Growth Energy, Clean Fuels file new opening brief in long-stayed RVO case

Growth Energy, along with Clean Fuels Alliance America, filed a new opening brief Nov. 20 with the U.S. Court of Appeals for the D.C. Circuit (Case No. 20-1046) challenging the U.S. EPA’s failure to fully account for small-refinery exemptions (SREs) when issuing renewable volume obligations (RVO) under the Renewable Fuel Standard. 

In their brief, the parties seek to ensure that RVOs account for SREs the agency issued for past years.

Current regulations require EPA only to project future SREs when establishing future RVOs, while ignoring biofuel demand destroyed by past SREs granted retroactively, totaling more than 4 billion gallons in recent years. 

“EPA’s RVO regulations fail to account for the billions of gallons of demand lost to the agency’s mismanagement of the Renewable Fuel Standard,” said Growth Energy CEO Emily Skor. “Regulators took one step forward during the first Trump administration by recognizing the future impact of oil-industry handouts, but since then EPA has never attempted to repair the damage from past handouts that continues to weigh down the biofuels industry and our farm partners. That has to change.” 

EPA published the original 2020 RVO on Feb. 6, 2020.

The RVO was challenged in the D.C. Circuit by several parties soon thereafter.

Growth intervened in support of parts of the rule on behalf of EPA and, separately, petitioned the court to challenge EPA’s failure to account for past SREs.

After the cases were consolidated (Case No. 20-1046), and after initial briefing in late 2020, the court granted motions to stay the consolidated cases pending the Supreme Court’s decision on SRE eligibility in HollyFrontier v. EPA.

The case proceeded until December 2021, when EPA issued a new proposed rule for the 2020 RVO as well as 2021-’22 RVOs and sought remand without vacatur of the original 2020 RVO.

The court deferred decision on remand and continued to stay the case.

EPA’s final 2020-’22 RVOs also failed to account for past SREs.

The court continued to stay the original 2020 RVO case until after the D.C. Circuit’s opinion on new cases challenging the new 2020-’22 RVOs.

The D.C. Circuit upheld the new 2020-’22 RVOs on May 14, 2024, (Case No. 22-1210), after which time the court lifted the stay on the original 2020 RVO challenge and set a briefing schedule.