In the United States (US), the National Biodiesel Board (NBB) has expressed frustration with a Court decision declining to review the Environmental Protection Agency's (EPA) refusal to "properly account" for its "flood" of retroactive small refinery exemptions. The US Court of Appeals for the DC Circuit dismissed on technical grounds NBB's petition on the 2018 Renewable Fuel Standard (RFS) rule.
NBB challenged EPA’s decision to continue ignoring small refinery exemptions granted after the annual rule is established, even though the agency quietly ramped up granting these exemptions as it took comment on the rule.
The Court dismissed NBB’s petition on the grounds that the biofuel industry did not comment on the topic and provide EPA sufficient opportunity to address those comments.
The Court declined to examine EPA’s “flood” of small refinery exemptions but left room for future challenges on the issue.
The Court’s decision is frustrating. EPA requested comment on its practice of ignoring retroactive small refinery exemptions but did not give notice of its intent to unleash a flood of the exemptions. The Court, however, faults the industry for not commenting specifically on that. EPA’s flood of retroactive small refinery exemptions are causing severe economic harm to biodiesel and renewable diesel producers, forcing some to close their doors and lay off workers. It’s disappointing that the Court did not take this opportunity to address that harm, said Kurt Kovarik, NBB’s Vice President of Federal Affairs.