The Trump administration plans to fight an appellate court ruling that called into question the Environmental Protection Agency’s awarding of biofuel mandate waivers, sources tell Agri-Pulse.
The 10th U.S. Circuit Court of Appeals struck down three small refinery exemptions (SREs), something EPA Administrator Andrew Wheeler told reporters last month had “the potential of changing the small refinery program.” The administration's decision to appeal the ruling, rather than change EPA policy, deals a blow to biofuel interests who wanted to see the ruling — which would dramatically reduce the amount of facilities eligible for a waiver — implemented nationally.
The decision comes after intervention from oil interests as well as pro-oil members on Capitol Hill and within the administration. It represents a reversal from just a week ago, when administration officials behind closed doors were planning to stick with the ruling. Agriculture Secretary Sonny Perdue went as far as to publicly say the ruling would lead to EPA cutting the waivers “significantly.”
The exemptions are given to small refineries — those with daily production of less than 75,000 barrels — who say complying with the Renewable Fuel Standard would cause them undue economic harm. Renewable fuel groups say the waivers have been awarded too flippantly in the past few years, when waived gallons have dramatically increased, but the administration has said the increase was the result of a court case.
Biofuel groups made no attempt to hide their displeasure with the news; nine groups issued a blistering statement directing particular angst at Texas Republican Sen. Ted Cruz, who has been said to have played a key role in calling for the appeal.
““The president needs to understand that Ted Cruz doesn’t care about this administration or families across the heartland who are counting on the White House to keep its promises,” the groups said. “We cannot stress enough how important this decision is to the future of the rural economy and to President Trump’s relationship with leaders and voters across the heartland.”
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The statement — jointly released by the National Corn Growers Association, the Renewable Fuels Association, the American Soybean Association, the National Farmers Union, Growth Energy, the American Coalition for Ethanol, the National Biodiesel Board, the Iowa Renewable Fuels Association, and Fuels America — went on to accuse Cruz of coming back “year after year with the same lies about refinery profits, disproven over and over by economists, the EPA, and even by Big Oil. We urge the president to stand up now against this misguided effort to torpedo the rural recovery.”
A spokesperson for Sen. Cruz did not immediately respond to a request for comment.
While the decision to appeal the ruling is an obvious setback for biofuel groups, it doesn’t necessarily guarantee a negative outcome. The 10th Circuit would still need to agree to rehear the case en banc — with the full contingent of judges rather than a three-judge panel — and would need to change its original ruling.
But the groups are also concerned about the length of time an appeal could take. The decision could be pushed past the November election, leaving the current status of the SRE program in limbo as EPA considers applications for relief from the 2019 compliance year. Last year, decisions on 31 waivers from the 2018 compliance year were announced in August.
A spokesperson for the EPA said the agency was “still reviewing the 10th circuit decision” and noted the deadline for a decision is Monday, March 9.
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