United States Environmental Protection Agency,
Respondent,
consolidated with
_____________
No. 22-60434
_____________
Placid Refining Company, L.L.C.,
Petitioner,
versus
United States Environmental Protection Agency,
Respondent.
2
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______________________________
Petitions for Review of Actions of
the Environmental Protection Agency
Agency Nos. 87 Fed. Reg. 24300,
87 Fed. Reg. 34873, EPA-420-R-22-011,
87 Fed. Reg. 34873,
87 Fed. Reg. 34873
______________________________
Before Higginbotham, Smith, and Elrod, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Six small refineries1 (“petitioners”) challenge the EPA’s decision to
deny their requested exemptions from their obligations under the Renewable
Fuel Standard (“RFS”) program of the Clean Air Act (“CAA”). The EPA
denied petitioners’ years-old petitions using a novel CAA interpretation and
economic theory that the agency published in December 2021. We conclude
that the denial was (1) impermissibly retroactive; (2) contrary to law; and
(3) counter to the record evidence. We grant the petitions for review, vacate
the challenged adjudications, deny a change of venue, and remand.
I.
A. Statutory and Regulatory Background
In 2005 and 2007, Congress amended the CAA, 42 U.S.C. § 7401
et seq., to establish the RFS.2 That program mandates annual increases in
“applicable volumes” of four categories3 of renewable fuel for the transpor-
_____________________
1
(1) Calumet Shreveport Refining, L.L.C. (“Calumet”); (2) Placid Refining Com-
pany, L.L.C. (“Placid”); (3) Ergon Refining, Incorporated (“Ergon”); (4) Wynnewood
Refining Company, L.L.C. (“Wynnewood”); (5) The San Antonio Refinery, L.L.C.
(“TSAR”); and (6) Ergon-West Virginia, Incorporated (“Ergon-WV”).
2
See Energy Policy Act of 2005, Pub. L. No. 109-58, 119Stat. 594; Energy Inde- pendence and Security Act of 2007,Pub. L. No. 110-140, 121
Stat. 1492.
3
(1) renewable fuel; (2) advanced biofuel; (3) cellulosic biofuel; and (4) biomass-
3
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tation sector. Id. § 7545(o)(2)(B)(i)(I)–(IV).
To implement the RFS, Congress delegated to EPA the authority to
(1) set annual renewable fuel percentage standards and (2) establish an RFS
compliance program. See id. § 7545(o)(3), (7). EPA sets the annual percen-
tage standards based on the amount of renewable fuel needed to meet the
statutorily stipulated volume requirements in § 7545(o)(2). Obligated
parties—refiners, blenders, and importers of transportation fuel—use that
annual-percentage standard to determine their volume obligations for the
four categories of renewable fuel. See 40 C.F.R. § 80.1406. Obligated parties must satisfy their individual volume obligations by the RFS annual compli- ance date set by EPA.Id.
§ 80.1451(f)(1)(i)(A).
EPA tracks obligated parties’ RFS compliance with a credit-trading
program. Credits are called Renewable Identification Numbers (“RINs”).
There are two ways blenders may acquire RINs: First, they can generate
RINs by blending renewable fuel into conventional fuel. See id. § 80.1429(b).
That’s because RINs are “attached” to the renewable fuel the obligated
party buys for its blending operation. Once blending has occurred, the RIN
“separates” and exists independently of any batch of fuel. See id.
§§ 80.1425–29. Second, obligated parties can meet their annual volume obli-
gations by purchasing RINs from other obligated parties. See generally id.
§§ 80.1425–29; 42 U.S.C. § 7545(o)(5)(B).
RINs are generally fungible—with one catch. A RIN may be used for
compliance only during the calendar year in which it was generated or the
calendar year following. 40 C.F.R. § 80.1427(a)(6)(i); see alsoid.
§§ 80.1428(c), 80.1431(a)(iii). For example, a RIN that was created in 2018
can be used only to meet an obligated party’s 2018 or 2019 RFS volume
_____________________
based diesel. 42 U.S.C. § 7545(o)(2)(B)(i)(I)–(IV).
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obligations. See id. § 80.1427(a)(6).4 Obligated parties demonstrate they
have met their volume obligations—thereby complying with RFS—by
“retiring” their RINs at their annual compliance demonstration. Id.
§ 80.1427(a)(1).
Congress, recognizing that RFS might impose disproportionate econ-
omic hardship on “small refineries”5 from RFS, created three exemptions
from the compliance regime:
• First is the blanket exemption, which automatically exempted all small
refineries from RFS until 2011. 42 U.S.C. § 7545(o)(9)(A)(i).
• Second is the refinery-specific exemption initiated by the Secretary of
Energy. If, after conducting the statutorily mandated Department of
Energy study, the Secretary determined that a small refinery was subject
to a disproportionate economic hardship, “the Administrator shall ex-
tend the exemption under clause (i) for the small refinery for a period of
not less than 2 additional years.” Id. § 7545(o)(9)(A)(ii).
• Third, the subparagraph (B) exemption allows small refineries to “peti-
tion the Administrator for an extension under subparagraph (A) for the
reason of disproportionate economic hardship.” Id. § 7545(o)(9)(B)(i).
“In evaluating a petition . . . the Administrator, in consultation with the
Secretary of Energy, shall consider the findings of the study under subpar-
agraph (A)(ii) and other economic factors.” Id. § 7545(o)(9)(B)(ii).
_____________________
4
That is not to say that a RIN generated in 2018 becomes valueless in 2020—RINs
do not turn into pumpkins after their expiration date. An unretired 2018 RIN remains
transactable in 2023 to the extent other obligated parties create demand for RINs that can
be used to meet 2018 or 2019 compliance year requirements. See id. §§ 80.1427(a)(6),
80.1428(c), 80.1431(a).
5
The CAA defines small refineries as those “for which the average aggregate daily
crude oil throughput for a calendar year (as determined by dividing the aggregate through-
put for the calendar year by the number of days in the calendar year) does not exceed 75,000
barrels.” 42 U.S.C. § 7545(o)(1)(K).
5
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Further, “[t]he Administrator shall act on any petition . . . not later than
90 days after the date of receipt.” Id. § 7545(o)(9)(B)(iii).
B. Procedural History
This matter involves the last of the three small refinery exceptions
enumerated in the CAA. Petitioners challenge two EPA actions—each of
which adjudicated and denied multiple exemption petitions (“Denial
Actions”): The first is EPA’s April 7, 2022, action “denying 36 petitions
from 36 small refineries seeking exemption from their [RFS] obligations for
the 2018 compliance year” (“April Denial”).6 The second is EPA’s June 8,
2022, action denying “denying 69 petitions from 33 small refinery petitioners
seeking exemption from their [RFS] obligations for the 2016–2021 compli-
ance years” (“June Denial”).7
1. The April Denial
On April 7, 2022, EPA published the April Denial—that is, the
agency’s final adjudications rejecting a total of thirty-six small refinery
exemption petitions for the 2018 compliance year. Among those were peti-
tions submitted by Calumet, TSAR, Ergon, Placid, and Wynnewood. 8 EPA
denied those petitions using its revised interpretation of the subparagraph (B)
exemption provision and RIN-passthrough economic theory.
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6
EPA, EPA-420-R-22-005, April 2022 Denial of Petitions for RFS Small Refinery
Exemptions, at 1 (2022); see also April 2022 Denial of Petitions for Small Refinery
Exemptions Under the Renewable Fuel Standard Program, 87 Fed. Reg. 24,300 (April 25,
2022).
7
EPA, EPA-420-R-22-011, June 2022 Denial of Petitions for RFS Small Refinery
Exemptions, at 1 (2022); see also Notice of June 2022 Denial of Petitions for Small Refinery
Exemptions Under the Renewable Fuel Standard Program, 87 Fed. Reg. 34,873 (June 8,
2022).
8
Ergon-WV’s 2018 exemption petition was not adjudicated in the April Denial.
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Notably, the April Denial was not the first time EPA had evaluated
these thirty-six petitions. Indeed, thirty-one of them had been granted by
EPA in 2019.9 These August 2019 grants were subsequently ensnared in pro-
ceedings litigated in the D.C. Circuit unrelated to the dispute at hand. What
is relevant, however, is that EPA moved for voluntary remand without vaca-
tur to consider those petitions with regard to the Tenth Circuit’s “alternate
holdings” in Renewable Fuels Ass’n v. EPA (“RFA”).10 The D.C. Circuit
granted EPA’s motion on December 8, 2021.11 Shortly thereafter, EPA pro-
vided notice of its intent to include those previously decided petitions in the
April Denial action.12
2. The June Denial
EPA once again applied its new interpretation and approach in June
2022 when it denied sixty-nine exemption petitions for the 2016 through
2021 RFS compliance years. Among those were petitions from (1) Calumet
for 2019 and 2020; (2) TSAR for 2019, 2020, and 2021; (3) Ergon for 2019
and 2020; (4) Ergon-WV for 2019 and 2020; (5) Placid for 2019 and 2020;
and (6) Wynnewood for 2017, 2019, 2020, and 2021.
EPA’s new interpretation and approach—which it applied in the
Denial Actions—displaced the adjudicative methodology the agency had
_____________________
9
Memorandum Decision on 2018 Small Refinery Exemption Petitions from Anne
Idsal, Acting Asst. Admin’r, Off. of Air and Rad. to Sarah Dunham, Dir., Off. of Transp.
and Air Qual. (Aug. 9, 2019), at 2.
10
948 F.3d 1206(10th Cir. 2020), rev’d on other grounds sub nom. HollyFrontier Cheyenne Ref., LLC v. RFA,141 S. Ct. 2172
(2021) (“HollyFrontier”) and vacated, No. 18-9533,2021 WL 8269239
(10th Cir. July 27, 2021).
11
RFA v. EPA, No. 19-1220, Doc. 1925942, at 3 (D.C. Cir. Dec. 12, 2021).
12
EPA, EPA-HQ-OAR-2021-0566, Scope of Action and Notifica-
tions (2022).
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relied on for over a decade. In that prior approach, EPA granted and denied
petitions based on DOE’s findings through its application of the DOE scoring
matrix. That scoring matrix—developed as part of the statutorily-mandated
2011 DOE study—“was designed to evaluate the full impact of dispropor-
tionate economic hardship on small refiners and used to assess the individual
degree of potential impairment.”13 But, starting with the April Denial, EPA
has now completely abandoned the scoring matrix.
Instead, EPA now adjudicates petitions using an approach it an-
nounced in a December 2021 publication.14 That approach rests on two com-
ponents.
First is a revised interpretation of the statutory term “disproportion-
ate economic hardship” as used in 42 U.S.C. § 7545(o)(9)(A)–(B). Under
the agency’s new interpretation, a small refinery’s disproportionate econ-
omic hardship must be caused solely by RFS compliance costs.15
Second is a new economic theory. Called “RIN passthrough,” EPA
now theorizes that (A) the “cost of RINs is the same for all obligated parties,
whether the RINs are acquired by blending renewable fuel or by buying them
on the market” and (B) the “costs of RFS compliance (i.e., RINs) are passed
through in the prices of refined products.”16
Before us now are petitions for review of EPA’s Denial Actions. Peti-
_____________________
13
Off. of Pol’y & Int’l Affs., U.S. Dep’t of Energy, Small Refinery Exemption
Study: An Investigation into Disproportionate Economic Hardship (2011), at 32 (“2011
DOE Study”).
14
See Notice of Opportunity to Comment on Proposed Denial of Petitions for Small
Refinery Exemptions, 86 Fed. Reg. 70,999 (Dec. 14, 2021).
15
See EPA, EPA-420-D-21-001, Proposed RFS Small Refinery Exemption Deci-
sion, at 23–26 (Dec. 2021) (“Proposed Denial”).
16
Id. at 62.
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tioners contend the Denial Actions are impermissibly retroactive, contrary to
law, and arbitrary and capricious. For the reasons that follow, we agree.
Accordingly, we vacate and remand petitioners’ exemption petitions adjudi-
cated in the Denial Actions.
II.
Before we proceed to the merits of petitioners’ contentions, we must
address EPA’s motion to transfer venue to the D.C. Circuit under 42 U.S.C.
§ 7607(b)(1).17
The CAA includes a statutory channeling provision delineating the
appropriate venue in which a petitioner may seek judicial review of agency
action:
A petition for review of . . . any . . . nationally applicable
regulations promulgated, or final action taken, by the Admin-
istrator under this chapter may be filed only in the United
States Court of Appeals for the District of Columbia. A peti-
tion for review of the Administrator’s action . . . under this
chapter . . . which is locally or regionally applicable may be filed
only in the United States Court of Appeals for the appropriate
circuit. Notwithstanding the preceding sentence a petition for
review of any action referred to in such sentence may be filed
only in the United States Court of Appeals for the District of
Columbia if such action is based on a determination of nation-
wide scope or effect and if in taking such action the Adminis-
trator finds and publishes that such action is based on such a
determination.
42 U.S.C. § 7607(b)(1).
Determining where proper venue lies under § 7607(b)(1) requires us
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17
See Order, No. 22-60266 (5th Cir. Oct. 21, 2022) (motions panel ordering the
threshold issue of venue to carry with the merits).
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to conduct a two-step analysis: At the first step, we determine whether the
challenged agency action is “nationally applicable” as distinguished from
“locally or regionally applicable.” Id. If nationally applicable, our inquiry
ends because proper venue exists only in the D.C. Circuit. But if the chal-
lenged action is “locally or regionally applicable,” we proceed to step two.
That second step begins with the default presumption that venue is
proper in this circuit. See Texas v. EPA, 829 F.3d 405, 419 (5th Cir. 2016)
(“Texas 2016”). To overcome that default presumption, a challenged action
must satisfy two necessary and independent sub-conditions. Namely, we
must determine that (a) the challenged action “is based on a determination
of nationwide scope or effect” and (b) the Administrator, in taking that chal-
lenged action, “finds and publishes that such action is based on such a deter-
mination.” Only if both sub-conditions are satisfied is venue proper solely in
the D.C. Circuit.
A. Step One
EPA first avers the Denial Actions are “nationally applicable” agency
actions because they “apply a consistent statutory interpretation and econ-
omic analysis to small refineries nationwide.” The agency analogizes the
Denial Actions to the SIP Calls in Texas v. EPA, where this court reasoned
that the agency’s disapproval of and call to correct thirteen states’ plans
regarding air quality standards was a “nationally applicable regulation.”
No. 10-60961, 2011 WL 710598, at *3 (5th Cir. Feb. 24, 2011) (“Texas
2011”). The agency contends the Denial Actions, like the SIP Calls, rest on
“a revised interpretation of the relevant CAA provisions and the RIN dis-
count and RIN cost passthrough principles that are applicable to all small
refineries no matter the location or market in which they operate.”
We disagree with EPA’s position. In-circuit precedent counsels that
it is the legal effect—and not the practical effect—of an agency action that
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determines whether that action is “nationally applicable.” See Texas 2016,
829 F.3d at 419. That is the key distinction between the SIP Call in Texas 2011 and the Denial Actions in this case. The SIP Call in Texas 2011 was sufficient—by itself—to change regulated entities’ legal obligations. It required all states to apply their “prevention-of-significant-deterioration” programs to “greenhouse-gas-emitting sources.”2011 WL 710598
, at *1–2. States whose plans already met that requirement were just as bound as states with violative plans. Seeid.
at *4–5.
Not so with the “new approach” EPA used in the Denial Actions.
EPA may swear that the new approach will apply in all future exemption
petitions. But it cannot be said that EPA’s promise to apply its “new
approach”—as described in the Denial Actions—affects the legal rights,
duties, or obligations of any small refinery whose exemption petitions were
not the subject of the April Denial or June Denial. The agency’s promise is
naked—neither the new interpretation nor the RIN pass through theory
binds EPA in any future adjudication.18
The Denial Actions are not “nationally applicable.” They are,
instead, “locally or regionally applicable.” We must therefore proceed to the
second step.
B. Step Two
We begin step two with the presumption that venue is proper in this
circuit. That’s because we have already determined, at step one, that the
agency action is “locally or regionally applicable.” See Texas 2016, 829 F.3d
at 419. A challenged action overcomes that presumption if (1) it is based on
a determination of nationwide scope or effect, and (2) the Administrator, in
_____________________
18
EPA unsuccessfully asserts that its new interpretation and theory are imbued
with the force of law and therefore binding on the agency. See infra part V.
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taking such action, “finds and publishes that such action is based on such a
determination.” 42 U.S.C. § 7607(b)(1). EPA claims the Denial Actions
meet both sub-conditions.
We begin with the second sub-condition—whether the Administrator
found and published that such an action was based on a determination of
nationwide scope or effect. That is easily met, as no party contests that the
Administrator so found and published in each of the Denial Actions.19
What the parties dispute is the accuracy of the Administrator’s finding.
And that is addressed in the first sub-condition.
The parties initially skirmish on the applicable standard of review for
the first sub-condition. EPA asserts that we review its determination under
a deferential standard, but petitioners contend that we owe no deference at
all. Petitioners are correct. As explained in Texas 2016, we “independent[ly] assess[]” whether the action is based on a determination of nationwide scope or effect.829 F.3d at 420
(citation omitted).
The agency’s assertion to the contrary finds little support: All EPA
cites to buttress its position is a nineteen-year-old, non-precedential decision
in which the D.C. Circuit rejected a motion to transfer after it noted that “the
Administrator has unambiguously determined that the final action . . . has
nationwide scope and effect.” Alcoa, Inc. v. EPA, No. 04-1189, 2004 WL
2713116, at *1 (D.C. Cir. Nov. 24, 2004). That is not enough, especially given that that same assertion was subsequently dismissed in Dalton Trucking, Inc. v. EPA,808 F.3d 875
(D.C. Cir. 2015). There, the D.C. Circuit characterized
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19
See 87 Fed. Reg. at 24,301 (“the Administrator is exercising the complete discre-
tion afforded to him by the CAA and hereby finds that this final action is based on a deter-
mination of nationwide scope or effect for purposes of CAA section 307(b)(1) and is hereby
publishing that finding in the Federal Register.”); id. at 34,874 (same).
12
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EPA’s assertion “that venue in this circuit is ‘compelled by [its] published
determination that an action would have a nationwide scope or effect’” as
nothing more than a “transparent sleight of hand that does not persuade.”
Id. at 881 (citation omitted). Consequently, we do not accord deference to
EPA’s determination.
EPA contends, in its motions-stage briefing, that the Denial Actions
were based on a determination of nationwide scope or applicability” because
it made “no unique or individualized findings as to the ability of any of the
thirty-six petitioning refineries to recover the costs of RFS compliance” and
“did not adjust its statutory interpretation and economic theory to the par-
ticulars of any specific small refinery, or the region in which a refinery oper-
ates.” We disagree. EPA’s motions-stage characterization of the Denial
Actions is flatly contradicted by the agency’s position on the merits and the
explanations it provided in the Denial Actions:
First, when asked to defend the Denial Actions on the merits, EPA
contends that it “considered each petition on the merits . . . and individual
refinery information.” That mirrors the Denial Actions that state that EPA
completed a thorough evaluation of the data and information
provided in the SRE petitions, supplemental submissions, and
comments to determine if any of the petitioners have demon-
strated that the cost of compliance with the RFS is the cause of
their alleged DEH and that such costs are not passed through
by that small refinery to the wholesale purchasers under the
RIN cost passthrough principle.20
Second, EPA admits that, even under its new approach, there is still a
_____________________
20
EPA, EPA-420-R-22-005, April 2022 Denial of Petitions for RFS Small Refinery
Exemptions (2022), at 23; EPA, EPA-420-R-22-011, June 2022 Denial of Petitions for RFS
Small Refinery Exemptions (2022), at 24.
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non-zero chance it will grant small refinery petitions. According to the
agency’s briefing, EPA will grant exemption petitions to small refineries that
provide data and evidence demonstrating that they faced disproportionate
economic hardship contrary to the facts regarding other small refineries.
EPA’s representations in the Denial Actions and its position on the
merits show that its new interpretation and RIN passthrough theory—
without more—fail to provide the agency with a sufficient basis to adjudicate
exemption petitions. When EPA says it denied petitions “based on factors
and facts common to each petition,” it also implicitly concedes that there
were no refinery-specific facts that would justify the issuance of an exemp-
tion. The agency thus had to verify that each of the petitions implicated in
the Denial Actions did not (1) present facts contrary to those of other non-
exempt small refineries and (2) demonstrate disproportionate economic
hardship consistent with the statutory criteria.21 Consequently, the Denial
Actions rely on refinery-specific determinations and are not based on a
determination of nationwide scope or effect.
Because the Denial Actions are neither nationally applicable nor based
on a determination of nationwide scope or effect, venue is proper in the Fifth
Circuit. EPA’s motion to transfer venue to the D.C. Circuit is denied. We
turn to the merits.
III.
The Administrative Procedure Act (“APA”) requires us to “set
aside” agency actions found to be “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Arbitrary-and-capricious review requires this court to scrutinize the record
to determine whether the agency has “examine[d] the relevant data and artic-
_____________________
21
See id.
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ulate[d] a satisfactory explanation for its action including a rational con-
nection between the facts found and the choice made.” Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43(1983) (cleaned up). We “may not supply a reasoned basis for the agency’s decision that the agency itself has not given.”Id.
(quoting SEC v. Chenery Corp. (Chenery II),332 U.S. 194, 196
(1947)). Instead, “we must set aside” agency action that is “premised on reasoning that that fails to account for relevant factors or evinces a clear error of judgment” as arbitrary and capricious. Univ. of Tex. M.D. Anderson Cancer Ctr. v. U.S. Dep’t of Health & Hum. Servs.,985 F.3d 472
, 475 (5th Cir. 2021) (cleaned up).
Petitioners contend the Denial Actions are defective in three ways:
First, they are impermissibly retroactive. Second, EPA’s interpretation of the
CAA is contrary to law. And third, the agency acted arbitrarily and caprici-
ously by failing to engage in reasoned decision-making.
A. Retroactivity
The 2011 DOE Study and the scoring matrix are the two factors EPA
relied on for over a decade when deciding whether to grant subparagraph (B)
exemption petitions. But starting with the April Denial, EPA threw those
factors away: Now, the 2011 DOE Study and the scoring matrix have no
bearing on the agency’s decision-making process.
Petitioners cry foul—explaining that they had relied on those two
factors when they submitted the exemption petitions implicated in the Denial
Actions. EPA says petitioners have nothing to complain about. According
to the agency, petitioners (1) have no protectable property right in subpara-
graph (B) exemptions and (2) should not have relied on the approach used in
the agency’s prior adjudications. We disagree with EPA on both points.
Petitioners have a protectable property interest because the small-
refinery exemption is “an entitlement expressly created by statute,” McDon-
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ald v. Watt, 653 F.2d 1035, 1045–46 (5th Cir. Unit A Aug. 1981), which EPA “shall” grant for any small refinery that shows “disproportionate economic hardship,”42 U.S.C. § 7545
(o)(9)(B)(ii). The CAA defines the factors EPA must consider in deciding whether to grant or deny an exemption, and, once those factors have been satisfied, the agency is legally obligated to grant such a petition. Seeid.
Because petitioners possess a protectable property interest, we must
determine whether the regulation is impermissibly retroactive. There is no
blanket prohibition against retroactive application of regulation through
adjudication.22 But that power—to regulate retroactively—is limited to cir-
cumstances in which retroactive application would not result in “injury or
prejudice.” Handley, 587 F.3d at 283 (quoting Pac. Molasses Co. v. FTC,
356 F.2d 386, 390 n.10 (5th Cir. 1966)).
Thus, we must “balance the ills of retroactivity against the disadvan-
tages of prospectivity.” Microcomputer Tech. Inst. v. Riley, 139 F.3d 1044,
1050 (5th Cir. 1998).23 And in conducting such balancing, we accord no def-
erence to the agency’s determination that its approach should be applied
retroactively, for that determination does not involve policy considerations
delegated to the agency or require any agency expertise. Id. at 1050–51. “If
that mischief [of prospectivity] is greater than the ill effect of the retroactive
_____________________
22
See Chenery II, 332 U.S. at 203–04; Macy’s, Inc. v. NLRB, 824 F.3d 557, 566–67 (5th Cir. 2016); Handley v. Chapman,587 F.3d 273, 283
(5th Cir. 2009) (Regulation is retroactive where its application “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transac- tions already completed.” (quoting Fernandez–Vargas v. Gonzales,548 U.S. 30, 37
(2006))).
23
Balancing occurs “case-by-case,” and this court has previously rejected the
multi-factor balancing tests adopted by other circuits, see id. (rejecting D.C. Circuit’s five-
factor test).
16
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c/w Nos. 22-60425, 22-60433, 22-60434
application of a new standard, it is not the type of retroactivity which is con-
demned by law.” Monteon-Camargo v. Barr, 918 F.3d 423, 430(5th Cir. 2019), as revised (Apr. 26, 2019) (quoting Chenery II,332 U.S. at 203
). Typi- cally, “the ill effect of retroactivity is the frustration of the expectations of those who have justifiably relied on a prior rule; the ill effect of prospectivity is the partial frustration of the statutory purpose which the agency has per- ceived to be advanced by the new rule.” McDonald,653 F.2d at 1044
.
We start the balancing analysis with the ills of retroactivity. Peti-
tioners justifiably relied on EPA’s past agency practice when applying for the
exemptions at issue. EPA—for over a decade—consistently used the 2011
DOE Study and scoring matrix to adjudicate small-refinery exemption peti-
tions. That is exactly the kind of “well established” agency practice that
forms the basis for justifiable reliance. Id. at 1045(citation omitted).24 EPA “cannot ‘surprise’ [petitioners] by penalizing [them] for ‘good-faith reli- ance’ on the agency’s prior positions.” R.J. Reynolds Vapor Co. v. FDA,65 F.4th 182, 189
(5th Cir. 2023) (quoting Christopher v. SmithKline Beecham Corp.,567 U.S. 142
, 156–57 (2012)).
EPA nonetheless maintains that petitioners’ reliance was unjustifiable
because they were—or should have been—aware of impending changes to
agency policy. The EPA first points to its publication requesting comment
on its proposed interpretation and theory. But that request for comment was
not published in the Federal Register until December 2021.25 The April
_____________________
24
EPA insists petitioners couldn’t have justifiably relied on its prior approach
because it wasn’t “announced in an interpretive rule” or “subjected . . . to notice and
comment.” The agency’s position is cute but wrong. Longstanding and well-established
agency practice need not be officially adopted to form the basis for reasonable reliance.
See id.
25
See 86 Fed. Reg. at 70,999–71,000.
17
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c/w Nos. 22-60425, 22-60433, 22-60434
Denial adjudicated exemption petitions submitted in 2018.26 And all of
petitioners’ exemption petitions that were adjudicated in the June Denial had
been submitted before December 2021.27 Thus, all petitioners’ exemptions
were submitted before EPA provided notice in the Federal Register that it
intended to change its adjudicative methodology. 28 EPA’s December 2021
notice and comment publication does not render petitioners’ reliance
unjustifiable.
Next, EPA asserts that petitioners’ reliance was unjustifiable by June
2021—the month litigation ended in RFA.29 We disagree with EPA’s asser-
tion that RFA provided petitioners with notice by June 2021.30
For one, EPA’s expressly states its policy is only to “provide for
exceptions to the general policy” in response to “decisions of the federal
courts that arise from challenges to ‘locally or regionally applicable’ actions
. . . .” 40 C.F.R. § 56.3(d). A Tenth Circuit decision—no matter its
holding—had no effect on petitioners’ operating outside that circuit’s boun-
daries.
Moreover, the initial Tenth Circuit panel opinion—which held that
_____________________
26
The April Denial included 2018 compliance-year petitions from Calumet,
TSAR, Ergon, Placid, and Wynnewood.
27
The June Denial included Calumet, TSAR, Ergon, Ergon-WV, and Placid’s 2019
and 2020 petitions; TSAR’s 2019, 2020, and 2021 petitions; and Wynnewood’s 2017,
2019, 2020, and 2021 petitions. TSAR’s 2021 petition was submitted on November 23,
2021, and Wynnewood’s 2021 petition was submitted on September 23, 2021.
28
Petitioners, unlike Ant-Man and the Wasp, cannot time travel. See also Rick and
Morty: The Vat of Acid Episode (Comedy Central May 17, 2020).
29
See supra note 10 and accompanying text.
30
Even if we assume arguendo that petitioners had notice by June 2021, that would
affect only TSAR’s and Wynnewood’s 2021 petitions; the other seventeen petitions in this
case were filed before June 2021.
18
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c/w Nos. 22-60425, 22-60433, 22-60434
EPA’s prior approach of finding disproportionate economic hardship
allowed the agency to act “outside the scope of [its] statutory authority”
when “[g]ranting extensions of exemptions based in part on hardships not
caused by RFS compliance”31—was vacated by a subsequent Tenth Circuit
panel.32 That, in turn, “remove[s] both the res judicata and the stare decisis
effect” from the initial RFA panel opinion. City Ctr. W., LP v. Am. Mod.
Home Ins. Co., 749 F.3d 912, 913–14 (10th Cir. 2014).
Thus, it is EPA that is being unreasonable when it blames petitioners
for disregarding a vacated holding that—per EPA’s own regulations—never
had any effect outside the Tenth Circuit. Consequently, petitioners’ contin-
ued reliance on EPA’s longstanding and well-established practice of adjudi-
cating exemption petitions based on the 2011 DOE study and scoring matrix
was justifiable till the agency first published notice of its intent to change its
adjudicative methodology in December 2021.33
_____________________
31
RFA, 948 F.3d at 1254.
32
Renewable Fuels Ass’n v. EPA, 854 F. App’x 983, 984 (10th Cir. 2021) (per cur-
iam) (“RFA II”) (“In light of the United States Supreme Court’s decision in HollyFrontier
. . . we previously recalled our mandate and vacated our judgment in this case.”).
33
In its brief, EPA asserts it “indicat[ed] that it would follow” the RFA holding on
the agency’s approach of finding disproportionate economic hardship “on remand if the
Tenth Circuit denied the motion or did not clarify otherwise.” See EPA’s Motion for Clari-
fication of the Court’s July 29, 2021 Mandate, RFA II, No. 18-9533, Doc. 010110564301,
at 6–7 (Aug. 19, 2021) (“RFA II Motion”).
For three reasons, that does not change our analysis: First, EPA’s intent, as stated
in its RFA II motion, was limited to the three exemption petitions in RFA. The only petition
in this case that overlaps with RFA is Wynnewood’s 2017 exemption petition. Second, EPA
stated in its Tenth Circuit motion that it had not decided “what, if any, impact . . . the unaf-
fected holdings . . . may have on EPA’s implementation of the RFS program.” Id. at 6; cf.
FTC v. Standard Oil Co., 449 U.S. 232, 240(1980) (agency’s “threshold determination that further inquiry is warranted . . . is not ‘definitive’” agency action). Third, it is hardly reasonable to ask regulated entities to rely on EPA’s statements of future intent made in the course of litigation. Cf. BNSF Ry. Co. v. Fed. R.R. Admin.,62 F.4th 905
, 911 & n.4 (5th
19
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c/w Nos. 22-60425, 22-60433, 22-60434
We now turn to the other side of the balancing equation and analyze
the disadvantages of prospectivity. See Microcomputer Tech. Inst., 139 F.3d
at 1050. In other words, we must determine what benefits are lost if EPA’s
new interpretation and RIN passthrough theory are applied only to newly
submitted exemption petitions.
EPA fails to identify a single benefit of retroactive application. Inter-
venors assert retroactive application is necessary because “withholding the
Denials’ effect would harm the producers of renewable fuel” and “depress
the demand for renewable fuel.” That is absurd. The exemption petitions
in this case concern compliance years 2017 to 2021. By the time EPA pub-
lished the Denial Actions, no producer could have produced RINs applicable
to these petitions, see 40 C.F.R. §§ 80.1427(a)(6), 80.1428(c), 80.1431(a), so
the Denial Actions could not have affected the amount of renewable fuel
blended in those past years.
The result of the balancing test could not be more obvious: There is
no legitimate benefit EPA can gain from retroactive application. On the other
hand, retroactive application of EPA’s new adjudicative methodology
harshly penalizes petitioners for their good-faith and justified reliance on the
agency’s prior approach.34 EPA impermissibly applied its new CAA inter-
pretation and RIN passthrough theory to petitioners’ years-old exemption
petitions.
B. Contrary to Law
Petitioners contend the Denial Actions are contrary to law for four
_____________________
Cir. 2023) (discounting post-hoc agency rationalizations).
34
See R.J. Reynolds, 65 F.4th at 189 (“Dealing with administrative agencies is all
too often a complicated and expensive game, and players . . . ‘are entitled to know the
rules.’” (citation omitted)).
20
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No. 22-60266
c/w Nos. 22-60425, 22-60433, 22-60434
reasons.
1. Disproportionate Economic Hardship
Under EPA’s new interpretation, RFS compliance costs must be the
sole cause of a small refinery’s disproportionate economic hardship. In other
words, a small refinery will receive an exemption only if it can show that it
has incurred disproportionate RFS compliance costs. Petitioners insist that
that is an unreasonable construction of the statute. We agree.
The CAA provides small refineries with the ability to submit a petition
requesting an exemption from RFS “for the reason of disproportionate econ-
omic hardship.” 42 U.S.C. § 7545(o)(9)(B)(i). An exemption petition, once
submitted, is evaluated by the Administrator “in consultation with the Sec-
retary of Energy.” § 7545(o)(9)(B)(ii). In that evaluation, “the Administra-
tor . . . shall consider the findings of the study under subparagraph (A)(ii)”—
that is, the 2011 DOE Study—“and other economic factors.” Id.
At dispute is what qualifies as “disproportionate economic hardship”
for a subparagraph (B) exemption. See id. at § 7545(o)(9)(B)(i). Subpara-
graph (A) uses that same phrase twice.35 But neither subparagraph defines it.
EPA theorizes that disproportionate economic hardship can only
mean RFS compliance costs. It bases that conclusion on its observation that
the phrase, as used in subparagraph (A), does not identify any cause of dis-
_____________________
35
First, in subparagraph (o)(9)(A)(ii)(I), the Secretary of Energy is instructed to
“determine whether compliance with [RFS] would impose a disproportionate economic
harm on small refineries,” the product of which is the 2011 DOE Study. Second, in subpara-
graph (II), which directs the Administrator to extend the initial subparagraph (A)(i)
exemption—the blanket exemption for all small refineries “until calendar year 2011”—for
any small refinery that “would be subject to a disproportionate economic hardship if
required to comply with [RFS] . . . .”
21
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c/w Nos. 22-60425, 22-60433, 22-60434
proportionate economic hardship other than RFS compliance costs.36 It thus
posits that the statute should be read to say that RFS compliance costs are
the sole cause of disproportionate economic hardship.37
Petitioners disagree: They instead contend that “disproportionate
economic hardship” should be interpreted more broadly. In their view, a
small refinery can experience disproportionate economic hardship for myriad
causes; it qualifies for the exemption if RFS compliance cost is one such
cause.
We agree with petitioners. EPA’s interpretation is foreclosed by the
statute’s text in two ways:
First, to interpret “disproportionate economic hardship” as synony-
_____________________
36
The reasoning employed here is suspect as well. EPA interprets two phrases in
subparagraph (A)—namely, “would impose” and “subject to . . . if required to comply”—
as creating an exclusive causal relationship between RFS compliance costs and dispropor-
tionate economic hardship. See § 7545(o)(9)(A)(ii). That is error because neither provision
purports to rule out other causes of disproportionate economic harm.
37
EPA asks us to defer to its interpretation under Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). EPA claims Chevron applies because
it “undertook notice and comment before taking the Denial Actions.”
Not so fast. While the agency did subject its interpretation to notice-and-comment
proceedings, it applied that interpretation in informal adjudication, not notice-and-
comment rulemaking or formal adjudication. See United States v. Mead Corp., 533 U.S. 218,
230(2001). True, EPA’s decision to engage in informal adjudication “does not automati- cally deprive that interpretation of the judicial deference otherwise its due.” Texas v. United States,809 F.3d 134
, 178 n.160 (5th Cir. 2015) (quoting Barnhart v. Walton,535 U.S. 212, 221
(2002)), aff’d by an equally divided court,579 U.S. 547
(2016). But to qualify for Chevron deference, EPA’s interpretation must satisfy the Barnhart test, which asks us to consider factors such as “the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the com- plexity of that administration, and the careful consideration the Agency has given the ques- tion over a long period of time . . . .”535 U.S. at 222
. We need not decide whether the
Barnhart test is satisfied because EPA’s interpretation fails even under Chevron. See infra
note 43.
22
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mous with “RFS compliance cost” would render part of subparagraph (B)(ii)
a nullity. That provision stipulates that the Administrator, in evaluating sub-
paragraph (B) exemption petitions, shall consider (1) the 2011 DOE study
and (2) “other economic factors.” § 7545(o)(9)(B)(ii). EPA’s interpretation
of “disproportionate economic hardship” leaves no room for “other econ-
omic factors”—it makes the first factor outcome-determinative for every
exemption petition. But those words “cannot be meaningless, else they
would not have been used.”38 Thus, subparagraph (B)(ii) contemplates
granting exemptions to small refineries that experience disproportionate
economic hardship attributable to a combination of (1) RFS compliance costs
and (2) economic factors other than RFS compliance costs.
Second, EPA’s approach to defining “disproportionate economic
hardship” is misguided. The agency relies heavily on subparagraph (A) to
define the phrase. It justifies its approach on the absence of a definition in
subparagraph (B). EPA’s justification is incorrect. Though it is true that we
presume—absent persuasive countervailing evidence—that identical words
and phrases “bear the same meaning throughout a text,”39 subparagraph (A)
does not define “disproportionate economic hardship” either. And
“[w]here Congress does not furnish a definition of its own, we generally seek
to afford a statutory term ‘its ordinary or natural meaning.’” HollyFrontier,
141 S. Ct. at 2176(quoting FDIC v. Meyer,510 U.S. 471, 476
(1994)).
“Disproportionate economic hardship,” as ordinarily understood,
includes much more than just RFS compliance cost. “Disproportionate”
modifies “economic hardship.” For economic harm to be disproportionate,
_____________________
38
Antonin Scalia & Bryan A. Garner, Reading Law: The Inter-
pretation of Legal Texts 174 (2012) (quoting United States v. Butler, 297 U.S. 1,
65 (1936)).
39
Id. at 170.
23
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it must be “inadequately or excessively proportioned.”40 The relevant com-
parator—that to which the harm is “proportioned”—could be the amount
other small refineries pay to comply with RFS. But it could also be factors
unrelated to RFS, such as local economic conditions or refinery-specific cir-
cumstances. For example, “small refineries might apply for exemptions . . .
in light of market fluctuations and changing hardship conditions.” Holly-
Frontier, 141 S. Ct. at 2178. Congress could have—but did not—enumerate
the particular ways in which economic harm might be “disproportionate.”41
We therefore accord the phrase disproportionate economic harm its “full and
fair scope,” for “the presumed point of using general words is to produce
general coverage.”42
EPA’s interpretation 42 U.S.C. § 7545(o)(9)(B) is unreasonable.43
The statute’s text cannot plausibly be read to say that RFS compliance costs
must be the sole cause of disproportionate economic hardship.
_____________________
40
Disproportionate, Oxford English Dictionary, tinyurl.com/32spx2ve.
41
See, e.g., 26 U.S.C. § 302(b)(2)(C) (delineating in detail when a “distribution is
substantially disproportionate”).
42
Scalia & Garner, supra note 38, at 101.
43
Chevron deference applies “only if ‘the agency’s [interpretation] is based on a
permissible construction of the statute.’” Huntington Ingalls, Inc. v. Dir., Off. Of Workers’
Comp. Programs, U.S. Dep’t of Lab., 70 F.4th 245, 252 (5th Cir. 2023) (quoting Mexican Gulf Fishing Co. v. U.S. Dep’t of Commerce,60 F.4th 956
, 963 (5th Cir. 2023)). EPA’s interpretation falls outside “the range of meanings that could be plausibly attributed to the relevant statutory language.” Sw. Elec. Power Co. v. EPA,920 F.3d 999, 1024
(5th Cir.
2019) (citation omitted). Consequently, EPA’s interpretation is not entitled to Chevron
deference.
Furthermore, EPA is not entitled to deference under Skidmore v. Swift & Co.,
323 U.S. 134(1994), because an unreasonable interpretation of a statute’s text cannot be persuasive. See Texas,809 F.3d at 178
n.160 (citing Gonzales v. Oregon,546 U.S. 243, 256
(2006)).
24
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2. Petitioners’ other reasons that the Denial Actions are contrary to law.
Petitioners urge that the Denial Actions are contrary to law for three
other reasons. On those claims, we agree with EPA.
First, petitioners assert the EPA’s interpretation is unlawful because
it was adopted on the agency’s mistaken belief that it was bound by the alter-
nate holdings in RFA—a now-vacated Tenth Circuit case interpreting the
relevant statutory provisions. See RFA II, 854 F. App’x at 984. But the
agency record shows that the EPA adopted RFA’s reasoning because it
“determined that the RFA decision provides the best reading of the statutory
provisions of CAA section 211(o)(9).” That is an independent basis for
EPA’s interpretation, i.e., the agency did not base its interpretation on the
idea it was bound by RFA’s alternate holdings. Thus, EPA’s interpretation
did not violate the Chenery mistake-of-law doctrine. Cf. Teva Pharm. U.S.A.
Inc. v. FDA, 441 F.3d 1, 5 (D.C. Cir. 2006).
Second, petitioners allege EPA impermissibly construed the statute’s
requirement that it consult with DOE in deciding an exemption petition. In
their view, EPA’s consultation with DOE had to be “meaningful,” which
requires EPA and DOE to—at a minimum—consult on “whether EPA’s
new RIN pass-through theory was actually correct and applicable to each
small refinery.” Petitioners claim EPA fell short of that standard with the
Denial Actions because EPA merely asked DOE to “assume the RIN pass-
through theory was correct and an appropriate basis for denying the hardship
petitions.” EPA counters by claiming that it, along with DOE, has “discre-
tion to determine the shape of the procedural consultation requirement.”
We agree with EPA. Congress did not define the term “consultation”
as used in the relevant statutory provision. See 42 U.S.C. § 7545(o)(9)(B)(ii).
It only stipulates the subjects the agencies must cover. We decline to graft
extra-textual procedural requirements onto that consultation requirement.
25
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No. 22-60266
c/w Nos. 22-60425, 22-60433, 22-60434
See Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S.
519, 525 (1978).
Third, petitioners attest the Denial Actions are contrary to law be-
cause EPA evaluated multiple petitions simultaneously. Pointing to
§ 7545(o)(9)(B)’s use of the terms “a small refinery” and “a petition,” peti-
tioners claim that the petitions must be examined one at a time. True, using
“a”—an indefinite article immediately followed with a singular noun— can
refer to “one” of something. But it can also indicate “that there may be two
or more substantial parts.” Comm’r v. Kelley, 293 F.2d 904, 912 (5th Cir.
1961). Without more, petitioners fail to show that the relevant statutory pro-
visions require EPA to consider exemption petitions individually. We are
textualists, not literalists.
We conclude the Denial Actions are contrary to law only because
EPA’s interpretation of the CAA subparagraph (B) exemption provision is
unreasonable. Petitioners’ other claims fail.
C. Arbitrary and Capricious
Petitioners contend the Denial Actions are arbitrary and capricious
because they rely on the RIN-passthrough theory, which ran counter to the
evidence before the EPA.
The APA requires us to “set aside agency action if the agency . . .
‘offered an explanation for its decision that runs counter to the evidence
before the agency or is so implausible that it could not be ascribed to a dif-
ference in view or the product of agency expertise.’” Sw. Elec. Power Co.,
920 F.3d at 1013(quoting State Farm,463 U.S. at 43
) (cleaned up). That
includes agency action that is “premised on reasoning that fails to account
for relevant factors or evinces a clear error of judgment.” Univ. of Tex. M.D.
Anderson Cancer Ctr., 985 F.3d at 475 (internal quotation marks and citation
omitted).
26
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Petitioners take issue with EPA’s RIN-passthrough economic
theory—that is, the agency’s conclusion that the “market-based design of
the RFS program and the RIN-based compliance system have equalized the
cost of compliance among all market participants.” EPA made two findings
to support its RIN-passthrough theory: The first is that the price per RIN at
any given point in time is identical for all refineries nationwide. The second is
that market prices for fuel and RIN costs correspond, which means all
refineries could offset 100% of their RIN costs by raising the price of their fuel
products, thereby passing RIN costs along to their customers. Petitioners
claim those two findings are contrary to the evidence before EPA.
We agree that EPA’s RIN-passthrough theory is contrary to the evi-
dence. EPA’s second finding—that all refineries can completely pass on
their RIN costs—is so implausible as applied to petitioners that it cannot be
ascribed to a difference in view or agency expertise. See Sw. Elec. Power Co.,
920 F.3d at 1013(quoting State Farm,463 U.S. at 43
).
Petitioners have demonstrated that the local markets in which they
operate are inefficient. Calumet’s exemption petition, for example, included
market price data from the local “micro-market” it operated in as compared
to Pasadena, Texas. Pasadena is an example of an economically efficient
market—that is, a market in which EPA’s general conclusion about RIN
passthrough holds true—so the price premium for fuel there matches the
market price of RINs. Not so with Calumet’s micro-market: Prices there are
lower than in Pasadena, which means that fuel is discounted by more than the
corresponding RIN market price.
EPA does not seriously engage with petitioners’ refinery-specific
market data. The agency’s two responses are insufficient:
First, EPA’s conclusions about fuel market efficiency in general do not
disprove petitioners’ local market data. The agency arrived at that conclu-
27
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No. 22-60266
c/w Nos. 22-60425, 22-60433, 22-60434
sion by “examin[ing] available market data, as well as studies by outside par-
ties and numerous public comments.”44 That allowed the agency to con-
clude that “the RIN costs and RIN discount were fully passed through to
wholesale purchasers and reflected in the market prices of petroleum fuel and
blended fuel . . . .”45 But EPA’s macro-level analysis about fuel markets only
supports a conclusion that passthrough can occur in fuel markets generally—
it does not rule out the existence of inefficient fuel markets. And those are
the markets in which petitioners operate.
Second, EPA glosses over petitioners’ refinery-specific data proving
they operate in inefficient local markets that do not allow for RIN cost pass-
through. In response to Calumet’s data, for example, all EPA said was that
the Pasadena market demonstrated “the RIN price is fully passed through.”
_____________________
44
EPA, EPA-420-R-22-011, June 2022 Denial of Petitions for RFS Small Refinery
Exemptions (2022), at 32. Petitioners’ attempts to challenge EPA’s conclusions about
these studies are not meritorious. EPA concluded that these studies “on balance . . . pro-
vide more evidence in support of the conclusion that RIN costs are passed through than
evidence to suggest they do not.” Petitioners interpret those studies differently from how
EPA does. But that’s not enough for us to conclude that EPA’s conclusion is counter to
the evidence. EPA provided a reasonable explanation as to why it questioned the studies
petitioners identified when the agency pointed to potential methodological infirmities in
each. Petitioners’ reply briefing does not explain why EPA’s critiques are irrelevant or
incorrect. It cannot be said that petitioners’ studies made it unreasonable for EPA to reach
a conclusion opposite to that held by petitioners.
Additionally, petitioners cite a GAO report that is not in the administrative record,
U.S. Gov’t Accountability Off., GAO-23-104273, Renewable Fuel Standard: Actions
Needed to Improve Decision-Making in the Small Refinery Exemption Program (2022).
Generally, we do not review information that was outside the record when the agency made
its decision. See Luminant Generation Co. v. EPA, 675 F.3d 917, 925 (5th Cir. 2012). Even
though the GAO report is based on evidence available at the time the agency made its deci-
sion, petitioners cannot—and do not—contend that its conclusions and findings are based
solely on data in the record. We therefore exclude the GAO report from our analysis.
45
EPA, EPA-420-R-22-011, June 2022 Denial of Petitions for RFS Small Refinery
Exemptions (2022), at 32.
28
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That’s not responsive—both petitioners and EPA agree Pasadena is efficient.
The problem is that Calumet does not operate in Pasadena. EPA leaves
unrebutted petitioners’ actual contention—that lower sale prices in the
micro-market relative to the efficient Pasadena market prove that Calumet,
like other petitioners, cannot pass through the costs of the RINs it purchases.
EPA’s second finding is also contrary to the evidence because peti-
tioners are unable to purchase RINs ratably. Ratable purchasing is an under-
lying premise of EPA’s second finding—a refinery must be able to purchase
RINs at the same time they sell fuel in order for the market price to corres-
pond with the price of RINs. That’s not an option available to petitioners.
Take TSAR for example: Given the amount of fuel it produces, it would need
to buy 75,000 RINs per day. But a trade size of 75,000 RINs is “essentially
unheard of” in the RIN market—most RINs are sold in “a clip of ‘1 million’
at a time.” Indeed, as TSAR explained to the EPA, it can’t even find a RIN
broker willing to transact at such low RIN quantities.
EPA brushes that evidence aside. In response to TSAR, the agency
merely restates its prior assertion that “small refineries can enter into con-
tracts with various RIN brokers to purchase RINs on a ratable basis.” The
agency supports its assertion by dreaming up a hypothetical contract—filled
with unsubstantiated speculation about terms such RIN clip sale prices and
broker service fees—that TSAR might be able to negotiate. But EPA never
explains why it believes small refineries can get contract terms like those.
Unsubstantiated agency speculation does not overcome petitioners’ proven
inability to purchase market-rate RINs ratably.
IV.
Petitioners complain that EPA acted arbitrarily and capriciously by
failing to provide sufficient guidance as to the information small refineries
should submit as part of their exemption petitions under the agency’s new
29
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No. 22-60266
c/w Nos. 22-60425, 22-60433, 22-60434
interpretation and RIN passthrough theory.
We disagree with petitioners. As a general matter, courts cannot com-
pel agencies to act.46 Petitioners do not allege that the CAA expressly
requires EPA to issue such guidance. An agency’s control over its timetables
is entitled to considerable deference.47 That EPA has yet to make good on its
promise to provide further guidance does not render the agency’s current
(lack of) guidance arbitrary and capricious.
* * * * *
In summary: The challenged Denial Actions are locally or regionally
applicable. EPA’s motion to transfer venue to the District of Columbia
Circuit is DENIED.
The EPA’s denials of petitioners’ small refinery exemption petitions
are impermissibly retroactive. Furthermore, the agency’s interpretation of
the small refinery exemption petition provisions of the CAA is contrary to
law and arbitrary and capricious as applied to petitioners’ exemptions. The
petitions for review are GRANTED. The challenged adjudications are
VACATED and REMANDED for further consideration.
_____________________
46
See Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (“[A] claim under
§ 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete
agency action that it is required to take.” (emphases omitted)).
47
See Charles H. Koch, Jr. & Richard Murphy, 4 Admin. L. &
Prac. § 11:50 (Westlaw).
30
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No. 22-60266
c/w Nos. 22-60425, 22-60433, 22-60434
Patrick E. Higginbotham, Circuit Judge, dissenting:
Congress carefully crafted the Renewable Fuel Standard (“RFS”)
program of the Clean Air Act to nudge the nation toward clean renewable
fuel sources1 and Congress, in light of “the advantages of expeditious and
authoritative review of all national standards in the D.C. Circuit,” also
implemented a judicial review venue provision that “priorities efficiency” in
the form of 42 U.S.C. § 7607(b)(1).2 Today we impermissibly interfere with
these Congressional mandates by finding that venue is proper in this Circuit,
contrary to the text, structure, and purpose of § 7607(b)(1). I would find that
venue is only proper in the D.C. Circuit, consistent with the actions of the
four other circuit courts that have addressed this very case, and dissent.
I.
The majority correctly describes the overall mechanics of the CAA’s
venue provision.3 At step one, we determine whether a final agency action is
“nationally applicable,” as distinguished from a “locally or regionally
applicable” action. If “nationally applicable,” venue is only proper in the
D.C. Circuit.4 If we find that the challenged action is “locally or regionally”
applicable, we proceed to step two. At this second step, a “locally or
regionally applicable” action must be reviewed in the D.C. Circuit if (1) it is
“based on a determination of nationwide scope or effect” and (2) the
Administrator “finds and publishes that such action is based on such a
_____________________
1
Pub. L. No. 110-140, 121 Stat. 1492.
2
41 Fed. Reg. 56767 (Dec. 30, 1976) (Comments of G. William Frick).
3
See generally 42 U.S.C. § 7607(b)(1). “Had Congress wanted to prioritize efficiency, it could have authorized direct circuit-court review of all nationally applicable regulations, as it did under the Clean Air Act.” Nat’l Ass’n of Mfrs. v. Dep’t of Def.,583 U.S. 109, 130
(2018).
4
42 U.S.C. § 7607(b)(1).
31
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No. 22-60266
c/w Nos. 22-60425, 22-60433, 22-60434
determination”5 The majority opinion errs at both steps of the venue
analysis, inappropriately finding that venue is proper in this Circuit.
A.
According to the majority, “[i]n-circuit precedent” controls the
outcome of the venue analysis at step one. As we are supposedly obliged to
look to the “legal effect—and not the practical effect—of an agency action”
to determine whether the action is “nationally applicable,” the Denial
Actions must be “locally or regionally applicable” because they do not
“change regulated entities’ legal obligations” for “all states.” With due
respect, this “legal effect” rule runs counter to the text, structure, and
purpose of the CAA’s venue provision.
As a starting matter, the majority’s description of the “legal effect”
rule as in-circuit precedent relies on Texas 2016 to support its assertion. In
Texas 2016, both “parties agree[d] that the [agency action] under review
[was] a locally or regionally applicable action.”6 Whether the “legal” or
“practical” effect of an agency action determines its scope was not before the
Court.7 As a result, the panel’s statement in Texas 2016 that “[t]he question
of applicability turns on the legal impact as a whole” is dicta.
Issues with “precedent” aside, this quest reads words into the statute
that are not there. Section 7607(b)(1) refers only to agency actions that are
“nationally applicable.” Nowhere does the text of the statute reference or
suggest that Congress intended to distinguish between “legal” and
_____________________
5
Id.
6
Texas v. EPA, 829 F.3d 405, 419 (5th Cir. 2016) (“Texas 2016”).
7
Id.
32
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c/w Nos. 22-60425, 22-60433, 22-60434
“practical” effects. Indeed, this part of the statute does not refer to “effects”
at all. The question is one of “national applicability.”
Not only does the majority read new words into the statute, but in
fashioning its new “legal effect” theory, they elide Texas 2016’s reference to
the plain meaning of the term “nationwide” and ignore Texas 2011, which
also defines the key terms of the statute by reference to the words’ plain
meaning.8 Instead, we should look to the plain meaning of “nationally” to
understand what Congress set out to achieve with § 7607(b)(1).
“Nationally” generally means “throughout the whole nation.”9 As
commonly understood, a reasonable person would measure “nationally
applicable” by looking to “the location of the persons or enterprises that the
action regulates.”10 Applying this definition, the Denial Actions are here
inescapably nationally applicable: they apply one consistent statutory
interpretation and economic analysis to thirty-six small refineries, located in
eighteen different states, in the geographical boundaries of eight different
circuit courts. Without the siren song of the war against the administrative
state, they are, for all intents and purposes, “applicable” across the
“nation.”
_____________________
8
See Texas v. EPA., No. 10-60961, 2011 WL 710598, at *4 n.4 (5th Cir. Feb. 24,
2011) (“Texas 2011”).
9
See Texas 2016, 829 F.3d at 420 n. 22, defining “nationwide” as “throughout the
whole nation.” “National” means “of or relating to a nation.” Nation, Merriam Webster
Dictionary, https://www.merriam-webster.com/dictionary/national (last visited Nov. 19,
2023); “Nationally” means “in a national manner; as a nation; with regard to the nation as
a whole.” Nationally, Oxford English Dictionary,
https://www.oed.com/dictionary/nationally_adv?tab=meaning_and_use#35387357 (last
visited Nov. 19, 2023).
10
Texas 2011,2011 WL 710598
, at *3 (citing New York v. EPA,133 F.3d 987
, 990
(7th Cir. 1998)). See also JOHN F. MANNING, WHAT DIVIDES TEXTUALISTS FROM
PURPOSIVISTS?, 106 COLUM. L. REV. 70, 76 (2006).
33
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No. 22-60266
c/w Nos. 22-60425, 22-60433, 22-60434
By applying the plain meaning of “nationally” along with this Court’s
precedents, venue is proper only in the D.C. Circuit. In Texas 2011, we found
an agency action to be nationally applicable when it applied to only thirteen
states and seven different circuit courts.11 Here, we have eighteen states
within eight different circuits, all facing the same new statutory
interpretation and economic analysis. In Texas 2020, this Court found that
the agency action in question was “locally or regionally” applicable because
it only applied to four counties within the State of Texas,12 and to Sierra Club
v. EPA, in which we similarly found that the agency action was not
“nationally applicable” because it dealt exclusively with a State
Implementation Plan (“SIP”) for the State of Louisiana.13 Even American
Road &Transportation Builders Association v. EPA, which Texas 2016 cites
favorably to fashion its “legal effects” pronouncement, dealt with the denial
of a SIP exclusively applicable to the State of California.14 Texas 2020, Sierra
Club, and American Road, when compared to the facts of this case and when
the term “nationally applicable” is given its common sense reading, require
transfer of this case to its proper venue in the D.C. Circuit.
By the majority’s reading of § 7607(b)(1), if the EPA denied the
petitions of small refineries located in every single U.S. state and territory in
one single agency action, this denial action would still not be “nationally
applicable” because it does not have any binding “legal effect” on future
hardship petitions. That result simply defies common sense.
_____________________
11
Texas 2011,2011 WL 710598
, at *3.
12
Texas v. EPA, 983 F.3d 826, 833 (5th Cir. 2020) (“Texas 2020”).
13
Sierra Club v. EPA, 939 F.3d 649 (5th Cir. 2019).
14
Am. Road & Transp. Builders Ass'n v. EPA, 705 F.3d 453, 455–56 (D.C. Cir. 2013).
34
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No. 22-60266
c/w Nos. 22-60425, 22-60433, 22-60434
The proffered new rule also “does violence . . . to the structure and
language of the statute.”15 Section 7607(b)(1) refers to “final agency action,”
and the Administrative Procedure Act defines “agency action” to include
both rulemakings and adjudications.16 Section 7607(b)(1) then contemplates
scenarios, such as this one, in which an agency may proceed through an
“action,” such as an adjudication, that is of “national applicability.” But as
adjudications lack “legal effect” beyond the parties involved, they could
never be “nationally applicable” as defined by the majority. Thus, the
majority’s “legal effects” reading of the statute effectively removes all
“adjudications” from the ambit of § 7607(b)(1), contrary to the plain text of
the statute.
Additionally, this “legal effects” rule offers no meaningful guidance
to litigants, particularly problematic when considering that venue provisions
should “draw bright lines to minimize waste and expense of litigation over
whether a case has been brought in the right court.” 17 Its new rule begs the
question: even if we were to require “legal effects,” why do those effects
have to be “future” legal effects? And why are “present” legal effects, which
in this case, are felt over a large swath of the country, insufficient? The
majority’s now re-written § 7607(b)(1) then reads:
[a] petition for review of . . . any . . . nationally applicable
regulations [with future legal effects] promulgated, or final action
taken [minus adjudications], by the Administrator under this
chapter may be filed only in the United States Court of Appeals
for the District of Columbia.
_____________________
15
Smith v. United States, 508 U.S. 223, 240 (1993).
16
See 5 U.S.C. 551(13).
17
41 Fed. Reg. 56767 (Dec. 30, 1976) (Comments of G. William Frick).
35
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No. 22-60266
c/w Nos. 22-60425, 22-60433, 22-60434
Contrary to the majority’s re-working of the statute, I would simply
conduct the venue analysis by applying the plain meaning of § 7607(b)(1).
The EPA’s Denial Actions, affecting eighteen states within the geographical
boundaries of eight different circuit courts, are nationally applicable, as they
apply one consistent statutory interpretation and economic analysis to small
refineries nationwide. This should have been the end of the Court’s venue
analysis, and venue is only proper in the D.C. Circuit.
B.
Alternatively, I would find that the Denial Actions should be trans-
ferred to the D.C. Circuit at step two of the venue analysis. They were “based
on a determination of nationwide scope or effect” and the Administrator
made and published the required determination. The plain meaning of the
statute’s key terms and this Circuit’s precedents command this result.
“Determinations” are “the justifications the agency gives for the ac-
tion and they can be found in the agency’s explanation of its action. They are
the reason the agency takes the action that it does.” 18 “[T]he agency should
identify the core determinations in the action.” 19 Here, “[b]ecause the stat-
ute speaks of the determinations the action ‘is based on,’ the relevant deter-
minations are those that lie at the core of the agency action.”20 Section
7607(b)(1), moreover, requires this Court look to the “scope” or “effect” of
the relevant determination and determine whether it was “nationwide.” In
this context, “[s]cope” means “[t]he area covered by a given activity or sub-
ject,” and “effect” means “[s]omething brought about by a cause or agent;
_____________________
18
See Texas 2016, 829 F.3d at 419.
19
Id.
20
Id.
36
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c/w Nos. 22-60425, 22-60433, 22-60434
result.”21 Altogether, this Court must then look to the core determinations
that the EPA has identified as the justifications for the Denial Actions, and it
must independently determine if they have nationwide scope or effect.
The EPA identified the two determinations at the core of the Denial
Actions: (1) its new interpretation of the CAA’s disproportionate hardship
provision; and (2) its economic analysis of the nationwide market for RINs.
The scope and effect of these core determinations are nationwide, as they are
applicable to all small refineries no matter the location or market in which
they operate.
The majority, however, takes issue with the EPA’s identification of its
core determinations. In their view, the EPA’s core determinations for the
Denial Actions are “flatly contradicted” by the agency’s position on the mer-
its. The majority faults the EPA for “consider[ing] each petition on the mer-
its . . . and individual refinery information.” But there is no contradiction in
the EPA ensuring that its core determinations hold up when presented with
potentially differing data in the individual petitions. While of course the
agency considered and responded to the small refineries’ comments (else,
the action would have surely been arbitrary and capricious), there can be mul-
tiple determinations that influence an agency’s actions. What the majority
ignores is that for venue purposes, what matters are the EPA’s core determi-
nations. In the case of the Denial Actions, these determinations were of na-
tionwide scope and effect. And because the Administrator made and pub-
lished the required determination, venue is only proper in the D.C. Circuit.
II.
_____________________
21
Id. at 421 n. 20 & 21.
37
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c/w Nos. 22-60425, 22-60433, 22-60434
There remains the matter of what our sister circuits have already done
with this exact same case. The Third, Seventh, and Tenth Circuits
transferred the relevant petitions to the D.C. Circuit, and the Ninth Circuit
dismissed the petitions. No Circuit has kept the case for itself—until today.
Congress designed § 7607(b)(1) to “prioritize efficiency,”22 and with
the majority’s decision today, this Court has impermissibly interfered with
Congress’s stated preference for “centralized review of national issues” over
“piecemeal review . . . in the regional circuits.” 23 To these eyes, its decision
looks away from “general congressional direction in an attempt to do
justice,” an unfortunate overreach this day by my colleagues.24 I must
respectfully dissent.
_____________________
22
Nat’l Ass’n of Mfrs., 583 U.S. at 130.
23
Texas 2011,2011 WL 710598
, at *4.
24
41 Fed. Reg. 56767 (Dec. 30, 1976) (Comments of G. William Frick).
38
Reference
- Status
- Published