Monroe Energy, LLC v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 7, 2014 Decided May 6, 2014
No. 13-1265
MONROE ENERGY, LLC,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
PBF HOLDING COMPANY LLC, ET AL.,
INTERVENORS
Consolidated with 13-1267, 13-1268
On Petitions for Review of Final Agency Action of
the United States Environmental Protection Agency
David W. DeBruin argued the cause for petitioner Monroe
Energy, LLC. With him on the briefs were Marc A. Goldman and
Matthew E. Price.
Robert A. Long Jr. argued the cause for petitioners American
Petroleum Institute and American Fuel & Petrochemical
Manufacturers. With him on the briefs were Kristen E.
Eichensehr, Harry M. Ng, Chet M. Thompson, Robert Meyers,
2
David Y. Chung, and Richard Moskowitz.
Bart E. Cassidy, Katherine L. Vaccaro, and Bryan P. Franny
were on the brief for petitioner-intervenor PBF Holding Company
LLC in support of petitioner.
Lisa M. Bell and Brian H. Lynk, Attorneys, U.S. Department
of Justice, argued the causes for respondent. With them on the
brief was Robert G. Dreher, Acting Assistant Attorney General.
Jessica O'Donnell, Attorney, entered an appearance.
David B. Salmons argued the cause for respondent-
intervenors. With him on the brief were John C. O'Quinn,
William H. Burgess, Sandra P. Franco, and Bryan M. Killian.
Before: ROGERS, GRIFFITH and PILLARD, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The petition for review challenges
the 2013 Renewable Fuel Standards issued pursuant to section
211(o) of the Clean Air Act, 42 U.S.C. § 7545(o). See
Regulation of Fuels and Fuel Additives: 2013 Renewable Fuel
Standards, 78 Fed. Reg. 49,794 (Aug. 15, 2013) (“Final Rule”).
These standards are part of Congress’ effort “[t]o move the
United States toward greater energy independence and security,
to increase the production of clean renewable fuels, to protect
consumers, to increase the efficiency of products, buildings, and
vehicles, to promote research on and deploy greenhouse gas
capture and storage options, and to improve the energy
performance of the Federal Government.” Energy Independence
and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 1492
(2007); see also Am. Petroleum Inst. v. EPA, 706 F.3d 474, 479
(D.C. Cir. 2013). Monroe Energy LLC, joined by intervenor
PBF Holding Company LLC, another independent petroleum
refiner, contends that the rule must be vacated because EPA
3
declined to reduce the total renewable fuel volume, failed to
address a malfunction of the credit system, and failed to
promulgate the standards until more than eight months after the
statutory deadline had passed. For the following reasons, we
deny the petition for review.1
I.
The Renewable Fuel Standards (“RFS”) program was
established by Congress in the Energy Policy Act of 2005, Pub.
L. No. 109-58, 119 Stat. 594 (2005). It mandates the gradual
introduction of renewable fuels into the U.S. supply of gasoline,
diesel, and other transportation fuels. As amended in the Energy
Independence and Security Act of 2007, Pub. L. No. 110-140,
121 Stat. 1492 (2007), the program requires an “applicable
volume” of total renewable fuel to be sold or introduced into
U.S. commerce each year. See 42 U.S.C. § 7545(o)(2)(B)(i).
The volumes increase progressively through 2022; thereafter,
EPA, rather than Congress, will set the applicable volumes. See
id. § 7545(o)(2)(A)(i), 7545(o)(2)(B)(i). From each year’s
applicable volume of total renewable fuel, a certain volume must
consist of “advanced biofuel,” see id. § 7545(o)(1)(B),
7545(o)(2)(B)(i)(II), and this advanced biofuel quota must be
met using specified minimum volumes of “cellulosic biofuel”
and “biomass-based diesel” from among the various types of
advanced biofuels, see id. § 7545(o)(1)(D)–(E),
1
By post-argument motion of April 11, 2014, petitioners
American Petroleum Institute and American Fuel & Petrochemical
Manufacturers moved to sever their remaining challenges to the Final
Rule, for lack of notice of EPA’s use of updated EIA information and
approval of a small refinery exemption. EPA joined the motion. The
court deconsolidates case Nos. 13-1267& 13-1268, and holds them in
abeyance; this panel will retain these consolidated petitions for any
further proceedings.
4
7545(o)(2)(B)(i)(III)–(IV). Annual “applicable volumes” are
prescribed for four categories of fuel: total renewable fuel,
advanced biofuel, biomass-based diesel, and cellulosic biofuel.
See id. § 7545(o)(2)(A)(i). These categories are “nested”:
biomass-based diesel and cellulosic biofuel count toward the
applicable volume for advanced biofuel, and advanced biofuel
counts toward the applicable volume for total renewable fuel.
The obligation to meet the applicable volumes falls
collectively to “refineries, blenders, and importers, as
appropriate.” 42 U.S.C. § 7545(o)(3)(B)(ii)(I). EPA determined
in 2007, and reaffirmed in 2010, that blenders “who only blend[]
renewable fuels downstream from the refinery or importer” are
exempt from the requirements, leaving refiners and importers as
the primary obligated parties under the RFS program. See
Regulation of Fuels and Fuel Additives: Renewable Fuel
Standard Program, 72 Fed. Reg. 23,900, 23,924 (May 1, 2007)
(“2007 RFS”); Regulation of Fuels and Fuel Additives:
Changes to Renewable Fuel Standard Program, 75 Fed. Reg.
14,670, 14,722 (Mar. 26, 2010) (“2010 RFS”). Pursuant to EPA
regulations, refiners and importers must demonstrate that they
have introduced into U.S. commerce an amount of renewable
fuel that is proportional to their import or production of
conventional fuel. See 40 C.F.R. § 80.1405(c). EPA determines
the required proportion on an annual basis by dividing the
statutory applicable volumes by the country’s projected non-
renewable gasoline and diesel use in the compliance year. See
id. The result is a percentage standard informing each obligated
party how much of its fuel production must consist of renewable
fuels. For example, if the projected non-renewable gasoline and
diesel use for a given year is 100 billion gallons and the
applicable volume of renewable fuel is 15 billion gallons, the
percentage standard will be 15 percent; a refiner that will
produce 20 billion gallons of non-renewable fuel must ensure it
also introduces an additional 15 percent of that amount (3 billion
5
gallons) of renewable fuel into U.S. commerce.
To afford obligated parties a degree of compliance
flexibility, Congress also required a credit trading program be
established whereby a party that produces more than the
required quantity of renewable fuels can generate credits for the
excess and use them, or transfer all or a part to another person,
for purposes of compliance. See 42 U.S.C. § 7545(o)(5). The
credits are valid to show compliance for “the 12 months as of
the date of generation.” Id. § 7545(o)(5)(C). Under the
regulations, see 40 C.F.R. § 80.1415, 80.1426(e), each batch of
renewable fuel that is produced or imported for use in the U.S.
is assigned a set of “Renewable Identification Numbers”
(“RINs”) that correspond to the volume of ethanol-equivalent
fuel gallons in that batch. (The per-gallon energy content varies
among different types of fuels; all fuel volumes in this opinion
are denoted in ethanol-equivalent gallons.) When a blender or
obligated party blends renewable fuel into conventional fuel, the
RINs from the blended renewable batch are deemed “separated”
and may be traded in the market. See id. § 80.1426(e),
80.1429(b). Obligated parties must demonstrate their
compliance with the renewable fuel standards by “retiring” RINs
in an annual compliance demonstration. See id. § 80.1427(a).
Prior to this demonstration, parties that have accumulated excess
RINs may sell theirs to other parties, while obligated parties that
have not generated sufficient RINs through their own activities
may seek to purchase them. See id. § 80.1425–29. A party may
also “bank” some of its RINs for use in the subsequent
compliance year; up to 20 percent of a party’s annual
compliance obligation may be satisfied using such “carryover”
RINs. See id. § 80.1427(a)(1), 80.1427(a)(5). Carryover RINs
that are not so used will expire and become useless. See id.
§ 80.1427(a)(6).
 6
In addition to allowing a deficit to be carried forward for
one year under certain circumstances, see 42 U.S.C.
§ 7545(o)(5)(D), and addressing effects of seasonal variation,
see id. § 7545(o)(6), Congress authorized EPA to waive the
applicable volumes, in consultation with the Secretaries of
Agriculture and Energy, after notice and comment, when
“implementation of the requirement would severely harm the
economy or environment,” id. § 7545(o)(7)(A)(i), or “there is an
inadequate domestic supply,” id. § 7545(o)(7)(A)(ii). Of
particular relevance here, when the actual production of
cellulosic biofuel will fall short of the statutory quota, EPA is
required to adjust the applicable volume of cellulosic biofuel to
the “projected volume available during that calendar year.” Id.
§ 7545(o)(7)(D)(i). If EPA reduces the applicable volume of
cellulosic biofuel, then it “may also reduce” the required
amounts of advanced biofuel and total renewable fuel “by the
same or a lesser volume,” but is not required to do so. Id.
(emphasis added). Because the cellulosic biofuel industry has
not developed as rapidly as Congress expected, EPA had to
reduce the cellulosic biofuel quota in 2010, 2011, and 2012;
EPA did not, however, exercise its discretion to reduce the
advanced biofuel and total renewable fuel quotas in those years.
See generally 2010 RFS, 75 Fed. Reg. 14,670; Regulation of
Fuels and Fuel Additives: 2011 Renewable Fuel Standards, 75
Fed. Reg. 76,790 (Dec. 9, 2010) (“2011 RFS”); Regulation of
Fuels and Fuel Additives: 2012 Renewable Fuel Standards, 77
Fed. Reg. 1320 (Jan. 9, 2012) (“2012 RFS”).
In the proposed rule for 2013, EPA stated its intent to
reduce the applicable volume of cellulosic biofuel from 1 billion
gallons to 14 million gallons due to low anticipated production,
but not to reduce the advanced biofuel and total renewable fuel
quotas. See Regulation of Fuels and Fuel Additives: 2013
Renewable Fuel Standards, 78 Fed. Reg. 9282, 9285, 9295,
9301 (Feb. 7, 2013) (“NPRM”). Recognizing, however, that
7
there were “various uncertainties” in its projections and
estimations, EPA requested comment on “whether and to what
extent a reduction is warranted” and “whether the blendwall
presents any difficulty in terms of compliance with the RFS
volume requirements in 2013.” Id. at 9286, 9301. EPA
acknowledged stakeholders’ concerns that the statutory quotas
for total renewable fuel will become infeasible due to an
infrastructure and market-related constraint on ethanol demand
known as the “E10 blendwall.” See id. at 9301. (This
blendwall arises because most U.S. vehicle engines were not
designed to handle gasoline consisting of more than 10 percent
ethanol; exceeding that limit will void the engines’ warranties.)
Given that most renewable fuel in the U.S. is corn ethanol and
that the applicable volumes for renewable fuel are increasing
each year while total gasoline consumption is flat or declining,
some suggested that the RFS program may soon require
obligated parties to sell more renewable fuel than the U.S.
market can absorb. Although many commenters supported the
proposed standards, the petroleum industry commented that the
standards were unrealistic and economically damaging,
Comments of American Fuel & Petrochemical Manufacturers at
2–3 (Apr. 8, 2013), and urged EPA to reduce the cellulosic
biofuel quota even further than was proposed, noting that in
February 2013 the Energy Information Administration (“EIA”)
had “lowered [its] estimate” of cellulosic biofuel production, id.
at 10. The national trade association also urged EPA to “waive
the entire RFS” or “at a minimum,” to “reduce the advanced and
total [applicable] volume[s] so that the quantity of ethanol
mandated is less than 10% of gasoline demand,” id. at 2,
pointing to a steep increase in RIN prices as evidence that the
E10 blendwall had been reached, see id. at 4.
EPA maintained the statutorily mandated volume for total
renewable fuel in the Final Rule but made other adjustments,
including further reducing the applicable volume for cellulosic
8
biofuel from 14 million gallons to 6 million gallons in light of
updated information from the producing companies and EIA.
See 78 Fed. Reg. at 49,803. Based on updated EIA information,
EPA also revised downward its projection of total gasoline and
diesel use in 2013, which had the effect of slightly increasing the
renewable fuel standards. See id. at 49,825 n.76, 49,826. EPA
further adjusted the renewable fuel standards to account for a
small refinery exemption that had been granted after publication
of the proposed rule. See id. at 49,825–26. And, in light of the
issuance of the Final Rule past the statutory deadline, EPA
extended the 2013 compliance demonstration deadline to June
30, 2014. See id. at 49,799–800, 49,823. Monroe Energy
petitions for review and PBF Holding Company intervenes in
support.
II.
Monroe Energy contends that EPA acted arbitrarily when
it declined to exercise its discretion to reduce the 2013
applicable volume for total renewable fuel, thereby requiring use
of more renewable fuel than the economy can absorb given the
E10 blendwall. Moreover, Monroe Energy maintains, EPA’s
decision imposes substantial and disproportionate costs on
independent refiners without serving any statutory purposes.
Additionally, it contends the consequences of EPA’s “irrational”
rule, Monroe Energy Pet’r’s Br. 12, are aggravated by EPA’s
tardiness in issuing the Final Rule after the statutory deadline
had passed, depriving parties of the opportunity to adjust their
production levels or else choose to export. Our standard of
review is established under 42 U.S.C. § 7607(d)(9). See also
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463
U.S. 29, 43 (1983); Nat’l Shooting Sports Found., Inc. v. Jones,
716 F.3d 200, 214 (D.C. Cir. 2013).
9
A.
As a threshold matter, we address a challenge to Monroe
Energy’s standing under Article III of the Constitution.
Respondent-intervenors — National Biodiesel Board,
Biotechnology Industry Organization, Growth Energy, and
Renewable Fuels Association — maintain that Monroe Energy’s
“brief makes clear that its claimed injury is the result of actions
by third parties in response to economic and regulatory
incentives — such as ‘banking’ or ‘hoarding’ RINs, or offering
them at prices Monroe finds undesirable.” Resp’t-Intv’nrs’ Br.
13 (citations omitted). They maintain that Monroe Energy
cannot show causation or redressability because its theories
depend on speculation about how third parties might react to
different regulatory incentives.
The cases on which respondent-intervenors rely, such as
Simon v. Eastern Kentucky Welfare Rights Organization, 426
U.S. 26, 40–46 (1976), and Allen v. Wright, 468 U.S. 737,
757–59 (1984), are not dispositive because they did not involve
parties who were the direct objects of the government actions
being challenged. See Simon, 426 U.S. at 42–43; Allen, 468
U.S. at 746, 757. Here, Monroe Energy is contesting its own
compliance obligations under the RFS program as implemented
in the Final Rule. See Int’l Fabricare Inst. v. EPA, 972 F.2d
384, 390 (D.C. Cir. 1992). Congress has established a
renewable fuel program that includes a credit trading program
for the benefit of obligated parties like Monroe Energy. Not
only must Monroe Energy meet renewable fuel requirements
subject to penalties for noncompliance, see 42 U.S.C.
§§ 7545(d), 7524(b)–(c), respondent-intervenors acknowledge
that Monroe Energy “must submit RINs to demonstrate
compliance,” Resp’t-Intv’nrs’ Br. 13. Whether RIN prices are
high or low, and whether third parties play a role in determining
those prices, is irrelevant to Monroe Energy’s standing so long
as RINs cost something. The more rigorous the fuel standards,
10
the more RINs Monroe Energy will have to purchase.
Because the financial burden of purchasing RINs is a
cognizable injury-in-fact, and it is fairly traceable to the 2013
fuel standards and remediable by vacatur of the Final Rule, see
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992), we
hold that Monroe Energy has Article III standing to challenge
the Final Rule.
B.
Turning to the merits, the Clean Air Act provides that if
EPA reduces the cellulosic biofuel requirement, as it did here,
then it “may also reduce” the advanced biofuel and total
renewable fuel quotas “by the same or a lesser volume.” 42
U.S.C. § 7545(o)(7)(D)(i). There is no requirement to reduce
these latter quotas, nor does the statute prescribe any factors that
EPA must consider in making its decision. See id. In the
absence of any express or implied statutory directive to consider
particular factors, EPA reasonably concluded that it enjoys
broad discretion regarding whether and in what circumstances
to reduce the advanced biofuel and total renewable fuel volumes
under the cellulosic biofuel waiver provision. “[W]hen a statute
is silent with respect to all potentially relevant factors, it is
eminently reasonable to conclude that the silence is meant to
convey nothing more than a refusal to tie the agency’s hands.”
Catawba Cnty., N.C. v. EPA, 571 F.3d 20, 37 (D.C. Cir. 2009)
(quotation marks and alterations omitted); see also Entergy
Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498, 1508 (2009);
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.
837, 843 (1984).
EPA exercised its waiver discretion in a reasonable manner,
focusing on “the availability of renewable fuels that would
qualify as advanced biofuel and renewable fuel, the ability of
those fuels to be consumed, and carryover RINs from 2012.”
11
Final Rule, 78 Fed. Reg. at 49,797. EPA first determined that
although production of cellulosic biofuel would be much lower
than the statutory volume, the resulting shortfall in the advanced
biofuel category could be made up using other types of
advanced biofuel, particularly biomass-based diesel and
imported sugarcane ethanol. See id.; see also id. at 49,812–20.
This conclusion was supported by substantial evidence,
including production estimates for biomass-based diesel,
consideration of incentives produced by the reinstatement of the
biodiesel tax credit, and an analysis of sugarcane ethanol trade
with Brazil. See id. at 49,812–20. EPA reasonably decided that
because the advanced biofuel quota could be achieved, the quota
did not need to be reduced.
EPA next considered whether the total renewable fuel quota
could also be met, taking into account the constraints imposed
by the E10 blendwall. See id. at 49,820–22. Specifically, EPA
estimated the volumes of ethanol and non-ethanol renewable
fuel that could be used to satisfy the statutory requirement. See
id. at 49,820. EPA concluded, based on conservative
assumptions that were likely to “overstate the volume of ethanol
that would have to be consumed,” that 14.5 billion gallons of
ethanol consumption would be necessary. Id. at 49,820–21.
EPA acknowledged this figure was 1.4 billion gallons in excess
of the projected blendwall; in other words, 1.4 billion gallons
more than the consumer market would likely absorb. See id. at
49,821. EPA nevertheless concluded that an adjustment to the
statutory volume for total renewable fuel was unnecessary
because, in addition to the fact that these estimates represented
an improbable worst case scenario, there were also more than
enough carryover 2012 RINs in the market to enable obligated
parties to demonstrate compliance. See id. at 49,821, 49,823.
Indeed, the number of carryover RINs — more than 2.6 billion
— was almost double the amount needed, even in the most
pessimistic scenario. See id.
12
Intervenor PBF Holding Company lodges a statutory
challenge to EPA’s refusal to reduce the fuel quotas,
maintaining that EPA was “unambiguously” required under 42
U.S.C. § 7545(o)(7)(D)(i) to look solely at the projected
volumes of advanced biofuel and total renewable fuel that could
be consumed in 2013 — not at other factors such as the
existence of carryover RINs. This contention is meritless. As
noted, the cellulosic biofuel waiver provision identifies no
factors that EPA must or may not consider when making its
decision; in light of that statutory silence, EPA was entitled to
conclude, as it did, that it had wide latitude to consider a range
of factors as appropriate. See, e.g., Catawba Cnty., 571 F.3d at
37. To the extent PBF Holding Company alternatively contends
that EPA “did not clearly identify” the factors it considered,
Pet’r-Intv’nr’s Br. 29, that argument is beyond the scope of the
issues raised by petitioners, see Nat’l Ass’n of Regulatory Util.
Comm’rs v. ICC, 41 F.3d 721, 729 (D.C. Cir. 1994), and so not
properly before the court.
Intervenor PBF Holding Company contends as well that
EPA’s consideration of 2012 carryover RINs is unreasonable
because it “undermines the flexibility that Congress sought to
preserve to obligated parties” through the RIN-trading system.
Pet’r-Intv’nr’s Br. 34. EPA explained, however, that “carryover
RINs are a valid compliance mechanism” and a means for
obligated parties to “protect[] against any potential supply
shortfalls that could limit the availability of RINs.” Final Rule,
78 Fed. Reg. at 49,822 (emphasis added). Further, EPA noted
it was logical to assume that 2012 carryover RINs would be
used for compliance in 2013 because otherwise they would
expire and become useless. See id. EPA reasonably concluded
that “the availability of carryover RINs [wa]s certainly relevant”
to its decision whether to reduce the volume requirement for
total renewable fuel. Id.
13
Monroe Energy’s contention that EPA’s decision to
maintain the statutory volume for total renewable fuel is
arbitrary because it does not serve “any statutory purpose,”
Monroe Energy Pet’r’s Br. 14, also lacks merit. In the Final
Rule, EPA identified several ways in which preservation of the
requirement helps “ensure” that U.S. transportation fuel
“contains at least the applicable volume[s]” prescribed in the
statute. 42 U.S.C. § 7545(o)(2)(A)(i) (emphasis added). For
example, maintaining the requirement would create “demand
pressure” to increase consumption of E85 (a higher-ethanol
blend of gasoline), which would in turn effectively ‘raise’ the
blendwall. Final Rule, 78 Fed. Reg. at 49,821. Additionally,
even assuming that the E10 blendwall imposes a firm cap on
ethanol consumption, maintaining the statutory requirement for
total renewable fuel would promote the use of non-ethanol
renewable fuels such as biodiesel. See id. at 49,822.
Respondent-intervenors point out that “[t]he volumes provide an
incentive for continued investment and innovation,” which “in
turn, leads to reduced petroleum emissions and increased energy
security benefits.” Resp’t-Intv’nrs’ Br. 18.
Nor does Monroe Energy’s contention that EPA wrongfully
failed to consider an “important aspect of the problem,” namely,
obligated parties’ incentive to bank 2013 RINs, Monroe Energy
Reply Br. 5 (quoting State Farm, 463 U.S. at 43), withstand
scrutiny. Although “EPA determined that 2.6 billion RINs have
been carried over from 2012 into 2013,” Monroe Energy
maintains that “an even greater number of RINs — at least three
billion — can be carried over from 2013 to 2014.” Monroe
Energy Pet’r’s Br. 15. As a result, it claims that “the market will
be 1.8 billion RINs short of what is needed for parties to comply
in 2013, even after counting every banked 2012 RIN.” Id. at 16.
In its view, EPA analyzed only “one side of the equation,” Oral
Arg. 00:41–43, considering the carry-over of RINs from the
prior year, but ignoring the carry-over of RINs into the
14
subsequent year.
In the Final Rule, EPA considered the likelihood that “those
who own carryover RINs may opt to not sell them, instead
carrying them over to help assure compliance with their own
obligations in a future year.” Final Rule, 78 Fed. Reg. at 49,822.
EPA acknowledged that it was not possible to “determine what
fraction of carryover RINs may fall into this category.” Id.
Nevertheless, even with parties’ incentive to bank 2013 RINs,
EPA concluded that “the blendwall w[ould] [not] represent an
impediment to compliance in 2013 due to the availability of
carryover RINs from 2012, opportunities for some increase in
consumption of E85, and opportunities for non-ethanol
biofuels.” Id. at 49,823. EPA’s reference to “those who own
carryover RINs,” id. at 49,822, could reasonably be understood
in context to mean those who own 2013 RINs and would carry
them over for use in 2014. Although EPA’s analysis was not as
robust at it might have been, the court “will uphold a decision of
less than ideal clarity if the agency’s path may reasonably be
discerned.” Bowman Transp. v. Arkansas-Best Freight Sys.,
Inc., 419 U.S. 281, 286 (1974). Two aspects of EPA’s
discussion bear out that it adequately considered the RIN-
banking phenomenon of concern to Monroe Energy.
First, EPA recognized that obligated parties have “various
alternative methods to comply” with the standards besides
blending ethanol as E10. Final Rule, 78 Fed. Reg. at 49,822.
For example, EPA explained that “there is unused biodiesel
production capacity and sufficient feedstocks available to permit
biodiesel production in excess of [the applicable volume] if
demand for it exists.” Id.; see also id. at 49,820. Because
biodiesel is different from ethanol, its use is not limited by the
E10 blendwall. EPA stated that “[a]s of February 2013, the
aggregate production capacity of registered biodiesel plants in
the U.S. was [approximately 4.2] bill[ion] gal[lons] per year
15
across 171 facilities” and that “[t]he biodiesel industry has
demonstrated that it can increase production quickly under
appropriate circumstances.” Id. at 49,813. Moreover, EPA
observed that the recent reinstatement of the biodiesel tax credit
was expected to provide an “additional incentive to produce and
consume biodiesel volumes in excess of” the required amount.
Id. Respondent-intervenors note that EPA’s projections were
borne out: biodiesel RIN generation in 2013 totaled over 2.71
billion gallons, nearly 800 million higher than EPA’s
conservative estimate had assumed. See Resp’t-Intv’nrs’ Br. 21
n.12.2 The magnitude of the purported RIN deficit is therefore
not as large as Monroe now contends. See Monroe Energy
Pet’r’s Br. 16.
Second, recognizing the multi-year character of RIN-
banking decisions, EPA postponed the 2013 compliance
deadline until after the announcement of the 2014 fuel standards.
See Final Rule, 78 Fed. Reg. at 49,823. EPA concluded (and
Monroe Energy does not dispute) that the “primary driver”
behind rising RIN prices was “anticipation of future scarcity.”
Id. at 49,822 (emphasis added). Indeed, Monroe Energy agrees
with EPA that “[p]arties[] [were] apprehensi[ve] that, going
forward, EPA would require them to demonstrate compliance
with volume requirements that could not be achieved[.]”
Monroe Energy Reply Br. 3 (emphasis added). To that extent,
then, the complained-of RIN scarcity depends as much on what
EPA might require in 2014 as it does on the challenged 2013
standards. The 2014 requirements determine the number of
2013 RINs that may be banked, as well as whether reliance on
banked RINs will be necessary (as opposed to merely helpful)
for compliance with obligations in 2014. If it were known that
2
2013 RFS2 DATA: RIN GENERATION SUMMARY,
http://www.epa.gov/otaq/fuels/rfsdata/2013emts.htm (last visited Apr.
17, 2014).
16
2013 carryover RINs would not be needed for compliance in
2014, many of those carryover RINs would presumably become
available for sale. EPA observed that “[k]nowledge of the
volume requirements for 2014 is crucial to the strategies that
obligated parties may implement when purchasing RINs and wet
gallons of fuel for compliance with their individual 2013
[renewable volume obligations].” Final Rule, 78 Fed. Reg. at
49,823; cf. 2007 RFS, 72 Fed. Reg. at 23,903. EPA could
reasonably conclude that sufficient RINs would be available for
compliance in 2013 because EPA intended, before the 2013
compliance deadline, “to establish [2014] volume requirements
that are reasonably attainable.” Final Rule, 78 Fed. Reg. at
49,823 (emphasis added). These 2014 requirements would
reflect “adjustments . . . to both the advanced biofuel and total
renewable fuel categories” and would embody a “reasonable
path forward that appropriately addresses the blendwall and
other constraints.” Id. In fact, EPA followed through on these
commitments, proposing to reduce the 2014 applicable volumes
for advanced biofuel and total renewable fuel in light of “both
availability of qualifying renewable fuels and constraints on
their consumption.” 2014 Standards for the Renewable Fuel
Standard Program, 78 Fed. Reg. 71,732, 71,734, 71,737 (Nov.
29, 2013). Of course, the price of 2013 RINs might still be
higher than Monroe Energy would prefer, because the owners of
RINs might wish to rely on them to preserve compliance
flexibility in the next year. But so long as sufficient RINs exist
for obligated parties to meet the fuel standards, the court has no
ground to conclude the 2013 standards are unlawful simply
because RINs are costlier than in prior years, especially as high
RIN prices should, in theory, incentivize precisely the sorts of
technology and infrastructure investments and fuel supply
diversification that the RFS program was intended to promote.
Still, Monroe Energy maintains that “even if compliance
were feasible,” EPA’s rule imposes disproportionate hardship on
17
independent refiners, “who must acquire their RINs on the
secondary market, and who therefore must pay . . . high and
unpredictable prices for every RIN they need.” Monroe Energy
Pet’r’s Br. 17–18. To the extent Monroe Energy contends that
EPA could have eliminated the asserted “disproportionate”
hardship on independent refiners by placing compliance
obligations on blenders rather than on refiners and importers,
that challenge is not properly before the court. It was not at
issue in this rulemaking, and because the decision to place
compliance obligations on importers and refiners, rather than
blenders, was reaffirmed in 2010, see 2010 RFS, 75 Fed. Reg.
at 14,722, the time to challenge that decision has passed, see 42
U.S.C. § 7607(b)(1); Am. Road & Transp. Builders Ass’n v.
EPA, 588 F.3d 1109, 1115 (D.C. Cir. 2009); Motor & Equip.
Mfrs. Ass’n v. Nichols, 142 F.3d 449, 460 (D.C. Cir. 1998).
C.
Monroe Energy also seeks vacatur of the Final Rule because
it was untimely issued. Section 211(o) required the 2013
renewable fuel standards to be issued no later than November
30, 2012, see 42 U.S.C. § 7545(o)(3)(B)(i), but EPA missed this
deadline by many months. Monroe Energy therefore contends
that EPA lacked authority to promulgate the 2013 standards and
then to apply those standards “retroactively” to the entire
compliance year. Even if EPA had such authority, Monroe
Energy contends, alternatively, EPA exercised its authority
unreasonably. Neither contention is persuasive.
In National Petrochemical & Refiners Ass’n v. EPA, 630
F.3d 145 (D.C. Cir. 2010), the court resolved the question of
EPA’s authority when EPA missed the statutory deadline for
formally announcing the annual renewable fuel standards.
There the national trade association challenged the 2010 RFS on
grounds that missing the deadline divested EPA of authority to
issue the fuel standards, and, alternatively, that the rule was
18
“impermissibly retroactive” and “violate[d] statutory lead time
and compliance provisions.” Id. at 147, 152. The court held
that EPA had not forfeited its authority to promulgate the
challenged standards, id. at 158, applying the well-established
principle that “where there are less drastic remedies available for
an agency’s failure to meet a statutory deadline, courts should
not assume Congress intended for the agency to lose its power
to act,” id. at 154 (citing Brock v. Pierce Cnty., 476 U.S. 253,
260 (1986)). In section 211(o), Congress “directed EPA to
‘ensure’ that ‘at least’ the set volumes [of renewable fuel] were
used each year,” id. at 156; in light of that directive, and
considering the overall statutory scheme and legislative history,
the court concluded that it was “highly unlikely that . . .
Congress intended . . . that EPA’s failure timely to issue the . . .
2010 standard would lead to the drastic and somewhat
incongruous result” of precluding EPA from fulfilling its
statutory mandate, id. at 156–57 (quotation marks and citation
omitted). The court also rejected the trade association’s
“retroactivity” challenge, holding that “any . . . retroactive
effects were implicitly authorized under the [statute] and EPA
reasonably balanced any retroactive effects against the benefits
of applying the [fuel standard] regulations to the full calendar
year.” Id. at 162. The court dismissed the “lead-time” challenge
as having no “meaningful difference” from the retroactivity
challenge. Id. at 166.
Attempting to distinguish National Petrochemical, Monroe
Energy points to the court’s statement that “Congress anticipated
the possibility of some retroactive impacts in the first year of the
renewable fuel program.” Id. at 163 (emphasis added). This
disregards the broader issue before the court, namely,
“Congress’ focus on ensuring the annual volume requirement
was met regardless of EPA delay.” Id. That congressional
“focus” is no less compelling here, notwithstanding Monroe
Energy’s contention, and so compels the same outcome. Indeed,
19
the “retroactivity” label may somewhat overstate the issue. See
id. at 162. The statute set the renewable fuel obligation, and
Monroe Energy had no legally settled expectation that EPA
would exercise its waiver authority to reduce that obligation.
See NRPM, 78 Fed. Reg. at 9295. Further, EPA finalized its
standards during the compliance year, well before the
compliance demonstration deadline, so the rule did not change
the legal effect of a completed course of conduct. Cf. Landgraf
v. USI Film Prods., 511 U.S. 244, 280 (1994).
Alternatively, Monroe Energy contends that even if EPA
had authority to act as it did here, EPA failed to exercise that
authority in a reasonable manner. EPA acknowledged the
lateness of the Final Rule and considered various ways to
minimize the hardship caused to obligated parties, ultimately
concluding that the best way to balance obligated parties’
interest in regulatory certainty with EPA’s statutory obligation
to ensure the renewable fuel volumes are annually met was to
extend the compliance demonstration deadline by four months
to June 30, 2014. See Final Rule, 78 Fed. Reg. at
49,799–49,800, 49,823. Because EPA “anticipate[d] issuing a
final rule establishing the 2014 RFS standards as soon as
possible before that date,” the extension was designed to give
obligated parties an opportunity “to take their 2014 obligations
into consideration as they determine how to utilize RINs for
2013 compliance.” Id. at 49,800.
Monroe Energy’s position that EPA should have waived the
2013 standards altogether because obligated parties needed
advance notice in order to “make informed business decisions
that w[ould] affect their compliance obligations,” such as
deciding “whether to reduce production of blendstock” and
“whether to sell blendstock domestically . . . or export it,”
Monroe Energy Pet’r’s Br. 25, ignores salient facts. Obligated
parties had long been aware of the applicable volumes
20
prescribed in the statute. See 42 U.S.C. § 7545(o)(2)(B)(i).
They could readily have estimated their respective obligations
using the EIA’s October 2012 projections of fuel production and
consumption. See NPRM, 78 Fed. Reg. at 9286 n.4. The only
major point of uncertainty was whether EPA would reduce any
of the applicable volumes pursuant to its waiver authority, and
that uncertainty was eliminated when EPA stated in February
2013 that it was “not proposing to reduce the required volumes
of advanced biofuel and total renewable fuel for 2013.” Id. at
9295. Moreover, EPA counsel suggested that the delays in 2010
and 2013 arose because EPA was addressing “novel policy
issues,” whereas in the other years the final standards were
promulgated on time or within weeks of the statutory deadline.
Oral Arg. 35:52–37:40. All told, EPA’s decision to preserve the
2013 fuel standards while extending the compliance deadline to
June 30, 2014 was reasonable. Cf. Nat’l Petrochem., 630 F.3d
at 162–63.
Accordingly, we deny Monroe Energy’s petition for review.