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RFA: EPA Stall Tactic on Tenth Circuit Decision Just Delays the Inevitable

March 27, 2020

Coronavirus, EPA, Regulatory, SRE


As part of a package intended to “protect the nation’s gasoline supply in response to the COVID-19 pandemic,” the U.S. Environmental Protection Agency today announced it intends to wait until “appeals have been resolved and the court’s mandate has been issued” before developing “an appropriate implementation and enforcement response to the Tenth Circuit’s decision in RFA v. EPA.” On Tuesday, two refiners asked the Tenth Circuit for a rehearing en banc of the RFA v. EPA decision, in which the court struck down three small refinery exemptions and determined EPA had vastly exceeded its statutory authority. Notably, EPA did not ask the court to rehear the case. In response to today’s announcement, Renewable Fuels Association President and CEO Geoff Cooper released the following statement:

“EPA’s attempt to kick the can on nationwide application of the Tenth Circuit Court decision has nothing to do with COVID-19 and everything to do with politics. There is absolutely no reasonable justification for delaying implementation of the court’s decision. The court has already ‘issued a mandate’ and remanded three improperly granted exemptions back to the agency to resolve. EPA correctly chose not to seek a rehearing of the Tenth Circuit decision this week, signaling that it will abide by the decision and move swiftly to implement it. What are they waiting for? There is no rationale for EPA to wait for the courts to respond to the refiners’ hollow request for a rehearing before moving forward with adoption of the decision. In any event, given the unanimous and thoughtful decision by the Tenth Circuit panel that heard the case, we are confident that the ruling is going to be upheld. As ethanol plants are shutting down across the country and farmers are experiencing substantial demand losses, now is not the time for EPA to slow-walk implementation of a court order that would begin to restore integrity to the RFS program.”