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DC Circuit hears challenge to EPA's 2019 biofuel mandate, small refinery waivers


Court's decision not expected until at least December

Ethanol issues remain at center of fight for rural voters

Washington — Ethanol trade group Growth Energy took its challenge of the Environmental Protection Agency's 2019 biofuel blending mandate before an appeals court Sept. 25, arguing the agency should have taken small-refinery waivers into account before setting the required volumes.

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Growth Energy contends that by not accounting for gallons waived through small-refinery exemptions, EPA failed to ensure that annual blending obligations are met.

A three-judge panel of the US Court of Appeals for the District of Columbia Circuit heard the case by teleconference, focusing much of the questioning on whether the complaint was timely and biofuel makers had standing.A decision is not expected until at least December or January.

S&P Global Platts assessed D6 ethanol RINs for 2020 compliance at 47.5 cents/RIN Sept. 25, 75 points higher on the day.

D4 biodiesel RINs increased 1.25 cent/RIN day on day to be assessed at 75 cents/RIN Sept. 25.

The Renewable Fuel Standard allows refineries that process less than 75,000 b/d of crude to petition for exemptions, which get reviewed by the Department of Energy and the EPA.

Biofuel producers and farm-state senators have complained for years about the Trump administration's widespread granting of the waivers, arguing they have eroded billions of gallons in biofuel blending demand required by the RFS.

In early September, the Trump administration rejected 54 petitions for small-refinery waivers for the 2011-18 compliance years. The announcement was seen as an election-year move to shore up support for President Donald Trump in the Midwest and for Senator Joni Ernst, Republican-Iowa.

EPA is still considering 17 requests for retroactive waivers for 2011-18 compliance, 29 requests for waivers of 2019 blending mandates and four requests for 2020 waivers.

Joe Kakesh, Growth Energy's general counsel, said the 2019 RVO lawsuit is part of the group's legal strategy to challenge EPA's failure to make up for lost RINs caused by the small-refinery exemptions that have already been granted and failing to project or incorporate "what it full well knows will be retroactive exemptions."

The group also aims to challenge the underlying validity of the exemptions and the secrecy surrounding the waiver process, Kakesh said in a briefing after oral arguments.

Growth Energy CEO Emily Skor said several recent actions by Trump -- including a Sept. 12 tweet allowing fuel stations to use E10 pumps for E15 fuel -- showed the importance of the biofuel industry to rural voters.

"If you look at the amount of attention that ethanol issues and exemptions have gotten among the candidates for president ... it's recognition that ethanol is a lynch pin for any conversation for reigniting the rural economy," she said.