The Renewable Fuels Association this week requested that the Fifth Circuit Court of Appeals rehear the challenge brought by certain oil refineries seeking exemptions from the Clean Air Act’s Renewable Fuel Standard (RFS).

In November 2023, the Fifth Circuit determined it was the proper venue to hear a challenge brought by six small refineries who saw their RFS compliance exemption petitions denied by the U.S. Environmental Protection Agency and ultimately sided with the refiners and overturned EPA’s denial of those exemption petitions.

The petition for rehearing from RFA and other interested parties claims that the D.C. Circuit Court of Appeals is the only proper venue for hearing such challenges.

The Clean Air Act specifies that the D.C. Circuit is the only appropriate court to hear challenges regarding EPA actions that are “nationally applicable” and considered by the agency to have nationwide scope or effect. According to RFA’s petition, “The D.C. Circuit has exclusive venue over challenges to EPA’s April and June 2022 decisions to deny small refinery petitions for exemptions from compliance with the RFS program. The panel erred in declining to transfer this case to that Court.”

RFA’s petition points out that the Fifth Circuit’s decision to hear the refiners’ challenge departs from the court’s precedent and past practices. RFA also notes that four other Circuit Courts transferred similar cases to the D.C. Circuit—or dismissed them altogether. Further, the dissenting opinion in the Fifth Circuit’s November 2023 decision agreed that the proper venue for these challenges is the D.C. Circuit because the SRE denials “are inescapably nationally applicable.”

According to RFA, a rehearing is necessary to avoid important and substantial adverse consequences not only to the RFS program and biofuel producers, but also to established precedent on the Clean Air Act’s venue provisions.