EPA COVID-19 Response Delays Waiver Changes

Cindy Zimmerman

The U.S. Environmental Protection Agency (EPA) on Friday announced several steps being taken to protect the nation’s gasoline supply in response to the COVID-19 pandemic, including making any changes in its policy of granting small refinery waivers as a result of the recent 10th Circuit Court decision.

EPA does not intend to unilaterally revisit or rescind any previously granted small refinery exemptions issued for prior compliance years. As noted in the temporary policy on COVID-19 Implications for EPA’s Enforcement and Assurance Program, issued yesterday, EPA is focused on protecting our employees and ensuring continued protection of public health and the environment from acute or imminent threats during the COVID-19 pandemic. Therefore, investigating and initiating enforcement actions against small refineries that were previously subject to an exemption is a low priority for the agency. EPA intends to develop an appropriate implementation and enforcement response to the Tenth Circuit’s decision in RFA v. EPA once appeals have been resolved and the court’s mandate has been issued.

Last week, 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.

“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,” said Renewable Fuels Association (RFA) president and CEO Geoff Cooper. “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.”

The American Coalition for Ethanol (ACE) was another of the four plaintiffs in the court case. “As our plaintiff group said on Wednesday of this week, we appreciate the Trump Administration’s decision not to appeal our victory regarding SREs under the RFS in the Tenth Circuit Court,” said ACE CEO Brian Jennings. “While we urge EPA to immediately announce it will apply the Tenth Circuit’s precedent nationwide, ensuring a more legally-sensible approach to SREs going forward, it’s disappointing to learn the Agency prefers to punt this decision until the Tenth Circuit has deliberated on the appeal by HollyFrontier and CVR. We continue to believe the appeal by HollyFrontier and CVR has no merit. We fully expect EPA to comply with the law and end the mismanagement of the RFS. The economic fall-out of COVID-19 is doing substantial damage to the ethanol industry and we expect the Trump Administration to leave no stone unturned in responding instead of only benefiting oil at the expense of rural America.”

ACE, EPA, Ethanol, Ethanol News, RFA